Veta Mines, Inc.

In the Matter Of VETA MINES, INCORPORATED and INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS Case No. C-1904.-Decided October 20, 1941 Jurisdiction : mining industry. Unfair Labor Practices Discrinavnation: refusal to employ two men because of record of union member- ship 'and activity ; charges of, dismissed as to two others. Remedial Orders : employer ordered to offer employment with back pay to a per- son who desires reinstatement despite the fact that he obtained other regular and substantially equivalent employment elsewhere. Where a person who was unlawfully refused employment subsequently became physically incapacitated, employer ordered to offer employment or give preferred status at any position for which he is qualified upon presen- tation within a specified time of a certification of capacity to work signed by a physician mutually agreed upon by employer and union or by Regional Director if agreement otherwise impossible; back pay to run only to date he became incapacitated and from time certification is presented to time employed or given preferred status. Propriety of present Board's Order, which orders employer to offer em- ployment with back pay to certain individuals, held not affected by a Board Order arising in another proceeding which orders another employer to offer reinstatement and back pay to the same individuals ; however, such persons will not be able to work for both employers at the samte time nor receive double back pay for the same period. Definitions : "leaser" and "partners" held to be employees where right of "leaser" to hire "partners" was subject to approval of employer and where hours and working conditions similar to those of other employees ; employer who in fact refuses to allow.such "leaser" to hire "partner" becomes prospective employer within the meaning of the Act. Mr. Paul S. Kuelthau, for the Board. Pershing, Bosworth, Dick & Dawson, by Mr. T. Raber Taylor, of Denver, Colo., for the respondent. Mr. William H. Bartley, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge duly filed April 9, 1941, by International Union of Mine, Mill and Smelter Workers, herein called the Union, 36 N. L. R. B., No. 52. 288 VETA MINES, INCORPORATED 289 the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-second Region (Denver, Colo- rado), issued its complaint dated April 9, 1941, against Veta Mines, Incorporated, of Telluride, Colorado, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Sec- tion 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the respondent and the Union. The complaint, as amended at the hearing, alleged in substance that the respondent (1) refused to hire Emil Millich in December 1939, Alfonzo Roy in July 1940, and Leonard Talbot and Charles Dosher in March 1941 because of their membership in and activities on behalf of the Union, and (2) by these acts, and by urging, per- suading, and warning its employees not to join the Union, and by threatening them with discharge and other reprisals if they did so, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereafter, the respondent filed its answer, dated April 21, 1941. As amended at the hearing, the answer denied all the material allega- tions of the complaint, except that which alleged that the respond- ent is engaged in the business of mining and milling ore. Pursuant to notice, a hearing was held on May 5 and 6, 1941, at Telluride, Colorado, before James C. Paradise, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded the parties. At the opening of the hearing counsel for the Board moved to amend the complaint by adding an allegation concerning the alleged discriminatory refusal to hire Talbot, and Dosher. The motion was granted without objection. Another motion to amend the complaint in certain minor details was also granted. The respondent's motion that the complaint be made more definite and certain was granted in part and denied in part, and counsel for the Board duly provided the respondent with the specifications ordered to be furnished.' The respondent contends in its exceptions that this ruling, in so far as it denied the motion, was a denial of its right to prepare a defense, The Trial Examiner granted that part of the respondent 's motion which called for the names of the respondent 's officers and agents allegedly involved in the refusals to hire Emil Millich and Alfonzo Roy and the dates on which such refusals occurred. The remainder of the motion, which was denied, called for the exact place where the refusals to hire took place. 