Phelps Dodge Corp.

In the Matter of PHELPS DODGE CORPORATION, COPPER QUEEN BRANCH, SMELTER DIVISION and SOUTHERN ARIZONA SMELTERMEN'S UNION, 'LocAL No. 470, INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS, C. I. O. Case No. C 1357.Decided December 11, 1940 Jurisdiction : copper refining industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements; interrogation concerning union activities; threats of discrimination. Company-Dominated Union: employee representation plan-formation after validation of Act of successor organization similar in structure to predeces- sor-participation of management's representatives in formation of : solicita- tion of members, attendance at meetings-support to : furnishing bulletin boards to, while denying their use to "outside" union-indicia of domination : formation of successor by executive committee of dominated predecessor upon predecessor's dissolution, without opportunity for employees to accept or reject it; restricted opportunity to select officers. , Discrimination: discharge,of employee and refusals to reinstate other employees because of their union activities ; allegations of discrimination dismissed as to two employees. Remedial Orders : reinstatement and back pay. Where one of the reasons for a refusal to reinstate an employee alleged to be unfit for work was his union activity, the Board ordered his reinstate- ment upon a doctor's certification of his fitness for employment. Mr. Charles M. Brooks, for the Board. Ellinwood & Ross, by Mr. Denison KKitchel, of Phoenix, Ariz., for the respondent. Mr. Henry W. Beumler, of Douglas, Ariz., for the Association. Mr. Ralph H. Rasmussen, of Douglas, Ariz., for the Union. Mr. Eugene R. Thorrens and Mr. Milton E. Harris, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Southern Ari- zona Smeltermen's Union No. 470, International Union of Mine, 28 N. L. R. B., No. 73. 442 PHELPS DODGE CORPORATION 443 Mill & Smelter Workers, C. I•. 0., herein called the Union,' the Na- tional Labor Relations Board, herein called the Board, by its Regional Director for the Twenty-first Region (Los Angeles, California)', issued a complaint, dated May 17, 1939, and an amendment thereto, dated May 22, 1939, against Phelps Dodge Corporation, herein called the respondent, alleging that the respondent, at its plant at Douglas, Arizona, known as its Copper Queen Branch, Smelter Division 2 herein called the Douglas plant, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), 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 amendment thereto, accompanied by notice of hearing, were duly served upon the respondent and the Union, and upon Douglas Smeltermen's Association, herein called the Associa- tion, alleged in the complaint to be a company-dominated labor organization. With respect to the unfair labor practices, the complaint and amendment thereto alleged in substance that the respondent at its Douglas. plant (1) since on or about July '5, 1935, dominated and interfered with the formation and administration of, and contributed financial and other support to, a labor organization known as Em- ployees' Representation Plan, herein called the Plan, and its suc- cessor, the Association; (2) terminated the employment of Roy K. Anderson, Homer Long, Boyd Strange; Ed. E. Smith, and Joseph Carl Simmons on or about specific dates mentioned therein and there- after refused to reinstate them, and refused to reemploy Jesus Mason and Pedro O. Martinez since on or about specific dates mentioned therein, because each of the seven named persons had joined and assisted the Union and had otherwise engaged in concerted activities; and (3) at many times since on or about March 1, 1939, urged, per- suaded, and warned its employees to refrain from becoming or re- maining members of the Union and to cease their activity on behalf of the Union, threatened them with reprisals if they did not do so, made derogatory remarks about the Union, and otherwise interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On May 29, 1939, the respondent filed an answer to the complaint and the amendment thereto, admitting the allegations with respect to the nature of its business, but denying that it had engaged in any Minor variations in the Union 's signature appear in the four charges filed by it. For the purposes of the decision, we have used the designation signed to the second amended charge, the last charge filed preceding the issuance of the complaint in this pioceeding. 2 The caption of the complaint and amendment thereto omitted the words "Smelter Division " At the hearing the Trial Examiner granted without objection a motion of counsel for the Board to add those words wherever the name of the respondent appears in the record. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the alleged unfair labor practices. In addition the answer set forth that Roy K. Anderson and Homer Long "were severed from respondent's pay roll on March 9, 1939, incident to a general reduc- tion in respondent's working force" and that the respondent dis- charged Boyd Strange, Ed. E. Smith, and Joseph Carl Simmons for "cause." Pursuant to notice, a hearing was held from June 1 to June 8, 1939, inclusive, at -Douglas, Arizona, before Horace A. Ruckel, the Trial Examiner duly designated by the Board. At the opening of the hearing the Association filed a written motion to intervene in the 'proceeding, which was granted. The Trial Examiner also granted the Association permission to file an answer, but the Association did not file an answer. The Board, the respondent, and the Association were represented by counsel, and the Union by a representative. All parties participated in the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the Board's case, the Trial Examiner granted without objection a motion of coun- sel for the Board to amend the complaint to conform to the proof adduced,' and denied the respondent's motion to dismiss the com- plaint. At the conclusion of the entire case, the Trial Examiner granted without objection the respondent's motion'to dismiss the com- plaint in so far as it related to Jesus Mason; and reserved ruling on the respondent's motion to dismiss the remainder of the complaint, and on the Association's motion to dismiss the complaint in so far as it related to the Association. Thereafter, the Trial Examiner filed an Intermediate Report, dated September 9, 1939, copies of which were duly served on each of the parties, In the Intermediate Report, the Trial Examiner granted the respondent's motion to dismiss the complaint in so far as it related to Pedro 0. Martinez, Joseph, Carl Simmons, and Ed. E. Smith, denied the remainder of the respondent's motion, and also denied the Association's motion to dismiss the complaint in so far as it related to the Association. The Trial Examiner found that the respondent had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8 (1), (2), and (3) in all other respects, and recommended that the respondent cease and desist from engaging in such practices and take certain affirmative action in order to effectuate the policies of the Act. Exceptions to the Intermediate Report and other parts-of the rec- ord, and briefs in support thereof, were thereafter filed by the re- 8 In this connection , counsel for the Board and counsel for the respondent stipulated that by such amendment it was not intended to introduce additional charges of unfair labor practices. PHELPS DODGE CORPORATION 445 spondent, the Association, and the Union. Pursuant to notice, a hearing for the purpose of oral argument, in which only the respond- ent participated, was held before the Board, at Washington, D. C., on March 28, 1940. . The Board has reviewed the rulings of the Trial Examiner on motions and' on objections-to the admission of evidence and, except' as to the ruling with respect to the respondent's motion to dismiss the complaint in so far as it related to Pedro 0. Martinez, finds that no prejudicial errors were committed. For reasons hereinafter stated, we think the Trial Examiner erred in dismissing the complaint as to Martinez. In all other respects, the rulings are hereby affirmed. The Board has considered the exceptions and briefs filed by the re- spondent, the Association, and the Union, and the oral argument held before it. Save as the exceptions are consistent with the findings, conclusions, and order hereinafter set forth, the Board finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS 'OF FACT I. THE BUSINESS OF THE RESPONDENT 4 Phelps Dodge Corporation, the respondent, is a New York corpo- ration, engaged in the business of mining, refining, and fabricating copper and other metals. The respondent wholly owns numerous subsidiary mining, copper refining, copper fabricating, public utility, mercantile, railroad, and other companies in Mexico, New York, New Jersey, Indiana, California, New Mexico, Texas, and Arizona. Di- rectly and through subsidiaries, it owns extensive mining properties in Mexico and Arizona, and smelting properties in Arizona, including the Douglas plant with which this proceeding is concerned. At its Douglas plant, known as the Copper Queen Branch, Smelter Divi- sion, the respondent is engaged in the treating of ores and concen- trates. In the year 1938, of the tonnage received for treatment at the Douglas plant, 97.33 per cent came from within the State of Arizona, 2.66 per cent from Mexico, and .01 per cent from the State .of New Mexico. The respondent received 3,430,756,000 cubic feet of natural gas from Jal, New Mexico, for use in connection with th6 operation of the Douglas plant during 1938. During the same period the Douglas plant produced 109,474 tons of copper bullion, amount- ing to approximately 5 per cent of the world's copper production for that year. The respondent ships 100 per cent of its smelter produc- 4 The findings in this section are based largely upon matters set forth in a stipulation entered Into between counsel for the Board and counsel for the respondent and introduced in evidence. 446 DECISIONS OF kNAT1biVAL " LABOR ' RELATIONS BOARD tion at its'Douglits plant to the refinery of the Phelps-Dodge Refinery Corporation, a subsidiary, at El Paso, Texas. In its answer, the respondent admitted the jurisdictional allega- tions contained in the complaint and, at the oral argument before the Board, counsel for the respondent stated that its "operations are such as to affect interstate commerce," and conceded Board jurisdic- tion in this proceeding. H. THE ORGANIZATIONS INVOLVED Southern Arizona Smeltermen's Union No. 470, International Union of Mine, Mill & Smelter Workers, C. I. 0., is a labor organi- zation affiliated with the Congress of Industrial Organizations. Em- ployees' Representation Plan was and Douglas Smeltermen's Asso- ciation is an unaffiliated labor organization. The Union and the Association now admit to membership, and the Employees' Repre- sentation Plan formerly admitted to participation, the respondent's employees at its Douglas plant. III. THE UNFAIR LABOR PRACTICES A. Domination and support of the Plan 1. The Plan in 1933 In 1933 there was established at the Douglas plant a.labor organi- zation known as Employees' Representation Plan 5 to provide collet-_ tive representation for the respondent's employees." The Plan contained 11 articles embracing purpose; terms of em- ployees' representatives; qualifications of employees'. representatives and voters; electoral divisions; nominations and elections of em- ployees; organization of employees' committee [representatives] ; employees' representatives' meetings; procedure for adjustment of complaints, requests, or suggestions; duties and powers of employees' representatives; amendments; and termination of the Plan. In sub- stance, the Plan subdivided the Douglas plant into'll electoral divi- sions, each of which was entitled to one or more representatives, 6 Aside from recitals in the Plan itself, there is no other evidence in the record with respect to the details of the origin and formation of the Plan except that Floyd Biava, an employee representative, testified that when the Plan was instituted, " it was explained to us on the anode floor. I wasn 't present but I know it was explained there." 6 Article 1 of the Plan , entitled " Purpose, " states . "The employees of the Phelps Dodge Corpoiation , Copper Queen Branch , Smelter Divi- sion; in order to form an organization for the purpose of promoting closer relations between the employees and the management , to provide a method for the prompt settlement of any differences that may arise, and to provide a means whereby employees shall have a method of bargaining collectively on matters relating to working conditions , hours of labor, wages, safety and other matters of mutual interest, do hereby establish this Employees' Representation Plan for the Copper Queen Branch , Smelter Division " PHELPS DODGE CORPORATION, 447 depending on the number of employees on they pay roll of the division. It provided that non-supervisory employees in each division should by secret ballot vote to nominate and elect, semiannually in December and June of each year, employee representatives; 7 and that employ- ees so elected should serve as representatives for 1 year, except that an employee representative should automatically vacate office upon termination of his employment at the plant or upon permanent trans- fer to an electoral division other than the one he'was elected to represent. After each election, the representatives selected were to meet as the "Employees' Committee" for the purpose of electing officers from among themselves, adopting rules of procedure, and appointing sub-committees, and were to hold meetings at least once a month and keep record of the proceedings, which the Committee (night publish, if deemed advisable. - With respect to the method of dealing with the management of the Douglas plant, the Plan provided that a representative should first confer with the foreman of the department involved regarding a "complaint, request, or suggestion" arising in his electoral division ; if the pnatter was not thus satisfactorily adjusted, the representative should then refer it to the manager of the Douglas plant; and, if no settlement resulted from such reference, it should be submitted to the Employees' Committee for "investigation and complaint." The Plan made no further provision with respect to the disposition of the recommendation of the Employees' Committee. The Plan in- vested the representatives with "full power' to bargain collectively, and to enter into agreements on behalf of the employees with the Management on all questions relating to working conditions, wages, hours of labor, relationship. with the Management and other similar matters." Finally, the Plan could be amended only by a 2/3 vote of all the representatives and could be terminated by only a 2/3 vote of the employees at st special election called by the Employees' Committee. However, there was no provision whereby the employees could compel the representatives to call such an election. 2. The Plan in 1934 and 1935 At a meeting on Septenlber 6, 119341, the employees' representatives elected under the foregoing Plan and representatives of the -man- 7To be eligible for nomination as a representative of any division, the Plan required that an employee be an English-speaking citizen at least 21 years old, who had been employed at the Douglas plant for at least 1 year immediately prior to nomination and who was currently employed in the division to be represented . Nominations and elections of representatives were to be conducted and supervised by the Employees ', Committee (the retiring representatives )' pursuant to notice posted by them, the ballots to be deposited in a locked box provided for the purpose , and the results of the elections to' be posted in the various electoral divisions. 448 DECISIONS OF NATIONAL LABOR RELATIONS\ BOARD agement agreed upon what they'designated simply as a Plans estab- lishing an Industrial Council. This Plan stated that its `purpose was "to provide a method for the prompt settlement of any differ- ences that may arise, and to provide a means whereby the Employees may bargain collectively with the Management"; and provided for joint monthly, meetings between management representatives ap- pointed by the manager of the Douglas plant and employee repre- sentatives elected under the' Plan as established in 1933. It was specifically provided that the employees' representatives should be employed at the Douglas plant. A majority of the management's representatives, together with a majority of the employees' repre- sentatives,' were required for a quorum. These meetings were to be known as the Industrial Council, and were to be under the chair-' manship of the plant manager or someone designated by him; the manager was to appoint a secretary to record the proceedings, in- cluding discussions and decisions, and copies of the minutes were to be posted on bulletin boards at the plant. Each group of representa- tives was to vote as a unit and was to have "an equal voice and voting power in considering matters coming before the Council." Agree- ments reached by the Council were to be referred, each as a "recom- mendation," to the plant manager "for execution." As to any mat- ters not settled with the consent of the management's representatives at such meetings, substitute or compromise proposals could be offered, and if an agreement was still not reached the matter could be sub- mitted for final decision to arbitrators then to be selected by the two groups of representatives. The Plan contained several specific reservations by the management removing the reserved subject mat- ter from the field of collective bargaining.9 Finally, any or all of the provisions of the September 6, 1934, Plan could be terminated by the management on 30 days' written notice. 