433118-42-vol. 36-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since the complaint specified only that the refusals to hire Millich and Roy took place "at the mine and mill," which covers an area of several miles. No application was made by the respondent for an adjournment to prepare a defense as to Millich and Roy. We think that the respondent was given ample opportunity to prepare its de- fense and that there is no merit in the respondent 's contention. The Trial Examiner's ruling is hereby affirmed . At the close of the Board's case and at the close of the entire case the respondent moved that the complaint be dismissed in so far as it alleged a discriminatory refusal to hire the four men named therein. Decision on this motion was reserved by the Trial Examiner. In the Intermediate Report the motion was denied as to Millich and Roy, and granted as to Talbot and Dosher. At the close of the hearing a motion by the Board that the complaint be conformed to the proof was granted. During the course of the hearing the Trial Examiner made rulings on several other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. Following the close of the hearing the respondent filed a brief. Thereafter the Trial Examiner issued his Intermediate Report, dated June 6, 1941, copies of which were duly served upon the parties: In his Intermediate Report the Trial Examiner found that the respond- ent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. The Trial Examiner recommended that the respondent cease and desist from the unfair labor practices and take certain affirmative action to effectuate the policies of the Act. He further recommended that the complaint be dismissed as to Talbot and Dosher. On June 16, 1941, counsel for the respondent and the Board entered into a stipulation for the correction of certain errors in the transcript of testimony . The Board hereby orders that the stipulation be made a part of the record and that the transcript be corrected in accordance with the stipulation. Thereafter, the respondent filed exceptions to the Intermediate Re- port and a brief in support thereof. Pursuant to notice duly served upon the parties , a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on August 12, 1941. The re- spondent was represented by counsel and presented oral argument. The Board has considered the respondent's exceptions and briefs, and in so far as the exceptions are inconsistent with the findings, con- clusions, and order set forth below , finds them to be without merit. Upon the entire record in the case, the Board makes the following: VETA MINES, INCORPORATED FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 291 The respondent is a Colorado corporation having its principal office and place of business in San Miguel County, near the city of Telluride, Colorado, where it is engaged in mining and milling ore containing gold, silver, lead, and penalty quantities of zinc and iron. During 1939 the respondent produced gold and silver bullion valued at $279,892.93, which was sold and shipped to the United States Mint at Denver, Colo- rado, and concentrates valued at $863,703.29, which were sold and shipped to the American Smelting & Refining Company at Leadville, Colorado, where they were commingled with concentrates from other sources and smelted. The resulting product, lead bullion, was shipped to a refinery owned and operated by the American Smelting & Refin- ing Company at Omaha, Nebraska, where it was refined for the pro- duction of gold, silver, and lead. The concentrates produced by the respondent in 1940, valued at not less than $753,483.11, were disposed of in the same manner, while the silver and gold bullion produced by the respondent in 1940 were sold to the United States Mint at Denver. During the period from January 1 to November 25, 1940, the re- spondent purchased. equipment,and supplies valued at $274,378.32. Of this amount 6.87- percent, or about $19,000 worth, was transported to the mine and mill of the respondent from States other than Colorado. II. THE ORGANIZATION INVOLVED International Union of Mine, Mill and. Smelter Workers, affiliated with the Congress of Industrial Organizations, is a labor organization which admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Refusals to hire Emil Millich and Alfonzo Roy Emil Millich and Alfonzo Roy testified without contradiction and we find that on July 15, 1939, they were employed by Shenandoah- Dives Mining Company at Silverton, Colorado, about 80 miles distant from Telluride; that they were members of Local 26 of the Union; that Local 26 called a strike at Shenandoah-Dives Mining Company effec- tive as of July 16, 1939, in which strike they participated; that they Iemainecl on strike until November 25, 1939; that a new union, called the San Juan Federation, was organized at Silverton and agreed that the employees should return to work; that Millich and Roy did not join the San-Juan Federation; and that they did not return to work 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Shenandoah-Dives MiningCompany.2 The complaint alleges and the answer denies that they were refused employment by the respond- ent because of their membership in and activities in behalf of Local 26 of the Union. The Trial Examiner found affirmatively and the respondent takes exception thereto. Although Millich was refused employment on or about December 27, 1939, and Roy was not refused employment until July 7 or 8, 1940, Roy's case is discussed first because it sheds important