8 The record discloses no details with respect to the preparation and presentation of this Plan, which was subsequently printed by the respondent under the following caption : "At a meeting held September 6, 1934, the duly elected Employees ' Representatives met with Representatives of Phelps Dodge Corporation , Copper Queen Branch, Smelter Divi- sion, and mutually agreed upon the following Plan as a method for the settlement of any differences that may arise between the Employees and the Management of said Corpora- tion, and as a means whereby collective bargaining on matters relating to working condi- tions, hours of labor, wages , safety and other matters may be carried on by the Employees' Representatives and the Management of said Corporation." 9 Article 7, entitled "Reservations," provided : • '"1. The right of the Company to increase or decrease production at any time , or to in- crease or decrease the scale of its operations at any time, in any and all departments shall not be questioned. IT. The Management of the Copper Queen Branch, Smelter Division, operations , and the direction of the working force, including the right to hire, suspend , transfer or discharge employees for proper cause, and the right to relieve employees from duty because of lack of work or for other legitimate reasons, is vested in the Management of the Company, and, except as expressly provided herein, these rights shall not be abridged by anything contained herein." L, PHELPS DODGE CORPORATION 449 The management paid every employee representative $2.00 for each joint meeting attended. Meetings of employee representatives, as well as joint meetings of the two groups of representatives, were held on company property. Further details concerning the operation of the Plan, as established in 1933 and amplified in 1934, are not disclosed in the record. Shortly after the effective date of the Act, duly 5, 1935, the respondent announced to the employee representa- tives that the Plan was unlawful and would be discontinued.lo The Plan from its inception in 1933 was a labor 'organization in- capable of. functioning as a bona fide representative of the employees. The Plan made no provision for membership in the organization. All non-supervisory employees automatically were entitled to participate in the Plan, simply by virtue of the employment relationship. They were not free to designate representatives of their own choosing, but were restricted to a certain class of fellow employees, whose right to act as representatives could be terminated by the management. No provision was made for meetings at which employees could meet either with their fellow employees or with their representatives for the purpose .of crystallizing general employee sentiment and instructing the representatives on any issues relating to wages, hours, working con- ditions, or other matters of common employee concern. No provision was made 'for employee financial support of the organization. The Plan merely established an advisory agency supported by the man= agement for adjusting differences between the employees and the man- agement-within limits determined by the management in each case." The amplification of the Plan adopted on September 6, 1934, creat- ing an Industrial Council of representatives of the employees and the management, fixed definitely the exclusive manner in which the 10 Gilbert Hale, an employee representative at that time , testified : As I recall it the company management told us that . . we couldn't bargain with them on account of the Labor . Relations . . . I mean the Wagner Act , and they dis- solved the meetings. Floyd Biava testified on the same point : A. They said that the Representation Plan was unlawful and we could not meet with the company any more to bargain, because we was receiving $2 00 per meeting. Q. Who told you that? A. The management. Q. At a meeting? A. At a meeting. 11 As provided in the Plan adopted September 6, 1934, it was the function of the In- dustrial Council to "consider and settle all questions relating to . . . matters of mutual interest to the employees -and the Management." It could "settle " these matters, however, only when a majority of management representatives , as well as a majority of employees' representatives , agreed as to the position to be taken . Even should a position be agreed upon by both groups of representatives, no bargaining thereon appears to have been con- templated , since the ultimate action provided for is characterized as a "recommendation." In view of the use of this term , we do not construe the provision that such "recommenda- tion-shall be referred to the manager of the Company for execution" as binding the respond- ent to carry out "recommendations " made to it by the Council. 450 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD Plan,was to function in conjunction with the management.12 The respondent paid the employee representatives for time spent in Indus- trial Council meetings on Plan business, permitted Plan elections to be conducted in the plant, and supplied meeting quarters for, Plan representatives. The respondent argues that Article 1 of the Plan as established in 1933 shows- that it was formed by the employees themselves, and that there is no direct evidence in the record that the respondent played any part in its creation, We do not regard either premise as con- clusive upon chat-issue. The entire structure of the organization, more particularly the provisions for automatic employee participation, for the subdivision of the; plant into electoral divisions, for plant elections, and for a grievance procedure, coupled with the absence of airy provision.for employee -financial support of the organization,13 convinces us and -we, find that in fact -the,. Plan originated with the respondent or, at least was formulated with ,its active participation. However, irrespective of the Plan's origin, it is plain and we find that, once established, the Plan existed and functioned only through the respondent's joint participation, financial support, and sufferance. The respondent also urges that the Plan adopted on September 6, 1934, so far as the record shows, was nothing more than a bona fide contract providing machinery for collective bargaining. However, the Plan was not thereafter severable into (1) an independent labor organ- ization capable of making a bona fide contract with the management, and (2) a bona fide contract between that organization and the man- agement, because the record establishes that no such bona fide organ- ization was then in existence and there was nothing in the Plan, adopted September 6, 1934, purporting to, confer contractual - rights or impose contractual obligations upon either the employees or the management. The Industrial Council itself is plainly a labor organ- ization as expressly defined in Section 2 (5) of the Act.14 We, therefore, reject this argument of the respondent. n See Westinghouse Electric & Manufacturing Company v. National Labor Relations Board, 112 F. (2d) 657 (C. C A. 2), enf'g as mod Matter of Westinghouse Electric & Manufacturing Company and United Electrical, Radio it Machine Workers of America, Local $R 10, 18 N. L R B 300, where the Court said In 1933 the company organized the "Plan", so called, for dealing with matters which might arise between its employees and itself. It is not necessary to go into the details more than to say that the governing committees of this organization wei,e made up equally of elected representatives of- the employees, and of; "management employees" appointed by the company. Though the company does not appear to have had con- trol, at least it had such a joint share in the "Plan's" management and direction as the statute now forbids. is Both the original Plan and the 1934, amplification were printed, although the organi- zation had no ostensible means of financial support other than the respondent. 14 See Matter of Bethlehem Ship Building Corporation, Limited and Industrial Union, of, Marine and Shipbuilding Workers of Amernca, Local No. 5, et at, 11 N. L R. B 105, ent.d, in Bethlehem Shipbuilding Corporation, Ltd. et al. v. National Labor Relations Board, (C. C. A. 1, October 8, 1940). PHELPS DODGE CORPORATION 451 We do not make any findings of unfair labor practices on the basis of the respondent's conduct prior to July 5, 1935, the effective date of the Act, but we have considered and set forth such conduct since it is relevant and material in evaluating the respondent's subsequent acts.15 However, we find that from July 5, 1935, to the date of this Plan's discontinuance '16 the respondent dominated and interfered with the administration of the Plan and contributed financial and other support to it, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. The Plan from 1936 to 1938 At some time after July 5, 1935, but prior to July 1, 1936, what purported to be a new Plan, herein called the 1936 Plan, was formu- lated. The 1936 Plan was entitled "Collective Bargaining Agree- nient," and purported to be an agreement between the management at the plant and a so-called "Employees' Association." Like the Plan adopted `on September 6, 1934, the 1936 Plan contained no provisions relating to terms or conditions of employment, but merely reestablished the method of dealing between the employees and the management which had been in operation under the preceding Plan. 117 In detail, the 1936 Plan stated that its purpose was "to provide a method for the prompt settlement of any differences that may arise, and to provide a means whereby the members of the Employees' Asso- ciation may bargain collectively with the Manager." It provided that members of the Employees' Association should be represented by the "Employees' Association Representative Committee"; that joint meet- ings should be held at least monthly between that Committee and the plant manager and his represenatives; and that the manager was also to appoint a secretary to record the proceedings, including_ all- discus- sions and decisions, copies of which were to be furnished to the secretary of the Committee. The 1936 Plan further provided that, as to any matter not settled with the consent of the management's representatives;, substitute or compromise proposals could be offered or the matter submitted for final decision to arbitrators then to be selected by the two groups of repre-, sentatives. Patterned after the Plan adopted on September 6, 1934, the 1936 Plan contained the same specific reservations by the manage- ment removing the reserved subject matter from the field of collective " National Labor Relations Board v. Pennsylvania Greyhound Lines , Inc., 303 U. S 261, 268-270; National Labor Relations Board v. Pacific Greyhound Lines, Inc, 303 U S. 272, 273. 16 The precise date of such discontinuance after July 5, 1935 , is not established by the record 17 The respondent in its brief concedes that the 1936 Plan was not "dissimilar" to the one adopted on September 6, 1934. 413597-42-vol 23-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dealing."' Finally, the 1936 Plan provided that it could be terminated by the management or by the Committee on 30 days' written notice. The first meeting between employee and management representatives under the 1936 Plan occurred on July -l, 1936, in the Engineering Office at the Douglas plant, under the chairmanship of H. A. Clark, the plant manager.19 Clark opened the meeting by asking : "Who is chairman of the Employees' Committee?" 20 G. B. Hammer '21 a watchman with an employment record of approximately 20 years with- the respondent, identified himself as the chairman. In response- to Clark's request, Clark was given a list of names of 13 employees on the Committee together with designations of the divisions they represented.22 Clark stated that, in addition to himself, C. H. Cole, the superintendent, L. L. McDaniel, the general foreman, and I. B. Ward, the employment manager, would constitute the Management's Committee. The following conversation then ensued : CHAIRMAN [Clark]. Was this election held at the plant or off the job? Mr. BIAVA 2 3 It was held in the plant. [Italics supplied.] CHAIRMAN. About what per cent of the men voted? Mr. BIAVA. We figure about 73%. CHAIRMAN. All right, we will say about 73%. The election, I suppose, was by secret ballot? Mr. BIAVA. Yes, sir. There is no question about this Commit- tee's serving, the Committee is duly elected. CHAIRMAN. HOW was this Committee of Representatives formed? Mr. BIAVA. There was a general election to decide whether to accept the Plan or not, then each division nominated their men for an election to be held at a later date, the two men receiving Is See footnote 9, supra. 19 The findings in this paragraph are based upon typewritten minutes of the joint meet- ing. These minutes, prepared by the respondent and produced by it at the hearing, contain verbatim transcripts of many statements made at the meeting and bear the words "ff. A. Clark, Chairman" at the end. 20 The minutes df this meeting are captioned "Minutes of Meeting of Employees' Com- mittee and the Manager's Committee." "Employees' Committee" was the designation of the employees' representatives under the original Plan. "Employees ' Association Repre- sentative Committee" was the designation adopted in the 1936 Plan. The designations are used interchangeably in the record and herein. - 21 Hammer was a representative or member of the grievance committee under an em- ployee representation plan in operation at the Douglas plant shortly after the World War. Under that plan, elections for representatives were conducted at the plant and the man- agement paid representatives for attending meetings . The record does not disclose how long that plan was in existence or any other details with reference to it. 22 Three of the 13 employees on the Employees ' Committee were listed as representing the electoral division consisting of Mexican employees , while each of ,the 'remaining 10' committeemen represented a different electoral division . The 1936 Plan did not provide for any electoral divisions , and the 11 divisions represented were those established by the 1933 Plan. Brava, one of the employees' representatives present, had also served as such under the 1933 Plan. PHELPS DODGE CORPORATION 453 the highest number of votes ini each division being put up for election, one representative for each 100 men or fraction there- of.24 The nomination for the men in each division and their election was held by secret ballot.25 CHAIRMAN. Have you a copy of the Plan as presented? Mr. HAMMER. Yes sir. [Hands the Chairman a copy of the' Plan.] CHAIRMAN. This Plan has been referred to the Company and has been approved; the Company accepts it as the bargaining agency between the employees and the management. Now that this is established, is there anything further to say? [Italics supplied.] - Hay, an employee representative, inquired as to whom the em- ployees' representatives were to meet with. Clark replied : "Now that we have this bargaining committee established we should work through it, that is what the Committee is for, and you should work through it. I also think we should have a resolution in the minutes as a matter of record accepting the Plan." Thereupon Hammer moved that "the Plan presented by the Employees' Committee to the Management's Committee on July 1, 1936, be and is the bargaining agency between the Employees' Committee and the- management"; and the motion, after being seconded by Biava, was unanimously carried. Clark, on his own initiative, then took- up as "old business" requests previously made to him personally by representatives of cer- tain electoral divisions in existence under the 1933 Plan. To a query by Hammer whether the "Wagner Law" required the respondent to 94 In this connection, the 1933 Plan provided : Article 4=Electoral Divisions. 2. Employees' Representatives shall be apportioned among the several Electoral Divisions on the basis of one Representative for each one hundred employees , or major fraction thereof, as shown by the number of employees on the payroll of the Division ; provided,-however, that each Electoral Division shall have at least one Representative. Article 5-Nominations and Elections of Employees ' Representatives. 1. Nominations and elections of Employees ' Representatives shall be by secret ballot. S. Nominations and elections of Employees' Representatives shall be held under the direction and supervision of the Employees Committee, who shall post notices advising the employees of such elections at least two weeks prior to the date of the election. 7. In Electoral Divisions from which one Representative is to be elected, the two persons securing the highest number of votes shall be declared 'nominated. 9. The results of the nominating election and the names of the nominees shall be posted in the various Electoral Divisions. . . . 10. . . ., the election of the Representatives by secret ballot shall be held in the same manner as provided for nominations. . . . 11. . . . the candidate or candidates receiving' the highest number of votes in his or their Electoral Division shall be declared elected "The record -does not disclose any, further details as to the calling and-. holding of the elections or the results thereof. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dock employees' representatives who attended meetings with the management during their working time, Clark answered that "there was no Wagner law" and that committeemen would not lose time by attending such meetings. After, some further discussion, the meeting was adjourned on Biava's motion. Thereafter meetings between the Employees' Committee and the 'management were held at least monthly, special meetings being called occasionally. At a special meeting held August 28, 1936, to announce an approximately 5-per cent increase in hourly wage rates, effective September 1, 1936, Hammer thanked the management for it "on be- half of the Employees' Representative Committee" and stated that the wage increase came as a "pleasant surprise." 26 At a joint-meet- ing on October 7, 1936, Manager Clark inquired as to the "general feeling" among the employees and Biava replied-that he had observed nothing "wrong with the men" and that "they are feeling pretty well satisfied." Beginning with that meeting, so far as the 1936 Plan is concerned, the management started the practice of mimeographing the minutes of all meetings with the Employees' Committee and post- ing copies on plant bulletin boards. . On May 5, 1937, at a regular meeting, James Kelley, a member of the Employees'•Coinmittee, stated that the provisions of the Act were not fully understood by the employees, and asked Clark for a copy of the Act for posting on the bulletin boards. Clark replied that, if he could secure it, he' would give one- to Kelley. In the ensuing"discus- sion, Clark stated that the Act "was no'v the law"; 27 that "the Em. ployees' Association as now operating" was "not in conflict" with any provision of the Act; and that, "in view of the pleasant and siitis-_ factory relations existing in the past between the employees and the management," he hoped that "the Association" would continue." 24 Employee Representative Lane then stated that he too had considered the application of the Act to "the agreement between the Employees' Committee and the Company" and could find no conflict; 2' Under similar circumstances , the management announced 5-per cent wage increases on November 14, 1936, effective December 1,' 1936 , on January 5, 1937, effective -February 1, 1937, on February 27, 1937 , effective March 1, 1937 , and on May 1, 1937 , effective the same date. However, on May 29, 1937, the management ' called a special meeting and announced a decrease in wage rates of approximately 5 per cent , effective June 1;' 1937. Under similar circumstances , the management announced 5-per cent wage cuts on No vember 8 , 1937, effective NoN ember 16 , 1937, on December 27, 1937; effective' January 1, 1938 , and on June 24, 19 38, effective July 1, 1938 . All increases and decreases mentioned above were based upon wage rates in effect in August 1936 27 Clark had reference to the decisions of the Supreme Cou 'r't of the'United States on April 12, 1937, in National Labor Relations Board v. Jones d Laughlin` Steel Corp ; 301 U. S 1, and companion cases, upholding the constitutional validity of'the•Act. `The first meeting at which these Supreme Court decisions were referred to was the afdre -mentioned meeting of May 5 , 1937. 1 : ' ` ' ' ' . • - 28 Clark's references to a so-called Employees ' Association were intended as references to the joint meetings between ^epresentathes of the 'employees and the management: ' - PHELPS ` DODGE CORPORATION 455 The first definite activity outside the plant in connection with the Employees' Committee -was an election of employees' representatives which was conducted at the Y. M. C. A. in the middle of 1937, about a year after the Employees' Committee had started to function under the 1936 Plan. The director of the Y. M. C. A. permitted the repre- sentatives free use of a room for this and subsequent elections, and also for their own subsequent committee meetings. The respondent thereafter continued to hold meetings with the Em- ployees' Committee at least once a month, pursuant to the 1936 Plan, as had been done at least since July 1, 1936,29 and to record Minutes of such meetings and post mimeographed copies on plant bulletin boards. Manager Clark died in March 1938, and the meetings of the Employees' Committee and the management thereafter continued in pursuance of the provisions of the 1936 Plan, under the chairmanship of Superin- tendent Cole, until the 1936 Plan was replaced at a joint meeting on September 7, 1938, by a so-called "Collective Bargaining Agreement" with the Douglas Smeltermen's Association, hereinafter referred to. The respondent argues that an employees' committee of some sort, which had been elected in the plant'at some time prior to July 1, 1936, agreed to the 1936 Plan at the July 1, 1936, meeting with the manage- ment. However, the respondent does not claim that this agreement was entered into by any independent employee organization.31 More- over, George Colvin, who had been in the respondent's employ since 1927 and was a representative on the Employees' Committee from its first meeting with the management under the 1936 Plan, testified that there were no dues for any employee organization until July 1938,•' Biava, who was a representative before as well as after the discontin- uance of the original Plan in 1935, testified that he could not recall the name of the group in existence after 1935, that there were no dues at that time, and that the fashion of meeting with the management under- went no change from the method in existence under the Plan prior to July 1935, except that the management no longer paid the employee representatives $2 each per meeting; Joe Lane, who had been in the respondent's employ since about 1925 and was an employees' representa= tive under the plan both prior to its discontinuance in 1935 and upon its revival in 1936, stated at the hearing that the so-called Employees' Association had been formed in 1933, had continued under various names until 1938, and that a series of meetings between the Employees' Committee and the Management's Committee took place during this 29 The Plan, as amended on September 6, 1934 , provided for joint meetings at least once every month and for the posting of minutes of the meetings on plant bulletin boards. The respondent, however, failed to produce minutes of meetings prior to July 1, 1936. 31 An organization known as the "Employees' Benefit Association" appears to have been in existence, at least in 1937, but it is clear that this organization (lid not purport to carry on dealings with the management , and was not the one referred to as the "Em- ployees' Association " in the 1936 Plan. 456 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD '5-year period; Gilbert Hale, who had been employed at the Douglas plant since 1922 and had been an employees' representative under the Plan in 1935, testified that he knew that some form 'of representation was in effect after the respondent had dissolved the Plan in 1935 but, when questioned by the Trial Examiner as to the basis for this testi- mony, stated that he was unable to give the name of any organization whose purpose was to discuss working conditions during this period, and that he did not know any further details concerning the function- ing of any such organization; and Hammer testified that, although he was a member of the group that met with the management on and after July 1, 1936, he did not remember the name of the organization which the group was representing. Under these circumstances, it is significant, that the 1936 Plan was signed, not by someone on behalf of an employee organization of some sort, but by Hammer as chairman of an Employees' Association Committee, and that the carbon copy thereof in the record, which was furnished by the respondent, bears at the bottom the following notation : This Plan accepted by both the Employees' Committee and the Management's Committee in meeting held July 1, 1936., So stated - in the minutes. In view of these considerations, coupled with Clark's acceptance of the 1936 Plan upon being advised that it had been submitted to, and the representatives elected by, the employees as such, acting in the plant, and not as the members of any employee organization, and Clark's repeated references to the 1936 Plan itself as establishing the bargaining agency for the employees, we find that there was no inde- pendent labor organization in existence, apart from the provisions of the 1936 Plan, with which the respondent could make an agreement at the time it purported to do so on July 1, 1936.31 We find that when the employees at the Douglas plant at some time .prior to July 1, 1936, voted in the plant on the question of accepting the 1936 Plan, and when they thereafter elected fellow employees to act under the 1936 Plan as representatives of the same electoral divi- sions as they had previously been familiar with, also in the plant, and without opposition from the management, they had not been effectively freed from the respondent's domination and support of the original Plan and its interference with their rights as guaranteed in Section 7 of the Act.32 We further find that the circumstances under which 31 Biava testified that duiing 1935, some tome after July 5, "a group of men assembled themselves at the Y. M. C . A." and "formed the -new plan " However , Biava was uncer- tain as to the time of the alleged meeting andr refused to "swear to it." Under these circumstances , we do not credit such testimony. 33 We do not consider that the employees generally were rendered free by the respond- ent's announcement to their representatives, at some time after July 5, 1935, that the Plan then in existence was unlawful and would be abolished. ' , See Matter of Westronghouse Electric & Manufacturing Company and United Electrical, Radio & Machine Workers or PHELPS DODGE CORPORATION 457 collective dealing between employees' representatives and the manage- ment was resumed on July 1, 1936, and particularly Clark's statements at that meeting, show that the labor organization which resulted was nothing but the earlier Plan,33 revived by the respondent as an advisory agency for adjusting differences within limits determined by the man- agement, except for the elimination of payment to representatives for attendance at joint meetings; and that the employees could not fail to understand, in this setting, that the 1936 Plan represented the respond-' ent's desires just as the preceding Plan had done. No means of sup- port having been provided in the 1936 Plan for carrying out the activi- ties of the Employees' Committee, including the semi-annual nomina- tion and election of representatives by secret ballot, the inference is clear that whatever financing was required for the activities of the Employees' Committee continued to be supplied by the respondent.14 The respondent also contributed support to the Employees' Committee by permitting the elections for representatives to be conducted in the plant until the `middle of 1937, and by preparing copies of the joint meetings and posting them on bulletin boards in the plant devoted to the respondent's business. The respondent's persistent effort to maintain the 1936 Plan is revealed by Clark's comments at the joint meeting of May 5, 1937, that the Act "was now the law" but that the 1936 Plan was not in conflict with any provision thereof, and that he hoped the 1936 Plan would continue. It was not until some time after the Supreme Court had upheld the constitutionality of the Act that it was deemed desirable to have the activities of the Employees' Committee carried on outside the plant, and after July 1937 elections and meetings of the Em- ployees' committee took place in quarters donated by the Y. M. C. A. We are of the opinion that such minor changes failed to wipe the slate clean and free the employees from the respondent's previous domination of their efforts at self-organization for collective bargaining.35 America, Local # i70, 18 N L. R. B. 300, enf'd as mod in Westinghouse Electric & Manufacturing Company v. National Labor Relations Board, 112 F. (2d) 657 (C. C. A. 2), petition for cert. granted, November 12, 1940. 31 Lane's testimony to the effect that there was no discontinuance of the meetings be- tween the employees' representatives and the management between the time of the estab- lishment of the original Plan and the formation of the Association in 1938 and particularly between'the time of the respondent's announcement in 1935 dissolving the original Plan and the formal establishment of the 1936 Plan, affirmatively indicates that the employees regarded the Plan,, dating from the time of its establishment in 1933 to the time of its displacement by the Association, as an unbroken continuity, and we so find. Matter of Titan Metal Manufacturng Company and Federal Labor Union No. 19981, 5 N. L R B. 577, enf'd Titan Metal Manufacturing Co. v. National Labor Relations Board, 106 F. (2d) 254 (C. C A. 3), cert. den. 308 U. S. 615; Matter of Sunshine Mining Com- pany and International Union of Mine, Mill and Smelter Workers, 7 N. L. It B. 1252, enf'd, National Labor Relations Board v. Sunshine Mining Company, 110 F. (2d) 780 (C. C. A. 9), petition for cert. filed August 21, 1940. 85 National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co , 308 U. S. 241. 458 DECISIONS -O1r NATIONAL LABOR RELATiONS BOARD Under all the circumstances , we find that the 1936 Plan is nothing but a revival of the original Plan, and that the respondent dominated ' and interfered with the formation and_ administration of the 1936 Plan, and contributed financial and other support thereto , from its establishment in 1936 to its replacement at the September 7, 1938, meeting and thereby interfered with, restrained , and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of thR Act. B. Domination and support of the Association 1. Chronology of events Brava testified that in the late spring of 1938 word from an unstated source was passed in the plant "by mouth to mouth" .. . "to go down to the Y. M. C. A." . . . because the Employees' Com- mittee under the 1936 Plan ". . . wasn't any good . . . they don't want it any more," that .. . "they wanted something to comply a little, -more." Shortly thereafter Biava, Colvin, Lane, Hammer, and possibly some of the other seven representatives on the Employees' Committee,36 at one of that group's meetings held at the Y. M. C. A., decided to form a new organization. All the representatives who testified at the hearing claimed that they were unable to recall who initiated this step. Hammer, the chairman of the Employees' Com- mittee, nevertheless testified and we find that the Association was organized because it became generally known that the Employees' Committee was not legal, and that it was desired to give the employees some form of representation that would not violate the law.37 At this meeting in the spring of 1938, Hammer appointed Biava, Colvin, Lane, and himself, to draft a constitution for a new or- ganization or, as Biava testified, -for "the representation plan that is now in effect." Hammer suggested that the organization should be patterned after one in existence at the respondent's plant in Bisbee, Arizona, known as its Copper Queen Branch, Mines Division, which the four representatives visited shortly thereafter.-5 They then drafted a constitution for an organization to-be known as the Douglas Smelterrnen's Association, patterned largely after the one at the 33 Since the first meeting in 1918, on January 5, the electoral division consisting of Mexican employees had been represented by only 1 employee instead of 3, as theietofore, thus reducing the number of representatives fiour I lo 11 3' In Matter of Phelps Dodge Corporation United Verde Branch and Intei national Asso- ciation of Machinists, Local No 223, et al , 6 N L. R B 624, the Board on April 15, 1938, decided that employees' representation plans at another branch of the respondent in the State of Arizona could not be consideied as bona fide representatives of the employees for the purposes of collective bargaining, because the Plans were subject to the respond- ent's control, and therefore rejected the claims of the Plans in a representation proceeding under Section 9 (c) of the Act This decision was known to the members of the Em- ployees' Committee as well as to the respondent. 61 The record does not disclose how the expenses of this trip were met. PHELPS DODGE CORPORATION - 459' Bisbee plant, and, after being informed that the new organization was legal,39 had this constituion and application cards printed at the Brewery Gulch Gazette in Bisbee. The printing bill was subse- quently paid out of dues collected by the Association. - The so-called "Constitution and By-Laws" of the Association con- tain provisions for membership upon application and for dues of 25 cents per month.40 The governing body is the Executive Board, which has exclusive power to act as the "collective bargaining agency for all members" and is composed of at least 11 members, one being from each of the same 11 electoral divisons of the Douglas plant as were previously in existence under the Plan.41 It further provides that any member of the Executive Board whose employment is terminated automatically ceases to be a member of the Board, and that any member of the Board who is permanently transferred from his electoral division 'automatically ceases to be a member of the Board after 30 days. The members of the Executive Board, within a week after their election, elect from among themselves a president, a vice president, a secretary, and a treasurer, who are also to be the officers of the Association; and the Executive Board is thereafter to, meet regularly except for a few changes in names and the substitution - of membership dues of 25 cents a month for automatic and expense- free participation, the structure of the Association is practically indistinguishable from its predecessors. After the printed copies of the "Constitution and By-Laws" and the application cards were received from the printer in July, the representatives on the Employees' Committee solicited applications for membership in the Association. Lane admitted that he solicited employees "on the job" and "any place I could find them," and his work as pipefitter took him to every department of the plant. Biava admitted soliciting four or five employees in the plant. M. J. Arnold, who had been elected a representative on the Employees', Committee in June 1937 and had served as such ever since the regular meeting of August 4, 1937, also solicited employees wherever he found them in the plant, enrolling 100 per cent of the 12 or 14 employees in his department, although he testified that he did so only during' - his lunch period and after working hours. Hale, one of the first employees to join the Association after its formation, was solicited 80 The group consulted an attorney , who is not further identified in the record. 41 Ajthough the "Constitution and By -Laws" state that "any person employed in any smelter in the Douglas vicinity shall be eligible for membership ," we find that member- ship was intended to be limited to the employees at the Douglas plant and has been so limited in actual practice. 41 The "Constitution and By-Laws" of the Association contain restrictive provisions,- like those found in the predecessor Plans , limiting members of the Executive Board, the existing counterpart of the Employees' Committee, to Association members who are Eng- lish-speaking citizens of the United States, over 21, and employees of ,a ^ "smelter in the Douglas vicinity" for a minimum period prior to nomination. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Arnold in the room at the plant where they both worked. Colvin recruited "one or two" members in the plant. We find that the respondent, under such circumstances, knew of solicitation in the plant, during working hours, on behalf of. the Association, and, by taking no steps to prevent it, gave support to the Association. The first formal meeting of the new Association, at which minutes were taken, was held in the Y.-M. C. A. on July 27, 1938. The only. members present at this meeting were the same 11 men who had composed the Employees' Committee, who had organized the Asso- ciation, and who comprised the entire membership of the Associa- tion at that time; they appointed themselves as the Executive Board -of the Association until the next election provided for in the consti- tution, in December; and they elected' Hammer, the former chairman ,of the Employees' Committee, as president. On Lane's suggestion, Hammer then appointed Biava, Colvin, and Lane to prepare an agreement to provide for meetings between the management and representatives of the Association for the purpose of dealing with, .matters of mutual interest. The meeting also passed on at least one membership application, that of Hale. At a meeting between the Employees' Committee and the manage- ment on August 3, 1938, still pursuant to the 1936 Plan, Hammer orally stated that the Employees' Committee wished to serve notice that it desired to cancel the 1936 Plan at the end of 30 days, and that the new Association would present a new "working agreement" -to Cole within a week "for consideration at our next regular meeting." 42 About August 10, 1938, Colvin presented to Cole a proposed "Col- lective Bargaining Agreement" between the Association and the -management, which Colvin had prepared with Lane's assistance. This "Agreement," except for appropriate changes of name and a few other minor differences, is identical with the 1936 Plan establishing meetings between the. Employees' Committee and the management. It contains no provisions relating to the terms or conditions of em- ployment, but merely provides' that the "Executive Committee" of the Association and the plant superintendent and his representatives should meet at least monthly to "consider and attempt to settle all questions relating to working conditions, safety, wages, hours of labor and other matters of mutual interest"; 43 and that, as to any matter not settled with the consent of the management's representa- •'a The minutes of this meeting indicate that the management representatives did not ask Hammer any questions about the new Association , with which the management had had no prior dealings. rHowever, management officials 'stated at that time that they would look into the new organization to see if it was satisfactory. 41 The matters taken up at meetings held pursuant to this "Agreement," and particularly grievances, have not, been limited to the Association's membership. ' ' _ --PH LPS DODGE CORPORATION . 461 tives, substitute or, compromise proposals-may be offered, or the mat- ter may be submitted for final decision to arbitrators then to 'be selected by the two groups,of representatives. Finally, the "Agree- ment" provides that it may be terminated by either party on 30 days' notice. On or about the same date, a copy of the Association's_ "Constitution and By-Laws" was also given to the management. On September 7, 1938, a meeting was held between the same group of 11 employees 44 and representatives of the management. This meeting was held pursuant to the 1936 Plan; the minutes of the j`regular meeting held August 3, 1938," were unanimously approved as posted ; and several matters of old business were taken up from the August 3 meeting. However, the minutes prepared by the manage- ment over Employment Manager Ward's name are headed Minutes of Regular" Meeting Executive Board of Douglas Smeltermen's Association and Management's Committee and the 11 employees were no longer designated as the "Employees' Committee," but as the "Executive Board." Under new business, Cole stated that on August 10, 1938, Colvin had given him a copy of the "proposed New Working Agreement, mentioned at our last reg- ular meeting," and that he was ready to sign it on behalf of The respondent if it had been approved by the Association or by the Executive Board and if Hammer had the authority to sign it on behalf of the Association. Upon Hammer's assurance that the afore- said "agreement" had been approved by the Association and that he had been duly authorized to sign on the Association's behalf, and with Hammer's further assurance that the 11 employees were duly quali- fied to serve as representatives of the Association, Cole indicated his willingness to accept the "Agreement," but stated that a resolution should appear in the minutes "accepting the Bargaining Agreement." Hammer thereupon moved that the "Bargaining Agreement pre- sented by the Douglas Smeltermen's Association, and signed by their authorized Officer and by Mr. Cole for the Phelps Dodge Corporation, Copper Queen Branch, Smelter Division, be and is the Bargaining Agency between the above mentioned parties, effective as of Septem- ber 7, 1938." The motion, after being seconded by Lane, was carried unanimously. After some further matters were discussed, the meet- ing adjourned. , Two of the 11 employees , Beecroft and Kelley, were absent from this meeting. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, regular meetings were held every month, with occa- sional special meetings, pursuant to the so-called "Collective Bar- gaining Agreement" of September 7, 1938. Employment Manager Ward acted as secretary, and the respondent continued, as it had done under the 1936 Plan, to place on its bulletin boards mimeo- graphed copies of the. minutes it had prepared of such meetings. The respondent's attitude toward and treatment of the Union is in striking contrast. In May 1939 the respondent refused the Union's request for permission to use plant bulletin boards. In addition, about February 1939, shortly after the Union's organizational activi- ties among the employees at the Douglas plant had come to the atten- tion of the respondent, it posted copies of its rules, which banned, inter alia, ". . . , agitating while on duty or on Company property; and solicitation for members, in each of its departments and com- menced their stringent enforcement. Theretofore, company rules were posted only at the main entrance to the plant,and were not enforced against the Association. It was not until the spring of 1939, when the Association was entrenched in the plant, that the respondent in- structed President Meroney not to solicit during working hours. We do not consider it necessary to set forth any of the matters dis- cussed at meetings between the Executive Board of the Association and the management, or the manner in which such matters were disposed of, in view of our findings on other grounds in connection with the 8 (2) allegations of the complaint, that the respondent interfered with the formation and administration of the Association and con- tributed support thereto.45 2. Conclusions In subsection A-2, supra, we found that the respondent dominated and interfered with the formation and administration of the original Plan and contributed financial and other support to it from July 5, 1935, to the date of its discontinuance by the respondent at an un- disclosed time thereafter. In subsection A-3, supra, we found that the respondent dominated and interfered with the formation and administration of the 1936 Plan, a revival of the original Plan, and contributed financial and other support to it, from its establishment in 1936 to its replacement by the so-called "Collective Bargaining Agreement" with the Association at the September 7, 1938, meeting. 45 See National Labor Relations Board v Pennsylvania Greyhound Lines , Inc, 303 U. S. 261, where the Court , in approving the Board's order of disestablishment as to a com- pany-dominated union, said that the employer , by unfair labor practices , had "succeeded in establishing a company union so organized that it is incapable of functioning as a bargaining representative of employees," and that the company-dominated union therefore could not "be used as a means of collective bargaining contemplated by Section, 7,." 1 PHELPS DODGE CORPORATION 463 It was not until some time after the Board's afore-mentioned deci- sion of April 15, 1938,4G which was known to the members of the Employees' Committee as well as to the respondent, that it was re- alized that the 1936 Plan still violated the Act despite its minor revisions, and was not a bona fide representative of the employees. -No other motive for the organization of the Douglas Smeltermen's Association was advanced by any of the Association' s organizers ; and we find that under the respondent's domination, apart from any free expression of the wishes of the general kiody of the respondent's employees, they undertook the creation of the Association in an attempt to remove the existing infirmities of the 1936 Plan. All the 11 persons who organized and proselytized for the Association were the same persons who were the representatives on the Em- ployees' Committee; and the new organization as finally established presented no material change frgm the one previously in existence.,' Solicitation for the new organization was allowed to take place in, the plant during working hours, and the management continued to meet with the representatives of the new organization without inter- ruption, and continued to record the minutes of such meetings and to mimeograph copies thereof and post them on its bulletin boards. We are satisfied and find that the establishment of the Association by the company-dominated Employees' Committee under the 1936 Plan was not only insufficient to free the employees from the re- spondent's previous domination of and interference with their bar- gaining agency, but_on,the contrary perpetuated such domination and interference- despite a changed form .411 The respondent contends that, despite the facts just related, the record is barren of any evidence tending to prove domination or support of the Association on its part; but it conceded in its brief and at the oral argument in substance that the Association was the successor of the Employees' Committee, which we have already found that it dominated and supported. We therefore find, that this con- tention is without merit. 'e Matter of Phelps Dodge Corporation United Verde Branch and International Associa- tion of Machinists, Local No. 223, et al, 6 N. L. R. B. 624, referred to in footnote 37, supra "See International Association of Machinists , etc v. National Labor Relations Board, 110 F (2d) 29 (C (! A. D. C.), aff'g 311 U S 72; lVestinghouse Electric if Mfg Co v National Labor Relations Board, 112 I` (2d) 657 (C C A 2), pet for cert. tiled Sept. 18, 1940; National Labor Relations Board v American Mfg Co, 106 F. (2d) 61 (C. C A. 2), affd 309 U S 629;' Republic Steel Corp v National Labor Relations Board, 107 F (2d) 472 (C C A 3), cert denied 309 U S 684, but see 310 U S 65. 5, Uinon'Drawn Steel Co o National Laboi Relations Board, 109 F. (2d) 587 (C C. A. 3); National Labor Relations board v. if. Creenebauin Tanning Co, 110 F (2d) 984 (C. C. A.' 7), cert - denied, October 14, 1940; Kansas City Power if Light Co v National Labor Relations Board, 111 F. (2d) 340 (C. C A 8) , Swift if Co. v. National Labor Rela- tions Board, 106 F. ( 2d) 87 (C. C. A. 10) ;. Conttneital Oil Co. O. National Labor Relations Board, 113 F. (2d) 473 (C C A 10) 48 National Labbr Relations Board V . Newport News Shipbuilding & Dory Dock Company, 308 U. S. 241. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that the Association is the company-domi- nated successor of the Plan; that the employees at the Douglas plant were not freed from the effects of the respondent's previous domina- tion, and support of the Plan when the Association was formed thereafter; and'that the respondent dominated and interfered with the formation and administration of the Association, and contributed support to it, and thereby interfered with, restrained,, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Discrimination with respect to hire and tenure of employment 1. Strange Boyd Stralige had been employed by the respondent continuously from 1923 to May 17, 1939, when he was discharged . Since 1931 Strange had been inspector and loading boss of the anode floor under Foreman E. W. Meharg. As such, Strange's job-was to direct the work of about seven `employees in the final trimming of the, large copper plates or anodes produced at the Douglas plant and the load- ing of the anodes on railroad cars for shipment to the respondent's refinery at El Paso, Texas. Strange joined the Union `9 on April 20, 1939, and ever since that time wore a union button while at work. Meharg admitted that he first noticed Strange's button about April 20., Strange was subse- quently selected as one of three delegates to represent the Union at a meeting of three labor groups at Phoenix, Arizona, on Sunday, May, 14, Strange's day off.60 Strange attended this meeting, which was discussed on the anode floor over a period of several days both before and after May 14.61 The meeting was addressed by a State Representative who in a speech attributed Arizona's failure to secure favorable labor legislation to the presence at the State's capitol of the respondent's agents. The attitude of Meharg , who discharged Strange, toward the Union _ is apparent from an incident involving , an, employee named Keith. Keith testified that in the middle of April , 1939, as a half dozen other employees who were wearing C. I. 0. buttons for the first time on the job were going from Meharg's office into the plant to start work, Meharg said to him, "I don't know whether those boys 90 As more fully appears hereinafter, the Union began organizational activities among the employees at the Douglas plant about January 26, 1939. 