light on that of Millich. Roy. In July 1940, Narciso Grassotto, theretofore a regular em- ployee of the respondent, became a "leaser." The system of leasing then in use at the mine was as follows: When it became unprofitable for the respondent to exploit a working place in the usual manner, with the result that it might be necessary to lay off some miners, the respondent "leased" one of these places or sections to one of the miners. The latter then obtained men to work with him on the "lease," these men being referred to in the record as "partners" of the "leaser." The "leaser" was paid by the respondent on the basis of the amount and quality of the ore produced from the "leased" working place and paid his partners out of the proceeds. Although the respondent had a printed lease form, there is no evidence that it was in use in July 1940, nor does it appear that it has ever been in general use. Grassotto, who started to work his lease on July 6,1940, had merely an informal verbal understanding, terminable at will.-' Grassotto testified that as a leaser, his right to hire "partners" was subject to the approval of Herbert Lines, then the respondent's mine superintendent, and that he sought the latter's approval before he hired anyone; that on July 3, 1940, he spoke to Roy, with whom he was friendly and who indicated a willingness to work on the Grassotto lease; that he wanted to hire Roy; and that on July 7 or 8 he went to Lines to obtain his approval. According to Grassotto, who is still in the respondent's employment, the following conversation ensued : I [Grassotto] said, "I have a friend of mine from Silverton. Is there a chance to get him in with me on the lease." He [Lines] asked me if he had any trouble in Silverton, and then I said "Yes. It doesn't pay to tell it lie because today, to- morrow, or the day after tomorrow you will find out the same thing." Then he said, "I am sorry I can't put him on because I have orders from headquarters, from the big boss. He can't put no mail from Silverton on from the C. I. 0." 2 Cf. Matter of Shenandoah-Dices Mining Company and International Union of Mine, Mill ct Smelter Workers, Local No. 26 , etc., 35 N. L. R. B., No. 210. 7 The lease was ended by the respondent on September 15, 1940, because , according to Grassotto, it was "too much trouble." 'VETA MINES, INCORPORATED 293 He said, "I am sorry you can't put on that man." He said, "I had four men here on one day asking for a job. I knew one of the men very well. He showed me how to work when I was a kid; because he worked dn a mine for my father." He said, "I am sorry to turn them down because they came from Silverton." Grassotto testified further that he then hired. two other men whom Lines approved after being satisfied that they did not come from Sil- verton. Lines' testimony was equivocal. He testified that there was no rule that his approval had to be obtained before a leaser could hire anyone, and that the leasers would "not necessarily" come to him for such ap- proval; that he never disapproved the hiring of anyone on a lease, and that he knew of no cases where his approval had been sought. He then admitted that Grassotto had recommended the hiring of one Girardi to work on his lease and that he had approved such hiring and had hired Girardi on Grassotto's recommendation. Lines also admitted having been consulted with respect to, and having approved, the hiring of a man on another lease in July 1940. Lines testified further that Grassotto may have asked him whether he could hire Roy. Asked whether he had told Grassotto that he could not hire Roy because he had orders not to employ any C. I. 0. men from Silverton, he replied : "No, I don't recall that." Pressed by the respondent's counsel for an answer, he again replied : "I don't recall it." Lines denied having told Grassotto that he had previously rejected four men because they came from Silverton and denied that he had received any orders not to hire union men from Silverton. The Trial Examiner, who had an opportunity to observe the de- meanor of the witnesses, credited the testimony of Grassotto. Upon the entire record, we find that Grassotto was required to obtain the approval of Lines before he could hire anyone to work with him or that Grassotto reasonably believed that he was obliged to get such approval ;4 that he wanted to employ Roy who desired to work with him; that he asked Lines on July 7 or 8 whether he could hire Roy; and that Lines replied in substance as testified to by Grassotto. Grassotto continued to work his lease until September 15, 1940, when it was terminated by the respondent. Thereupon Grassotto became a regular employee of the respondent. The respondent contends that Grassotto was not an employee but was an independent contractor. We have found above that the so- called lease was verbal, vague in its terms, and terminable at the will 4It is immaterial whether Grassotto was required to obtain Lines' approval or only reasonably believed that he was under such a duty . Grassotto did seek such approval in the case of Roy , and Lines did refuse to allow Grassotto to hire Roy. 294 DECISIONS OF NATIONAL; LABOR, RELATIONS BOARD of the respondent, and that.Grass'otto's right: to: hire, was subject to the approval of Lines or at least that Grassotto reasonably understood that it was subject to such approval. The pay check given Grassotto for the period ending July 31, 1940, particularly the. endorsement thereon, was clearly the pay check of an employee, and not of an inde- pendent contractor. John Ferguson, Jr., the respondent's mill super- intendent, testified that he believed that the leasers were carried on the books of the respondent as employees. No testimony to the con- trary was offered, and we find, accordingly, that such was the. case. The respondent customarily made deductions from the amounts due the leasers for Social Security taxes, unemployment insurance, Work- men's Compensation insurance,' group medical services, and lamp rental for all working on the lease including the leaser, in the same man- ner as it made deductions from the pay of its other regular employees. The respondent's claim that these deductions were made by it merely for the convenience of the leasers or that the respondent merely acted as collecting agent for the leasers fails to explain why the deductions affected the leasers themselves if they were not in fact considered as employees. Lines testified, and we find, that the Grassotto lease was in a section of the mine being worked by the respondent and, accordingly, that the leaser and those working with him usually followed the respond- ent's rules, obtained their lamps and badges in the same manner as other regular employees, went into and came out of the mine with the rest of the employees-"had to go in with the shift and come home with the shift,"-and always worked the same hours as the rest of the employees. Lines, on his rounds through the mine, in- spected the work done by the leasers and gave them directions if they were doing anything wrong. Although the discharge or lay-off of a man working with a leaser was generally within the control of the leaser, if he hired a man whose incompetency or personal, habits affected the safety of the other employees of the mine, Lines would remove him. Upon all the evidence we find, as did the Trial Examiner, that Grassotto and the men who worked with him in July 1940 were em- ployees of the respondent.' The creation of a lease through a vague, 5 The respondent asserted in its brief that Colorado statutes required -such deductions. This would seem to indicate that the Colorado legislature considered, the leaser and his partners to be employees within the policy of these statutes without regard to their status at common law. In determining whether they are employees of the respondent within the meaning of Section 2 (2) and (3) of the Act , we seek to apply the policy and pro- visions of the Act and in such inquiry to take into consideration , but not be rigidly bound by, common-law concepts. 9 Matter of Sierra Madre-Lamanda Citrus Association and Benjamin H. Betz d/b/a Betz Packing Company and , Citrus Packing House Workers Union, Local No. 20766, 23' N. L. R. B., No. 13; Matter of H. F. Wilcox Oil and Gas Company; Wilcox Refining, 'ETA MINES, INCORPORATED 295, informal Vei-bal agreement terminable at will was -merely a device enabling the respondent to give to employees, who might otherwise be laid off, employment, upon terms less costly to the respondent than the ordinary terms of employment. But even if Grassotto had been ordinarily considered an independent contractor, since we have found that Lines did refuse to allow Grassotto to hire Roy on the " lease," we should, in any event, find that the respondent was the prospective employer of Roy within the meaning of the Act. It is evident from Lines' statements to Grassotto and from. the entire record, and we find, that Lines, acting in behalf, of the respond- ent, ref used to pernlit Grassotto to hire Roy because of Roy's union affiliation. Millich. According to Millich, on or about Christmas' of 1939, but probably after Christmas, he was in Telluride and heard that Super- intendent Lines was in town. He went to the lobby of the Sheridan Hotel in Telluride at about 5:.30 p. m. and asked to see Lines. He, knew Lines by sight, having worked for him for a time at the Pride of the West Mine in Silverton. Lines entered the lobby from some -where on the loby or "botom" flor, acompanied by one Hary Davis.7 Millich said "Hello, Herb," and Lines acknowledged the greeting. Millich testified that the following conversation ensued : I asked him for a job. He [Lines] asked me what my name was and I told him my name was Emil Millich. He studied for a while and said, "Yes, I think I can hire a man like you. Can you operate a muck machine in a mine?" I said "Yes." He said, "You know what you should do." I said "What should I do.". He said, "You should change your name and Social Security- number and when you do I shall hire you." Millich