60 The meeting, sponsored by the Unity League , for Better Government, was attended by delegates from the Brotherhood of Railroad Trainmen, the American Federation of Labor; and the Congress of Industrial Organizations. a' Besides Strange, the Union's delegation to, the Phoenix meeting consisted of Homer Long, one of the, complainants herein, and a third employee of the respondent whose iden- tity is undisclosed in the record. PHELPS DODGE CORPORATION 46& are doing right by Wearing those buttons or 'not." 52 According to Meharg, Keith started the conversation by saying, "I see some of the boys are wearing their buttons out there today," to which Me- harg replied, "Yes, I see that"; that Keith then said, "I don't know that they are doing the right thing in wearing them out here, do you?"; and that Meharg merely agreed with Keith. We do not credit Meharg's testimony, but in any event we find that- Meharg's statement to Keith was a plain indication of Meharg's disapproval of affiliation with the Union. The respondent contends that Meharg and Strange were never on friendly terms and that over a period of years a series of incidents occurred which gave rise to extreme hostility between them, resulting, on May 17, 1939, in Strange's discharge by Meharg. The incident which Meharg cited as directly leading to Strange's discharge oc- curred-, Meharg testified, "on a weekday around May 14." On that occasion Meharg asked Strange how much copper was in stock on the anode floor, and Strange replied that he would look it up; but Strange did not give Meharg any further information on this point prior to his discharge on May 17. Meharg also testified that the same thing had happened from 1931 on,53 and admitted that on this occasion he did not, ask Strange to look up the information right away but merely said that it would be all right for Strange to look it up and let him know later.54 The only other specific events of recent occurrence which Meharg testified were causes for Strange's discharge happened on May 16 and 17. As to these events, Meharg testified in part as follows : Q. (By the Board's attorney.) When did you decide that you were going to fire Strange? - A. On the morning of May 17. Q. At what time of the morning was that? A. Just before-9 o'clock. _ Q. What did you observe? A. I observed one of Strange's men asleep. Q. That was on the 17th? A. Yes, sir. Q. And who was that? A. Warnock. * * * It was on the 16th that I [observed Warnock asleep and] made tip my mind to discharge him. [Strange]. as Keith, although a member of the Union, was not wearing a button at this time: °S In response to a'• leading question by the respondent's attorney, however, Meharg testified that he believed the'situation was worse beginning with the middle of Match 1939, and that it had occurred three or four times over a period of 2 months since then' sa It is not possible to determine from the record precisely when the request was made, nor how soon thereafter Strange was discharged. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. It was on the 16th instead of the 17th? A. Yes, sir. Q. What time of day? A. About 9:30. Q. What did you do after you saw this man sleeping? A. Nothing.55 Q. You made up your mind right then you were going to fire Boyd [Strange] ? A. At the first opportunity. Later on the same day, May 16, General Foreman L. L. McDaniel asked Meharg how much copper had been loaded in cars for ship- ment. Meharg replied, "How do I know? Getting information from my loading boss [Strange] is hard as pulling teeth. In addi- tion, I saw one of his men asleep this morning in a box car." Mc- Daniel said nothing and walked away. On the following morning, May 17, McDaniel sent for Meharg just before 9 o'clock, told him ,that the situation was "in a. hell of a shape on the anode floor," and that he was getting "damned -tired of it," and asked Meharg to "go back down there and straighten it out and straighten it out right away." Meharg replied that in order to straighten it out he would have to replace Strange. Immediately on hearing this, McDaniel took Meharg into Superintendent Cole's office, repeated to Cole the substance of the conversation between Meharg and him- self; and McDaniel and Cole agreed that Meharg might take what- ever steps he felt were necessary. Meharg accordingly told Strange to report to his office at 3 o'clock; and when Strange did so, Meharg told him that he was discharged for failure to cooperate with Meharg over a period of years, and that his work had not been sat- isfactory from the very first day in 1931 when they started to work together.56 This Strange denied. Unwilling to accept Meharg's discharge of him, Strange returned to the plant the next day and saw McDaniel, who said that Meharg had decided to discharge Strange because Strange's failure to co- 66 Meharg admitted that company rules , printed copies of which were posted on all the bulletin boards at this time, provided for discharge without notice for sleeping on the job, and that he and not Strange had the power to discharge of discipline Warnock or any other anode-floor employee 16 At the time of Strange's discharge the rules , printed copies of which were posted on all the bulletin boards , listed certain offenses for which an employee could be discharged immediately and without further notice , and contained the statement . For other offenses not included in the above list an employee shall not be discharged without first having been notified that a repetition of the offense will make him liable to dismissal. Meharg admitted that Strange was not discharged for any of the offenses listed in the rules as grounds for discharge without notice , and that Strange had not been notified in accord- ance with the rules. PHELPS DODGE CORPORATION 467 operate had impaired the efficiency of Meharg's department. When Strange denied that he had ever failed to cooperate and' claimed that he was being discharged to "scare the men and to discourage them from joining the C. I. 0.," McDaniel replied that he was not interested in such remarks and walked away. Meharg did not hire anyone to,replace Strange during the 2 weeks between his discharge and the opening of the hearing, but merely shifted Bill Maddux, the assistant loading boss, to Strange's posi- tion and Woods to the position vacated by Maddux; and, Meharg advanced Warnock, the employee whom he had found asleep on the morning of May 16 and who, Meharg testified, had been the immediate cause of Strange's discharge, to the position vacated by Woods. Meharg testified that approximately the same amount of work was accomplished in the 2-week period following Strange's discharge by 25 per cent fewer employees than Strange had used during the 2- week period immediately preceding his discharge; but he admitted that a similar improvement might have occurred over a similar short period' of time in the past, and he also admitted that the number of employees needed on the anode floor varied from day to day. In his testimony, Meharg claimed that the discharge was for cer- tain underlying causes other than union activity.,"' We shall, there- fore, examine these asserted causes, the first of which occurred in the summer of 1936. Strange then had the power to hire employees to work on the anode floor. By the end of August, Meharg con- cluded that Strange was using to many men, however, and also that the method of trimming the anodes should be changed. 'Dis- cussion ensued over a period of several days between Meharg and Strange concerning the new method advocated by Meharg, and Strange finally went to General Foreman McDaniel and later to Plant Superintendent Cole and complained about the dispute be- tween. Meharg and himself. Cole, after sending for Meharg and learning that Strange questioned Meharg's authority to change the trimming methods used on the anode floor, sent for Strange and told him that Meharg had permission to make whatever changes Meharg deemed necessary. Meharg, accordingly, deprived Strange of all authority for about a week, early in September 1936, in order to put the desired changes into effect; and he then restored Strange to his former job. Several months later, in October or November 1936, Meharg, still feeling that Strange was using too many men, "' In its brief, the respondent contended that a "continual feud" between Mebarg and Strange had reached a point by May 17, 1939, where the department could not function with both men, and that Meharg was allowed to correct the situation by discharging Strange. At the oral argument , the respondent's attorney stated that the only reasons for Meharg's discharge of"Strange were personal reasons. - - 413597-42-vol. 28-31 468 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD deprived Strange of the power to hire men.. Although Strange conveyed directions to the men on the anode floor, he thereafter had no power to hire, discharge, or otherwise discipline any of these men, but could merely make recommendations to Meharg. Meharg testified that,.while he and Strange had simply not been on friendly terms before the events just described, which occurred in 1936, they were enemies thereafter. Various other incidents sub- sequently occurred which, according to Meharg's testimony, in- creased his personal animosity toward Strange and deepened his belief that Strange was not cooperating with him properly in achiev- ing effective operation of the anode floor. On a Sunday morning in the middle of July 1937,$ Meharg saw Robert Phillips, one of the employees on the anode floor, in town getting hot tamales when he should have been working, and complained to Strange for not making the proper deduction in reporting his time. After, returning from vacation early in August 1937, Meharg was advised by Paul Hopkins, who had temporarily taken Meharg's place as foreman, that "one of the trimmers" on the anode floor had told Hopkins to stay away, as he had no authority there. In the following year, 1938, Meharg was advised that Bill Evans, another of the employees on the anode floor, was asleep on a Sunday in the middle of April in the locker room, when. he should have been on the job, but Meharg did nothing about this incident. Me- harg was advised that Evans was again sleeping on the job on another Sunday about a month later, in the middle of May. Be- cause of a feeling that Evans and Strange thought that he had no authority over them, Meharg went to see General Foreman McDaniel about the situation. McDaniel, called Strange, Evans, and Meharg together in Meharg's office and told them that Meharg was the boss of the anode floor and that Meharg and not Strange had full authority to hire, discharge, and otherwise discipline the employees in that section of the department. Meharg again saw Evans asleep in the latter part of August 1938 but again did nothing except to mention the incident to Strange. At a conference subsequently held by- Mc- Daniel, at which the incident was discussed and explained, Mc- Daniel told Strange that the matter would be dropped. Meanwhile, some time in May 1938, Strange, as the designated spokesman for the employees under him, had complained to Me- harg about'the retention of a temporary employee, U. D. Williams, Meharg's cousin, whom Meharg had put to work on the anode floor a month before, and had, said that the, other employees were afraid that Williams would 'be favored over„*them. , Strange also spoke to, Cole about this matter. ;Meharg- testified' that Strange's 58 Sunday was Meharg's day o8. PHELPS DODGE CORPORATION 469 complaint further increased his dislike of Strange, because he felt that Strange was the real force behind the complaint and not just the representative of the other employees. Meharg also claimed that, beginning in February 1939, Strange, used an excessive number of men to perform the work on the anode floor. Strange, however, had no power to hire at this time; on the contrary, Meharg did the hiring himself on requisitions. from Strange. Meharg also testified that, when he wanted certain information from Strange about the amount of copper in stock or the number of cars loaded, he frequently found Strange evasive, but claimed that this evasiveness was apparent from 1931 on unless he "pinned" or "beat Strange down." These figures, however, were posted on company books and were available on Meharg's desk where Strange kept his records. On the other hand, Strange testified that he had always cooper- ated with Meharg in every way, and that General Foreman Mc- Daniel, in discussing certain shipping problems with him in the early part of April 1939, had told him that his work was "satisfactory," expressed a desire that Strange "continue," and requested him to tell his assistant loading boss, Bill Maddux, that the work on the anode floor was "all right" and was "going on nicely." McDaniel, although a witness at the hearing, did not deny this testimony. We therefore find that McDaniel told Strange early in April 1939 that the work of the anode floor was satisfactory, thereby clearly indicating that he, had no fault to find with Strange. At the hearing McDaniel testified that the work of the anode floor was satisfactory in 1938 and during the early part of 1939; that he did not start making any suggestions to Meharg about improving the work until the middle of March; and that he again offered some suggestions to Meharg on several subsequent occasions, but that each time Meharg replied that he- was trying to "straighten things out." However, McDaniel admitted that he did not make any definite complaint of loafing to Meharg, or order him vo do any- thing about it, until'May 16; nor, as has been. pointed out, did he deny Strange's previously described testimony showing his belief in the early part of April that the work on the anode floor was en- tirely satisfactory. Cole had also remarked about the loafing, ac- cording to Meharg, but not until a time that he placed around April 10 59 In spite of these alleged suggestions and complaints, Meharg ad- mitted that at no time had he warned Strange about being dis- charged if the causes of the complaints were not removed, although 11 Cole was ill at the time of the hearing and did not testify. 1 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he claimed to have called the remarks to Strange's attention. At one, point in the hearing Meharg insisted that the employees on the anode floor worked only half as much time as they should have done be- cause of a well-defined loafing schedule they followed since the middle of March, but testified at another point that he first noticed loafing a month earlier, somewhere in the month of February. Meharg ad- mitted, however, that he did not ask McDaniel to help straighten things out by talking to Strange, as he had done in 1938; nor did lie "get tough" with Strange, because of a fear that Strange might go. to Cole or McDaniel again, although he claimed that Strange was responsible for the loafing. Under the circumstances, we are con- vinced that the foregoing testimony of McDaniel and Meharg to the effect that Strange's work on the anode floor was unsatisfactory prior to the time when Strange joined the Union was merely an attempt to justify a discharge in retrospect, and is not worthy of credit. In this conclusion we are supported by the Trial Examiner who pre- sided at the hearing. At the hearing Meharg admitted that Strange was a good worker, but claimed that he did not work enough hours per day. When the, Board's attorney asked Meharg if Strange was conscientious in the performance of his work, Meharg first replied that he did not under- stand the meaning of the word "conscientious." When the Board's attorney repeated the question, without using any synonym for the word "conscientious," however, Meharg then replied in the negative, saying that his "orders meant nothing" to Strange. Upon being asked the date of the last order which Strange disobeyed, Meharg recalled that the order was to keep the men on the anode floor awake during working hours, but could not remember when it was given ; and he testified that he would consider that Strange had disobeyed the order if any of the men went to sleep, on the job, regardless of whether Strange knew about it. In determining how much weight should be given to Meharg's testimony that the cause of Strange's discharge on May 17, 1939, was not his union activity but rather his failure to cooperate and his unsatisfactory work, we consider as of the utmost significance the attitude with which respondent's supervisory officials and particu- larly Meharg treated Strange's conduct. We are impressed with the fact that Strange had been employed by the respondent for 16 years, the last 8 of which were spent under Foreman Meharg, and that; when Strange was suddenly discharged within less than a month after joining the Union, he had received no warning nor had he com- mitted any act which under the respondent's published rules war- ranted summary dismissal. We accord little significance to the fact that causes of dissatisfaction with Strange's work may have existed PHELPS DODGE CORPORATION 471 for many months or years, inasmuch as the respondent itself was not sufficiently concerned with these matters to have given Strange any recent warnings or reprimands but instead summarily dis- charged him, despite express provision for notice-and warning in its published rules. We are particularly impressed by the treatment accorded Warnock, whose sleeping on the 'job on May 16, was asserted by Meharg to be the immediate cause of his discharge of Strange; Warnock was not only not disciplined by Meharg, who admitted that he and not Strange had the power to do so, but upon Strange's discharge, Meharg gave Warnock the position formerly filled by employee Woods. Under the circumstances, we find that Meharg discharged Strange on May 17, 1939, because of his union membership and activity. The respondent clothed Meharg with the power and authority to discharge and is chargeable with his action, particularly since General Fore- man McDaniel and Superintendent Cole expressly approved and ratified it in the face of Strange's claim to McDaniel that Meharg's action was discriminatory. We find that by discharging Strange on May 17, 1939, the respondent discriminated in regard to hire and tenure of employment to discourage membership in the Union, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. Strange earned $5.48 a day just before his discharge, and desires reinstatement. He did not have any employment between the time of his discharge and the hearing. 