testified at first that he made no response to Lines' sugges- tion that he change his name and Social Security number, but later stated that he told Lines that he would not do so. He testified further that Lines stated : Yes, I can use a machine operator pretty handy now, but I can't put you on until you change your name and Social Security number. I can't hire you today but after the holidays when all of the men return to their jobs, I will, if I can, put you to work right. away. Further questioning elicited testimony to the effect that Lines stated that he would put Millich to work if he changed his name and Social Division and/or W. M. Fraser and Oil Workers International Union, Local 257, 28-- N. L. R. B ., No. 19; Matter of Solvay Process. Co. and Wm. O. B. ThomLpson and District- 50, United Mine Workers of America, 26 N. L. R. B., No. 68. 7 Davis was identified by Lines as having been his mine foreman. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Security number, but not otherwise. Millich also testified that during the course of the conversation he told Lines that he had worked for him at the Pride of the West Mine. Millich was unable to identify Lines at the hearing. Asked to do so, he finally pointed to a man sitting only two seats away from Lines, as resembling him. From the witness' vantage point, he had to look past Lines in order to see the other person whom he selected. Lines testified that as mine superintendent he had charge of the hiring of miners in December 1939; that he needed miners at the time; that he customarily gave preference in employment to men with mining experience; 8 that he lived at the Sheridan Hotel at that time; and that during the month of December 1939, three or four men applied to him for work at the hotel every evening. - He also testified that he generally went to dinner at 5:30 p. m., which would account for his presence on the lobby floor of the hotel at that hour. He did not deny that Davis was with him at the time Millich claimed to have seen him, nor did he deny that Millich applied to him for a job, but asserted that Millich may have applied, and asserted further that, "I don't remember every one that called." He also admitted having worked at the Pride of the West Mine for about 6 months, in the first part of 1937, but stated that he did not remember Millich as having worked there. He denied having told Millich to change his name and Social Security number. He admitted having hired a machine oper- ator on December 31, 1939. That was the type of job he mentioned to Millich, according to the latter's testimony. It is plain that Lines' testimony lends credence to the claim of Millich that he applied to Lines for a, job in December 1939: Millich's testimony concerning the time, place, and circumstances of the appli- cation, and concerning Lines' mention of the availability, of a machine operator's job, is fully in accord with the admissions made by Lines. We attach little weight to the fact that Millich was unable to identify Lines at the hearing. Since Millich had known him for only a short time in 1937, and had seen him only briefly in December 1939, it is not surprising that Millich could not recognize him 16 months later. That certain inconsistencies are present in the testimony of Millich and that his testimony was somewhat disjointed may be granted, but the Trial Examiner attributed these defects to the extreme difficulty which he had in expressing himself lucidly in English. Lines' testi- mony was equivocal and evasive. The Trial Examiner, in resolving the conflict between the testimony of Millich and Lines, also gave much weight to the testimony of Narciso Grassotto, as discussed in connection with the case of Roy, and credited Millich. Upon the S Lines testified that "if it were a miner . or experienced man I always hired him," even if the applicant were a stranger. VETA MINES, INCORPORATED 297 entire record, we concur in the Trial Examiner's finding, and find, accordingly, that on or about December 27, 1939, Millich applied to Lines for a job under the circumstances testified to by Millich; that Millich was an experienced miner whom, by his own admission, Lines would normally have employed; and that Lines told Millich that a machine operator's job was available, and that he would employ him as a machine operator if he changed his name and Social Security num- ber, but that otherwise further application for employment by Millich would be futile. There is no-reason apparent why Lines should have asked Millich to -change his name and Social Security number unless Millich's name was a bar to his employment by the respondent. Further light is shed upon this problem by the testimony of Grassotto set out above in con- nection with Roy's case. Upon the entire record, we find, as did the Trial Examiner, that it was the respondent's policy not to employ union members who had participated in the strike at the Shenandoah- Dives Mining Company mine, and that Lines asked Millich to change his name and Social Security number in order to circumvent this policy.9 Both the employment policy of the respondent and the con- dition of employment imposed by Lines were discriminatory against members of the Union, and discouraged membership in that organi- zation. The respondent made no attempt to prove that prior to Decem- ber 1940,10 it employed even one union member who had joined in the strike at Silverton. Upon the entire record, we find that the respondent discriminated with regard to the hire and tenure of employment of Millich and Roy, thereby discouraging membership in the Union, and that the respond- ent, by such discrimination and.by the statements of Lines to Grassotto on July 7 or 8, 1940, interfered with, restrained, and coerced its em- ployees in the exercise of the righf^ guaranteed in Section 7 of the Act. B. Leonard Talbot and Charles Dosher In his Intermediate Report, the Trial Examiner recommended that the complaint be dismissed. in so far as it alleged that the respondent engaged in unfair labor practices in refusing to employ Leonard Talbot and Charles Dosher. No exceptions have been taken thereto. We have examined the record with respect to Talbot and Dosher and we agree with the Trial Examiner. We shall dismiss this part of the complaint. 9 Lines' willingness to do this is explainable by the fact that he needed experienced men in December 1939. 10 It appears that several were hired after that date. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 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 lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent engaged in unfair labor practices -within the meaning of Section 8 (1) and (3) of the Act, we must order the respondent, pursuant to the mandate of Section 10 (c), to cease and .desist therefrom. We also predicate our cease and desist order upon the following findings. Discrimination because of a person's union .affiliation goes to "the very heart of the Act." 11 The respondent's course of conduct discloses a purpose and tendency to defeat self- ,organization and its objects.12 Because of the respondent's unlawful conduct and its underlying purpose and tendency, we are convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the respondent's .conduct in the past.13 The preventive purpose of the Act will be thwarted unless our order is coextensive with the threat. In order therefore to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair. labor practices, and thereby to minimize industrial strife which burdens and obstructs commerce, and -.thus effectuate the policies 'of the Act, we must order the respondent to cease and desist from in any manner infringing the rights. guaranteed in Section 7 of the Act. We shall also order the respondent to take certain affirmative action designed to effectuate the policies of the Act. We have found that Millich and Roy were discriminatorily denied employment by the respondent. We shall therefore order that the respondent offer them employment at the same or substantially equiv- alent positions at which they would have been employed had the respondent not discriminated against them. "See National Labor Relations Board v. Entwistle Manufacturing Co., 120 F. (2d) 532 (C. C. A. 4) ; Cf. Matter of Louis Kramer, et at . and International Ladies' Garment Workers' Union, 29 N. L. R. B., No. 135; Matter of Burry Biscuit Corp. and Cracker Biscuit Workers Union Local 411 of the Bakery & Confectionery Workers International .Union of America, affiliated with the A. F. of L., et al., 24 N. L. R. B., No. 117. 18Cf. Phelps Dodge-Corp. v. National Labor Relations Board, 61 S. Ct. 685, where the .Supreme Court stated : "Discrimination against union labor in the hiring of men is a dam to self-organization at the source of supply. The effect of such discrimination is not confined to the actual denial of employment ; it inevitably operates against the whole idea of the legitimacy of organization. In a word, it undermines the principle which, .as we have seen, is recognized as basic to the attainment of industrial peace." 11 See National Labor Relations Board v. Empress Publishing Co., 312 U. S. 426. VETA MINE S, INCORPORATED 299 Roy obtained other regular and substantially equivalent employ- ment on October 5, 1940, but desires employment in the respondent's mine. For the reasons set' forth in Matter of Ford Motor Company and International Union, United Automobile Workers of America, Local Union No. 0449, 31 N. L. R. B., No. 170, we find that it is necessary in order to effectuate the purposes of the Act that we order the re- -spondent to offer Roy employment as above indicated. We shall also order the respondent to make Roy whole for the loss of pay he suffered by. reason of the discrimination against him by pay- ment to him of a sum equal to the amount which he would normally have earned as wages from July 8, 1940, to the date on which he is offered employment by the respondent, less his net earnings 14 during said period. Millich underwent an operation for the removal of a kidney