2. Anderson ,and Long An examination of the respondent's practice with respect to de- creasing its force of steady workers in the reverberatory department because of the shut-down of a furnace, and with respect to increasing its force of steady workers because of the resumption of the operation of the furnace, is essential to an understanding of the cases of Ander- son and Long. The reverberatory department operates continuously, on three 8-hour shifts. In decreasing its force of steady workers in the department, the respondent determines how many employees it wishes to lay off from their steady jobs, and how many of these em- ployees it wishes to retain as rustlers.60 Employment Manager Ward then chooses those whose current steady employment in the depart- ment began most recently, regardless of which of the three shifts they worked on, reducing to rustling as many of the oldest of these workers as the respondent desires to retain and dropping the rest from the 60 A rustler is carried on the respondent's pay roll as an employee, and usually reports daily to see if there is work for him to perform-in the plant He gets paid only for work actually done, and there is no minimum amount of work guaranteed to a rustler. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay roll. This practice results in a rearrangement of the shifts worked by some of the workers in the department, and is commonly referred to in the plant as "shift bumping." In other words, if the respondent should wish to decrease its force of steady workers on a particular shift, the employees with the least seniority on that shift would have a right to be transferred to jobs on other shifts if such jobs were filled by employees with less departmental seniority; and -these latter employees, although employed on different shifts, would be the ones to lose their steady employment, being reduced to rustling or dropped from the pay roll depending on the respondent's deter- mination of the number it wished to retain as rustlers. Once an employee has lost his steady work, whether by being re- duced to rustling or by being dropped from the pay roll, the respond- ent claims, it recognizes no kind of seniority whatsoever with respect to such person ; and the respondent contends that, in its subsequent dealing with that person, it is therefore free to treat him as if it had never had any previous relations with him. However, at a meet- ing between the management and the Executive Board of the Associa- tion on March 8, 1939, a member of the Executive Board presented a complaint to Cole that a rustler in a certain department had been re- placed by another rustler with less length of service; and Cole there- upon requested McDaniel to investigate this complaint. At a meeting on April 12, 1939, Cole stated that rustlers "were entitled to prior consideration" before new men' were hired as steady workers when a furnace was started up again after a shut-down. Ward admitted at the hearing that he took all rustlers into consideration in determining which ones to drop from the pay roll; and, in discussing the question of putting back to work men who were previously dropped- from the pay roll because of decreasing production, Ward testified that he did not expect to put them back on the same job, but that he did consider their previous employment record when rehiring men because of in- creasing production. We therefore find, as the Trial Examiner found, that the respondent considers the previous employment record of rustlers in dropping them from the pay roll and that, in accepting applicants for steady work, it gives preference to rustlers and con- siders the employment record of persons previously dropped from the pay roll; and we reject the respondent's claim that it considers such persons on the same basis as persons with whom it never had any previous relation.el - 61 While the respondent claims that it does not recognize seniority of any kind except in decreasing its force of steady workers, and then only to the limited extent hereinabove set forth, the question of seniority per se is of course not controlling in determining whether the respondent has engaged in such discrimination as is prohibited in Section 8 (3) of the Act See, for example, Matter of Waumbec Mills, Inc. and United Textile Workers of America, 15 N. L. R B. 37, enf'd in N. L. R. B. v. Waumbec Mills, Inc., 114 F. (2d) 226 (C. C. A 1) PHELPS DODGE CORPORATION 473 Boy K. Anderson first went to work at the Douglas plant in October 1936, ,as a rustler, and was first given steady work in May 1937 in the reverberatory department. Homer Long first went- to work- at the plant on April 7, 1937, as a rustler, and was first given steady work on May 1, 1937, in the reverberatory department. In November 1937, Long-was reduced to rustling, thereby losing his steady work. On December 4, 1937, Anderson was dropped from the pay roll 82 Both Anderson and Long were again given steady work in the reverbera- tory department in February or March 1938; and both, together with a large number of other employees, were again dropped from the pay roll on June 18, 1938, because of the shut-down of one of the reverberatory furnaces in that department. Employment Manager Ward went to Long's house early in August 1938 and asked him to report for work again, saying that he was about to rehire men to start up the shut-down furnace. Long did so, was handed the same card he had formerly used to take to the com- pany doctor for a medical examination, and, upon passing the medical examination and having the card duly marked by the doctor, was rehired • as•'a steady worker in the same department on August 6. Anderson went to Ward's office to seek reemployment in the early days of August 1938. Ward interviewed him ahead of some men with less previous service who were already in the office, and gave him preference in sending him to the doctor for his medical examination before these other applicants. Anderson- also started steady work on August 6. On January 26, 1939, Ralph H. Rasmussen, a representative of the International Union of Mine, Mill and Smelter Workers, of which the Union in this proceeding is a branch, arrived in Douglas to confer with Long and others about organizing a local at the plant. At that time arrangements were made for an organizational meeting to be held at Long's grocery store in Pirtleville, about 2 miles northwest of Douglas, on the following day, January 27. The scheduled meeting was held on January 27, attended by about nine of the employees of the Douglas plant. The next meet- ing of any consequence was held at 11 in the morning of February 8 at the Pirtleville Pool Hall, and another meeting was held there at 7 in the evening of the same day, each attended by about 15 or 20 of the employees. These two meetings were held pursuant to mimeographed notices which had been distributed by Rasmussen on February 7 at the entrance to the plant. Open organizational meetings were thereafter held at the rate of at least three a week during February, and a charter was applied for during the last ° The significance of being dropped from the pay roll is hereinafter discussed, but may be tentatively considered as equivalent to a lay-off , where, as here, it is not due to the em ployee's fault. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week of that month. The charter was granted, and was installed at a meeting on March 2, at which time temporary officers were elected and the organization of the Union was thus completed. Anderson and Long were both active in this organizational cam- paign from the very start. Anderson went around town frequently with Rasmussen and visited him at his hotel several times. Long not only let his grocery store be used for the first meeting on Janu- ary 27, but took a very active part in calling for employees in his car to attend that and subsequent meetings. Both Anderson and Long signed membership applications at the meeting on February 8, and were active in soliciting other employees to join the Union. Long was elected financial secretary of the Union at a meeting on March 2 when the charter was installed and the first officers were elected. Employment Manager Ward admitted that he had heard about Rasmussen starting to organize the plant in January; that the active organizational campaign was' the subject of general com- ment; that he knew meetings were being held in the Pirtleville Pool Hall ; and that he had seen the handbill announcing the February 8 meetings. General Foreman McDaniel admitted knowing by about February 7 of the organizational activities on behalf of the parent union among the smelter workers in Douglas, and he also admitted that he knew of the handbills distributed on that day. Both Ward and McDaniel denied, however, that they knew of the organizational activities of Anderson and Long on 'behalf of the Union. However, in view of their admitted general knowledge of the then current union activities in which Anderson and Long were active participants, we do not credit their denials. - On February 10, 1939, shortly after Anderson and Long had first begun their union activity, a furnace was shut down in their depart- ment, and they were among some 75 other steady workers who were then reduced to rustlmg.63 Three other steady employees in the department with less seniority than Anderson and Long were not reduced to rustling on that day, and thus represent a deviation from the respondent's seniority poliey.84 Two or three days thereafter, Anderson went to the plant to see General Foreman McDaniel about his, lay-off. A fellow employee, Jobe' Bond, was also present in McDaniel's office when Anderson asked McDaniel if he, Anderson, did not have more seniority than Emery Forkum,'a fellow employee who was not reduced to rustling at this time. After saying that 63 The complaint did not allege and the evidence does not establish that this reduction to rustling was discriminatory 64 Jack Deming was last given steady work in the reverberatory department on November 1, 1938 ; John Albert Harrel on August 7, 1938; and U D Williams on November 1, 1938. Although these three employees were reduced to, rustling 2 days later than Anderson and Long, on February 12, 1938, certain events to be subsequently discussed make this devia- tion from the respondent 's seniority policy significant. PHELPS DODGE CORPORATION 475 Forkum- had the greater seniority, McDaniel was asked about the previous practice, of "bumping" men to jobs on other shifts in. the department if there were men with less seniority on those jobs. McDaniel replied that the practice of "bumping" was being elimi- nated.e6 There was no testimony as to the reason for eliminating the practice of "bumping" at this time. - As a rustler Anderson reported to the plant frequently thereafter until the end of February to see if there were any odd jobs to pick up, but was not given any work. Long reported daily from Febru- ary 10 to March 9, and was given 2 days' work first on February 15 and again on March 4. Both Anderson and Long were dropped from the pay roll on March 9, and some 75 other employees were also dropped during the month of March. However, the three junior employees referred to in the preceeding paragraph, who were not reduced to rustling until 2 days after Anderson and Long, were not dropped from the pay roll, and were subsequently advanced to steady work around April 2, when the-furnace started up again. Meanwhile, Long had gone to the plant to see Ward about a job on Saturday, March 18, telling Ward that his own shift was said to be working shorthanded as compared with the other two shifts; but Ward replied that that was entirely up to the foreman. 116 Long then asked Ward why they had taken on, as rustlers on other shifts in the department, men with less service than he had, instead of following the past practice of "bumping" older men to such shifts. Ward replied that it was the respondent's new policy not to let men "bump" to another shift. A week later, on Saturday, March 25, Long returned to ask Ward if he, had any idea when the furnace would start up again, but Ward said he did not have the least idea about it. Two days later, however, having been told by a friend that the respondent was rehiring men, Long went to see Ward again about getting a job. On his way to Ward's office, Long saw Bobby Hickman walk out with a card in his hand for the usual medical examination, indicating that Hickman had been rehired, subject only to his passing the medical examination. When Long went in and spoke to Ward, however, Ward said that he was not going to hire any more men that day, but that Long should return the follow- ing Friday. Long nevertheless returned on the following day, which was Tuesday, and, after waiting outside Ward's office for a while and seeing Ward pick out some other men, came to the conclusion °' At a conference in Cole's office around April 14 , at which Frank Mouritsen , the Board's representative, Rasmussen , Cole, ward, and later McDaniel were present , for the purpose of discussing the Union's charges , McDaniel admitted having made this statement to Anderson and Bond 68 Of the employees on the shift on which Anderson and Long worked , about 90 percent were members of the Union, while of the same number of employees on the other two shifts only about 40 percent and 10 percent respectively belonged to the Union. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Ward did not intend to employ him. Long therefore went into Ward's office and again asked him for a job; but Ward offered his regrets and stated that he could do nothing. Long then asked, the reason, whether his work had ever been unsatisfactory or if Ward had anything against him. Ward admitted that he had noth- ing against Long and that his work had been very satisfactory., • About the end of March, Anderson also went to Ward's office in the plant to inquire about a job. After seeing Ward pick some men out of the group of applicants then present and give them their cards for • the medical examination, which meant that they were hired, Anderson went into the inner office, but was told by Ward that be had no job for Anderson. Anderson returned the next day and asked Ward whether he intended to hire more employees, but Ward replied that he did not know. Anderson then mentioned the fact that Ward had hired men with less service, and asked .whether Ward had any- thing against him. Ward answered the question in the negative and ignored Anderson's comment. Anderson and Long both went to see Ward about a job again the next day, and were again told that no work was available for them. Anderson then stated that Ward had hired one or two men who had never before been employed by the respondent, and Ward admitted having done so in one case, but claimed that there was a special reason for it, which, so far as appears, he did not disclose. Anderson and Long then went to see Plant Superintendent Cole. When Anderson complained that Ward was hiring persons with less seniority, Cole told them that the only reason they had not been rehired was because the number of applicants exceeded the number of jobs available. Anderson and Long together returned to Ward's office a day or two later, making a total of four visits during that week for each of them; and, seeing Ward just outside his office, again asked him for jobs, saying that they thought Ward was making a mistake in not rehiring them. Ward replied : "I do the hiring and I am responsible for the men I hire." At one.of the visits during that week, Ward told Anderson and Long that Rasmussen, had spoken to him on the telephone and com- plained that they (Anderson and Long) were being discriminated against because of their union activity ; but Ward denied any such discrimination.67 Anderson and Long made one more trip to the smelter together to see Ward, about the middle of the following week, and again asked him for jobs,•but Ward again replied that he did not have anything for them. Long then asked Ward if he thought the respondent's treatment of them was fair, but Ward did not answer. While the chronology of events during this period cannot be pre- cisely determined from the testimony, Ward admitted that Anderson 67 This telephone call from Rasmussen to ward took place on Saturday , April 1. PHELPS DODGE 'CORPORATION 477 and Long had repeatedly applied for work during the period that he was hiring men and immediately thereafter, and placed this hiring period as about from March 28 to April 4; and he did not deny any of the testimony of Anderson and Long, on the basis of which we have made the foregoing findings of fact. In determining whether Ward's rejection of the applications of Anderson and Long was due to their union activity, two incidents involving Ward at about this same period of time are significant. On March 30 Pedro O. Martinez, a member of the Union, went to Ward's office after the usual medical examination and was told by Ward that the company doctor had noted on the card that Martinez was rejected because of silicosis. Wishing to verify the doctor's opinion in order to be sure that there was no mistake, Martinez borrowed the card from Ward, and took it to the doctor again. After seeing the doctor, who adhered to the opinion stated on the card, Martinez took the card home. Shortly thereafter he had an examination made by a private doctor, who stated that he did not believe that Martinez had silicosis. On learning this fact, Rasmussen obtained the card from Martinez, and thereafter delivered it to the Board's Regional Office, which was then investigating the Union's charge of discrimination. Around the middle of April, when Martinez was in Ward's office, Ward asked for the card, saying, that it belonged in the office. Mar- tinez then told Ward that the card was in the hands of the Regional Office; whereupon Ward replied that if Martinez had returned the card and then waited a few days, he might have passed a second exam, ination and been given a job, but that what Martiniz did with the card put him in a "very hard spot" with the respondent, and that the Union was only interested in getting dues from him. As for the second incident, B. H. Keith, a member of the Union, went into Ward's office shortly after the employees belonging to the Union started to wear buttons on the job about the middle of April, 1939, to get a certain report form. Seeing Keith's button, Ward asked what it was and Keith replied, "We call them sunflowers around here." 68 According to Keith's testimony, Ward then looked closely at the button, felt it, read it, and said : "That will be awful nice if it doesn't turn out to. be poison ivy." At the hearing, Ward admitted having a conversation in his office with- Keith about the report form, and asking to see Keith's button, but testified that, after Keith's statement that the employees called the buttons sun- flowers, he said, "I hate those worse than poison ivy." Ward ,ex- plained this last statement as meaning that, having been born and reared on a farm in Kansas, he had no use for sunflowers. However, I 18 The buttons bore black lettering on an orange-yellow background. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conversation preceding Ward's statement, while it had concerned both Keith's request for the report form and the union button, had included no references of any kind which would render plausible Ward's explanation that his "poison ivy" statement referred, not to the actual button, but to imaginary, sunflowers. We therefore reject Ward's testimony, and find, as the Trial Examiner found, that the conversation occurred substantially as testified to by Keith. Long testified that when the furnace which was shut down on February 10 started up again in the first part of April, exactly the same number of men would be needed to operate it as were laid off when it shut down, and he based this testimony on the understanding and experience he had acquired in working around the furnace during the preceding 2 years. In the absence of any contrary ex- planation by the respondent, we find that the respondent's personnel requirements in this respect were substantially in accordance with Long's testimony.6° _ The only reason offered by any of the respondent's officials for not rehiring Anderson and Long, when they made repeated applica- tions for work - during the period that men were being rehired around April 2, is that the number of jobs available was exceeded by the number of applicants. At a conference held in Cole's office about April 14 to discuss the Union's charges in this case, both Ward, and Cole admitted that they had nothing against Long, that he was an "excellent workman" with a "very good record," and that there had never been any complaints regarding- him; while with respect to Anderson, Ward merely said that he preferred to hire men who did not spend time in pool halls,°° but he did not say that °° At the hearing counsel for the Board and the respondent entered into a stipulation with respect to the total number of employees on the pay roll of the Douglas plant at the end of each of the first 4 months of' 1939 . The stipulation, reflects the following data : January-------------------------------------------------------- 902 February-------------------------------------------------------- 876 March---------------------------------------------------------- 800 April----------------------------------------------------------- 888 In addition to the above figures, the record also shows that there was a furnace shut-down in December 1938 and McDaniel testified that a total of 171 employees were dropped from the pay roll during the first 3 months of 1939 as the result of the December 1938 and the February 1939 furnace shut-downs Seventy-six employees were dropped from the pay roll as the result of the February shut-down and 88 persons were hired during April 1939 The,respoudent 's stated seniority policies in effecting a reduction of its staff was to lay off first those persons with the least seniority . We have found above, despite the respond- ent's assertion to the contrary, that in practice it considered previous employment history in increasing its force . Here, the 76 persons dropped when the furnace shut down in Feb- ruary 1939 , in the absence of other controlling reasons which are not shown , would nor- mally have been the first group reinstated when the furnace was started up in April 1939. Since 88 persons were hired in April 1939, on the basis of the respondent's policy, at least 12 of such persons-that is the difference between 88 and 76-were new employees or per- sons dropped from the pay roll who had less seniority than Anderson and Long, and we so find 70 As we noted above, the Union held two meetings at the Pirtleville 1('ool Hall on Febru- ary 8, 1939 ; and at the hearing ward admitted having seen handbills in January or February 1939, advertising these meetings at the Pool Hall. , PHELPS DODGE CORPORATION 479 Anderson's work was unsatisfactory in any respect.71 When asked whether Anderson and Long would be reinstated, Cole stated that the respondent felt no obligation to rehire either of the two men. The respondent did not at any time explain why Anderson and Long were rejected in March and April for the jobs which they had satisfactorily filled, prior to the February shut-down and for which they had made repeated and timely applications.72 On the other hand, it is clear from the record that the three em- ployees hereinbefore mentioned, Deming, Harrel, and Williams, although on February 10 they had been employed as steady workers in the department for a shorter period of time than Anderson and Long, and thus had less seniority in the sense that the, respondent admitted recognizing, were not reduced to rustling along with An- derson and Long, nor were they thereafter dropped from the pay roll prior to being rehired as steady workers on April 2.7' In ad- dition, Ward admitted that many other employees with less service in the department were ,given steady jobs around April 2; 74 but he. claimed in this connection that, because no seniority was recognized, he did not consider the previous service of an applicant at these times. However, Ward at no time disclosed his basis for selecting applicants with less service than Anderson and Long while rejecting these two applicants, and We are therefore unable to credit his testimony that in increasing the pay roll he did not consider- an applicant's pre- vious record. The respondent contends that there is no "direct evidence" to show that Anderson and Long failed to get jobs with the respondent in April 1939 because of their union affiliation, and that there is no evidence of discrimination because the record does not reveal the union affiliation of the men whose names appear in the record, as allegedly receiving more favorable treatment than Anderson and Long during February, March, and April 1939. We do not agree with the respondent's assumption that its alleged discrimination against Anderson and Long is thereby refuted. -We are impressed with the facts that Anderson and Long were known by the respond- ent to be good workmen and that, after a lay-off in June 1938 be- cause a furnace was shut down, their applications to be rehired were accepted when the furnace started up again in August 1938; that 71 Anderson testified without contradiction that his work and his conduct at the plant had never been criticized , and we so find. 71 We do not consider the respondent's statements that there were not enough jobs for all as an explanation of why, after Anderson and Long ' first made application , it continued to select others for employment but rejected Anderson and Long 73 The evidence does not establish and we do not find that the respondent discriminated against Anderson or Long in dropping them from the pay roll 74 At least eight such employees were named : Mortenson , Goodknight, Benham, Moss, Shropshire, Rodman, Martin , and Chapman 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they thereafter became active in forming and assisting, the Union; that a furnace was again shut down in February 1939, and Anderson and Long were again laid off .due to this ,shut-down; and that their timely applications to bei rehired at the start-up were then rejected for reasons which the • respondent did not care to reveal.76 In the face of uncontradicted evidence that the respondent would require as many employees,after the start-up as it laid off because of the'shut- down, and in view of the fact that the respondent was shown to have preferred certain other men with less service than Anderson and Long,76 we think it is incumbent on the respondent to disclose its basis for the different treatment accorded to Anderson and Long before and after they became active on behalf of the Union, if it wishes to avoid the inescapable inference-that such treatment was motivated by a desire to discourage membership in the Union .77 This the respondent has not done, but has been content to rest upon ,the alleged insufficiency of the case made out against it. Under the circumstances, although we are not satisfied that the respondent terminated the employment of Anderson and Long on March 9, 1939, because they had joined and assisted the Union and had otherwise engaged in concerted activities, as alleged in the con-. plaint, we agree, with the Trial Examiner and find that the respond- ent thereafter, and particularly in the latter part of March and the early part of April 1939, refused to reinstate Anderson and Long because of their activity on behalf of the Union. We find that the respondent, by so doing, discriminated in regard to the hire and tenure of employment of Anderson and Long to discourage member- ship in the Union, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. During the last of March, Anderson secured a temporary job with a steam shovel gang on the Southern Pacific Railroad, at a daily wage of $3.92, and was still employed on this job at the time of the hearing. Long had not obtained any employment during the period from March 9 to the hearing. Both'had earned $4.84 a day at the Douglas plant just before being reduced to rustling on February 10, and both desire reinstatement. 75 See footnote 72, supra. 76 Three of these men , Deming, Harrel , and Williams, had been favored over Andes son and Long, even on the basis of the seniority policy admitted by the respondent. 77 See Montgomery Ward it Co. v. N . L. R. B , 107 F (2d) 555 (C.. C. A. 7), mod'g and enf'g Matter of Montgomery Ward it Company and Reuben Litzenberger, et at, 9 N L. R B. 538, where the Court said : Clearly, the evidence adduced to support the complaint gives rise to an inference that is sufficient to support an order based on Section 8 (3) of the Act . •. . This inference of discriminatory discharge leaves it up to the employer to give an adequate "explanation of the discharge ," even though the burden of proof remains on the Board. PHELPS DODGE CORPORATION 3. Pedro O. Martinez 481 Pedro 0. Martinez was first employed by the respondent at the Douglas plant on September 20, 1937, for a- period of 40 days. He returned to work on October 23, 1938, with the labor gang, and after 15 days was transferred to the reverberatory department. On De- cember 22, 1938, he was transferred to rustling, due to the shut-down of a furnace in the department. On February 12, 1939, he ' joined the Union, but did not wear a union button in the plant. On March 1, 1939, he was dropped from the pay roll. - Martinez returned to the plant on March 29, 1939, to see about getting a job. Ward accepted him and gave him the usual card for a medical examination, telling him to take the examination that afternoon and to return the following day to report for work. That afternoon Martinez went to the respondent's doctor, Nicolo V. Alessi, who gave him a physical examination and had X-ray pictures taken of his chest.78 Dr. Alessi found what he considered to be indications of primary silicosis, on the X-ray plates of Martinez and, being of the opinion that Martinez was a bad risk under the circumstances, marked on his card that he should be rejected for employment. When Martinez returned to the plant the next day to report for work, Ward told him that he had not passed the physical examina- tion and that Ward could therefore do nothing for him. Martinez at once went back to see Dr. Alessi to find out if some mistake had been made, since he felt perfectly well. Dr. Alessi asked Martinez to get the medical examination card from Ward's files, so that he could check the X-ray plates. Martinez went to Ward's office, se- cured the card, returned to Dr. Alessi, and gave it to him. After reexamining the plates, Dr. Alessi told Martinez that he had "a little spot" in his lungs and that nothing could be done to assist Martinez in getting a job. ' Martinez then went to another doctor, W. L. Minear, on April 7, and underwent a new physical examination and had new X-ray pictures taken of his chest. As a result, Dr. Minear concluded that a diagnosis of silicosis was not warranted without further tests. Martinez again went to see Ward about April 10 to report Dr.' Minear's opinion, and, upon being asked to return the card, promised to do so the following day. After having ascertained that Rasmus- sen, to whom he had given the card, had delivered it to the Regional 78 After leaving Ward and before applying for the medical examination , Martinez met Garcia, a union organizer , opposite the hospital where Dr. Alessi maintained-professional quarters, and conversed with Garcia for about 5 minutes . There is,no ' evidence, though, that they were noticed by the respondent Again that evening, Martinez and Garcia. met at the Arizona Bar which was also visited , during their stay there, by the respondent's chief timekeeper, Wright. Martinez conceded at the hearing, however, that Wright did not know Garcia. 482 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD Office, Martinez visited Ward's office again the next day, and ad- mitted that the card was in the possession of the Regional Office and therefore, could not be returned; whereupon the conversation hereinbefore set forth in subsection C-2, supra, took place regarding the card, and Ward repeated to Martinez that nothing could be done to provide him with a job. Dr._ Minear admitted at the hearing that the X-ray pictures made at his direction were taken under a much weaker X-ray machine than had been used for the plates considered by Dr. Alessi, and were not a satisfactory basisis, for concluding that Martinez did not have silicosis ; and he also admitted that he did not feel himself qualified as an expert to dispute Dr. Alessi's conclusion, on' the basis of the original plates, that Martinez - should be rejected for employment because of silicosis. Upon the basis of the facts hereinabove reviewed, we find that when Martinez applied for reinstatement on March 30 the respond- ent refused to reinstate him because of Dr. Alessi's adverse report on Martinez's health and that such refusal was not discriminatory within the meaning of Section 8 (3) of the Act. - However, the re- spondent's decision not to reinstate "Martinez at that time was not definitive and conclusive upon his chances for 'future employment as is shown by Ward's statement to him when he reapplied on April 11 that "if Martinez had returned the card and then waited a few days, he might have passed a second examination and been given a job." 79 In the same statement Ward. plainly said that Martinez's opportunity for reemployment was foreclosed not because of his phys- ical condition but because what Martinez did with -the card put him "in a very hard spot .... hard trouble . . . with the company,"' adding that the " . Union is just trying to get a dollar and a half out of your pocket." We find that on,April 11, 1939, the respondent denied Martinez consideration for reinstatement because of his union membership and activities in connection with his charges filed with the Board and by so doing discriminated in regard to the hire and tenure, of employment of Martinez to discourage membership in the Union, and thereby interfered with, restrained, and coerced its en17 ployees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of his separation from the respondent's pay roll, March 1, 1939, Martinez was earning $3 a day. He had not obtained other employment between March 1 and the date of the hearing. "Ward's statements indicate that the_ respondent had work adallable for Martinez 'on April .11. PHELPS DODGE CORPORATION 483 4. Smith, Simmons, and Mason Ed. E. Smith was first employed by the respondent at its Douglas plant, in November 1935, and Joseph Carl Simmons in October 1936, as rustlers in the reverberatory department under Foreman John Sunden. In November 1936 they were both, given steady work in that department, where they continued , with minor interruptions, until their discharge by Sunden on May 17, 1939. Both Simmons and Smith joined the Union in February 1939, and started to wear union buttons on the job about the middle of April. Smith and Sim- mons contended that they were discharged for union activity. It appears that on May 7 , 1939, -the car on which Simmons was sup- posed to be working became stuck and would not unload at the furnace. Sunden was unable to • find Simmons to help unload the stuck car because Simmons had wandered off to another part of the plant. Sunden, upon seeing Simmons later, reprimanded him for this incident and threatened to "get someone else." On the after- noon of May 16 General Foreman McDaniel, after having complained to Sunden several times since the first of April about the reverbera- tory department, decided to rectify what he considered to be an im- proper state of affairs there. Accordingly, on the next morning, May 17, at 11 o'clock, McDaniel called Sunden into his .office and told him that - his department was still -unsatisfactory, and that McDaniel did not intend to "put up with any more monkey business" and wanted it understood that he, Sunden , was "on the spot" and was to "clear this situation up and do ,it now." Sunden had just found Simmons at the No. 8 furnace, although he should have been unload- ing his car at the No. 7 furnace, and had sent him back to his car. Although Sunden had witnessed no recent incident involving Smith, Sunden felt that in his department neither Simmons nor Smith was a satisfactory worker unless Sunden devoted an undue amount of his time to supervising them. Sunden therefore replied to McDaniel that lie thought he could "straighten things out" by discharging Simmons and Smith. McDaniel then took Sunden into Cole's office and told Cole that Sunden had two employees whom he had to dis- charge in. order to get his shift "straightened out," and Cole approved. Later that day, at about 2:35 in the afternoon, Sunden called Sim- mons to his office and told.him that he was discharged for frequent violation of instructions . Shortly after quitting time that afternoon, Sunden met Simmons and Smith at the plant gate, notified Smith that he was discharged and, in reply to Smith's- request for an explanation ," assigned Smith's failure to cooperate as the reason for the action., Simmons and Smith then went to see McDaniel about their discharge, but McDaniel said he could not do anything for them. 413597-42-vol. 23-32 484 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD Sunden testified that both men, upon being advanced to steady work in 1936, began to violate certain instructions, and that their work became unsatisfactory. One instruction involved the number of em- ployees who were to remain on the cars of calcine as they left the scale house. There were three men on eacli car as it left the roasters with a load of calcine and proceeded to the scale house to be weighed. At the scale house only one man was supposed to drop off the car to attend to the weighing, and the other two men were expected to stay on the car, as it proceeded to the reverberatory furnace, in order to, unload it. Another instruction was that before loading the very fine copper dust from the cottrell plant into a car, the bottom of the car should first be lined with a layer of calcine to prevent the fine copper dust from leaking out. Sunden testified that both men disobeyed these rules many times over a period of 2 years, and that he spoke to them many times about such violations. According to Sunden, about January 1938 he threatened Smith with discharge if he per- sisted in leaving the car, and shortly before April 1, 1939, Sunden told Smith that he would be sent "out the gate" for the next repetition of the same offense. Simmons and Smith admitted that they occasionally violated some of Sunden's rules, but claimed that they did so no more frequently than the other employees in Sunden's department; and that except for the single incident involving. Simmons on May 7, Sunden had made no criticism of their work nor given any recent warning about their being discharged. For reasons hereinafter set forth, we find it unnecessary to resolve this conflict of testimony. Sunden also called on Simmons occasionally to skim a furnace, although that was not Simmons' regular work: In November 1938 Sunden instructed Simmons with respect to skimming a certain fur- nace which had been allowed to get too full; but in skimming the furnace the work got out of Simmon's control, and in turning the task over to more experienced skimmers, a bad "runaway" resulted. Although it report of the accident attributed the "runaway" to faulty management supervision, after its occurrence McDaniel warned Simmons to be more careful thereafter. Sunden's shift at the time of the discharge had about 40 employees, almost all of whom were members of the Union from its inception. The record shows merely that Simmons and Smith had joined the Union in February and had worn union buttons since the middle of April, as did many of their fellow employees.80 The record does not reveal any fact which distinguishes Simmons or Smith, so far as their 60 Although we find hereinafter that about April 1, 1939, Sunden warned Smith and Sim- mons and two other employees , Carol Hall and Buck Norris , that they risked , discharge if higher company officials found them , as Sunden did, discussing the subject of labor organi- zations in the plant , so far as appears , the respondent did not discharge Hall or Norris or otherwise affect their employment status. PHELPS DODGE CORPOPATION 485 union activity is concerned, from some 35 fellow employees on the same shift who were also members of the Union. We are satisfied and-find, in accord with the finding of the Trial Examiner, that under the circumstances Simmons and Smith were not discharged to dis- courage membership ,in'the Union. Jesus Mason was not available as a witness at the time of the hear- ^ng, having obtained other work, and no evidence was introduced with respect to the respondent's alleged discrimination against him. At the close of the hearing, the Trial Examiner granted the respondent's motion to dismiss the complaint as to Mason. We shall dismiss the complaint in so far as it alleges that the respondent discriminated against Mason,-within the meaning of Section 8 (3) of the Act. D. Interference, restraint, and coercion Besides the matters set forth above, there is additional evidence that the respondent opposed the Union and impeded the employees in their efforts at self-organization. Prior to April 1, 1939, Jose Estrada had been employed as a helper in the boiler room at the Douglas plant. About the middle of April he was reemployed in the boiler room following a lay-off and a transfer to another department. When he returned to work in April, Boiler-Room Foreman Howard Epley, according to Estrada's testimony, told him : I 'used to be a good man the last time I worked for him and he wanted me to keep that up and we would get along fine and that he didn't want me to be raising a red flag around the rest of the boys.... [Italics supplied.] and when Estrada asked what was meant by the injunctional lan- guage, Epley continued : I have heard you have been doing some house-to-house canvassing [for the C. I. 0.]. I don't want you to do that. Estrada-further testified that when he insisted upon complete freedom in utilizing his own time, Epley added : that was allright with him, as long as I didn't do it ... up at the plant there and informed Estrada that similar orders had been given to other employees. At the hearing Epley gave a somewhat different version. He testified that he had overheard a conversation among his subordi- nates to the effect that Estrada had become a labor organizer;'that when Estrada reported for work, on. or about April 4, Epley called Estrada aside, told him what the employees had said, and warned Estrada that company rules prohibited organizing or agitating on 486 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD company time, and that he intended to enforce the rules81 Epley admitted, however, that he had questioned Estrada as to "what degree he was active" in the Union and that Estrada had stated that he had confined his activity to furnishing names and addresses of employees to union organizers. Although Epley denied mentioning the "red ,flag," he admitted telling Estrada that he had been a good worker and warning him against agitating. Under these circumstances, we find that Estrada had not engaged in,union activity in the plant, that Epley questioned Estrada as to the nature and -extent of his participa- tion in the Union, and that the conversation between" them otherwise occurred substantially as related above by Estrada. Ed. E. Smith and Joseph Carl Simmons testified that about April 1, 1939, their foreman, John Sunden, interrupted a conversation con- cerning union matters engaged in between Smith, Simmons, and two other employees, Hall and Norris, during a lull in their work with the warning that they "be careful about talking about unions ... if Cole or McDaniel hear you talk union, you would be fired." Hall and Norris did not testify. We do not credit Sunden's denial of the occur- rences of this incident and find that Sunden made the statements above attributed to him by Smith and Simmons. By these and by the statements made by Meharg to Keith as set forth above in subsection C-1, supra, and by the statements made by Ward to Martinez and Keith as set forth above in subsection C-2, supra, we find that the respondent- interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 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 respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to dead 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 prac- tice within the meaning "of Section 8 (1), (2), and (3) of the Act, 81 Company rules, posted in the plant , provided for discharge without notice for engaging in the following offenses,: A. Insubordination, agitating, fighting, attempting bodily injury , or 'the use of abusive language toward fellow employees while on duty or on company property. J. Soliciting members for any organization , or soliciting funds for any purpose whatsoever during working hours. I PHELPS DODGE CORPORATION 487 we shall order it to cease and desist therefrom. We shall also order it to take certain affirmative action to effectuate the policies of the Act. Because the continued existence and recognition of the Association as a bargaining representative would be a continuing obstacle to \the exercise of the rights of the employees as guaranteed in Section 7 of, the Act, we shall order the respondent to withdraw all recognition from and completely disestablish the Association as the bargaining repre- sentative-of any of its employees, and to cease giving effect to any contracts with the Association .112 With respect to Strange, Anderson, and Long, we shall order the respondent to offer each of them immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make each of them whole for any loss of pay suffered as a result of the respondent's dis- crimination, by paying to Strange a sum of money equal to the amount he would normally have earned as wages from May 17, 1939, the date of the discrimination against him, to the date of the offer of reinstate- ment, and by paying to Anderson and to Long a sum of money equal to the amount each would normally have earned as wages from April 2, 1939, the effective date of the discrimination against them, to the date of the offer of reinstatement, less the net earnings of each during such period.83 We have found that the respondent refused to reinstate Pedro 0. Martinez, in part, because of his union activity. Normally we would require the respondent to reinstate him with back pay in manner and extent as provided above in the cases of Strange, Anderson, and Long. Since the respondent claimed at the hearing that it rejected Martinez for employment solely because he had silicosis and in view of the, fact that the record does not satisfy us as to his true condition, we will not require the respondent to reinstate Martinez until he passes a physical examination conducted by an impartial and licensed doctor and presents to the respondent, the doctor's certificate of his fitness for employment. Such doctor shall be selected by agreement of the respondent and the Union and his fee and expenses shall be borne equally between them. If they are unable to agree upon a doctor the Regional Director for the Twenty-first Region shall appoint a doctor 82 N. L R. B. v. Pennsylvania Greyhound Lines, Inc., et al., 303 U S. 261; Nattional Licor ace Co v. N L R. B , 309 U. S. 350 "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 else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of.his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters, and Joiners of-Amer- ica, 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 shall be considered as earnings See RepiAto Steel Co)poratson v. N. L. R. B , decided by United States Supreme Court, November 12, 1940. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for such purpose . In the interim we will not require the respondent to pay Martinez back pay. In the event that Martinez complies with such conditions and the respondent refuses to reinstate him, we will require the respondent to pay Martinez back pay from the date of such refusal to the time of offer of reinstatement. - Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, the Board makes the following : CONc usIONS OF LAW 1. Employees' Representation Plan was from July 5, 1935, to the time of its replacement by Douglas Smeltermen 's Association, and Douglas Smeltermen's Association and Southern Arizona Smelter- men's Union No. 470, International Union of Mine, Mill & Smelter Workers are, labor organizations , within the meaning of Section 2 (5) of the Act. 2. By dominating and- interfering with the administration of and contributing financial and other support to Employees ' Representa- tion Plan from July 5, 1935, to the time of its replacement by Douglas Smeltermen's Association , and by dominating and interfering with the formation and administration of and contributing support to Douglas Smeltermen's Association , the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Boyd Strange, Roy K. Anderson, Homer Long, and Pedro 0. Martinez, to discourage membership in Southern Arizona Smelter- men's Union No. 470, International Union of Mine , Mill & Smelter Workers, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 ( 3) of the Act. 4. By interfering with, restraining, and coercing 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not engaged in unfair labor practices , within the' meaning of Section 8 (1) and (3) of the Act, with respect to Joseph Carl Simmons and Ed E. Smith. ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations PHELPS DODGE CORPORATION 489 Board hereby orders that the respondent, Phelps Dodge Corporation, and its ofriceis, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the formation or administra- tion of, or contributing financial or other support to, Employees' Rep- resentation Plan, Douglas Smeltermen's Association, or any other labor organization of its employees ; (b) Giving effect to the "Collective Bargaining Agreement" of Sep- tember 7, 1938, or, to any other contract made with Douglas Smelter- men's Association, or to any contract made with Employees' Represen- tation Plan ; (c) Discouraging membership in Southern Arizona Smeltermen's Union No. 470, International Union of Mine, Mill & Smelter Workers, or any other labor organization of its employees, by discrimination in regard to' hire or tenure of employment or any term or condition of employment ; (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from, and completely disestablish, Douglas Smeltermen's Association as the representative of any of its employees for the purpose of dealing with the respondent concern- ing grievances, labor disputes, wages, rates of pay, hours of em- ployment, or other conditions of work; (b) Offer to Boyd Strange, Roy K. Anderson, and Homer Long, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and 'privileges; (c) Make whole Boyd Strange, Roy K. Anderson, and Homer Long, for any loss of pay they have suffered as a result of the respondent's discrimination, by paying to each of them a sum of money equal to that which he would normally have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings during such period; (d) Offer to Pedro O. Martinez immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, in the event that Martinez presents a certificate of fitness for employment in the man- ner provided in the-section entitled "Remedy"; 490 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD (e) Make whole Pedro O. Martinez for 4ny loss of pay he may suffer as the result of the respondent's discrimination, by paying to him a sum of money equal to that which he would normally have earned as wages from the date of the respondent's refusal to re- instate him as provided in the section entitled "Remedy" to the date of the offer of reinstatement; ,(f) Post immediately in conspicuous places at its plant in Douglas, Arizona, known as its Copper Queen Branch, Smelter Division, 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 respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c ), and (d ) of this Order ; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d),, and (e) of this Order; and (3 ) that the respondent's employees are free to become or remain members of Southern Arizona Smeltermen's Union No . 470, Inter- national Union of Mine, Mill & Smelter Workers, and the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization ; (g) Notify the Regional Director for the Twenty-first Region in writing within ten (10 ) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has, engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with respect to Jesus Mason, Joseph Carl Simmons, and Ed, E. Smith. CHAIRMAN HARRY A. MILLis took no part in the consideration of the above Decision and Order.