on February 6, 1941. He is unable to work now and will be unable to work until at least February 1942. He desires employment at the respondent's mine when his physical condition permits. We shall order that the respondent offer employment to - Millich as above indicated, said offer to be made upon receipt by the respond- ent of certification by a physician to be mutually agreed upon by the respondent and the Union, or, in the event that they cannot agree, by a physician selected by the Regional Director for the Twenty-second Region, that Millich is able to resume his normal work. In the event that such a position is not available at the time Millich is thus certified as able to resume his normal work, the respondent shall give him pre- ferred status and shall offer him employment at the same or substan- tially equivalent position at which he would have been employed on January 2, 1940, or at any position for which he is qualified as such employment becomes available and before other persons are hired for such work. Should a doctor's certificate attesting to his physical fit- ness not be submitted to the respondent before April 1, 1942, 'the re- quirement that the respondent employ him or give him preferred status shall terminate. We shall also order that the respondent make Millich whole for any loss of pay lie has suffered by reason of the discrimination against him by payment t:, him of a sum equal to the amount which he nor- 14 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 America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal, or work-relief projects shall be considered as earnings . See Republic Steel Corporation v. National Labor Rela- tions Board, 311 U. S . 7. Back pay actually received pursuant to our Order in the Shenandoah-Dives case , supra,. footnote 1, shall also be considered as earnings. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mally would have earned as wages from January 2, 1940,15 to the date on which he became so physically incapacitated as.to be unable to work, and from the date on which the certification is presented to the re- spondent to the date on which he is offered employment as above indicated, less his net earnings 16 during said periods. The Board has issued a Decision and Order in Matter of Shenan- doah-Dives Mining Company 17 which requires the employer in that case to offer reinstatement with back pay to Millich and Roy, among others. We find that the Order in that case does not affect the pro- priety of the Order herein. Millich and Roy, of course, will not be able to work at both mines at the same time, nor will they receive double back pay for the same period 18 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Union of Mine, Mill and Smelter Workers is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Emil Millich and Alfonzo Roy and thereby discouraging membership in International Union of Mine, Mill and Smelter Work- ers, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights .guaranteed in Section 7 of the, Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are.unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent did not discriminate in regard to the hire and tenure of employment of Leonard Talbot and Charles Dosher. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the "Although the refusal to employ Millich occurred on or about December 27, 1939, Millich testified that Lines had told him that he would not be luring anyone until "after the holidays." This meant not before January 2 , 1940, and his back pay should therefore commence from that date. 1° See footnote 14, supra. 17 Supra, footnote I. 1s See footnote 14, supra. VETA MINE'S, INCORPORATED 301 respondent, Veta Mines, Incorporated, Telluride, Colorado, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Union of Mine, Mill and Smelter Workers or in any other labor organization of its employees by discriminating in regard to the hire or tenure of employment or any term -or condition of employment; (b) In any other manner interfering with, restraining, or co- ercing its 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, or to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection,, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer immediate employment to Alfonzo Roy at the same or a substantially equivalent position at which he would have been employed on or about July 7 or 8, 1940, or thereafter had the re- spondent not unlawfully refused to hire him; (b) Offer to Emil Millich -upon receipt of certification by a physician to be mutually agreed 'upon by the respondent and the Union, or, in the event that they cannot agree, by a physician se- lected by the Regional Director for the Twenty-second Region, that he is able to resume his normal work, employment at the same or a substantially equivalent position at which he would have been em- ployed on or about January 2, 1940, had the respondent not unlaw- fully refused to hire him; in the event that such a position is not available at the time Millich is thus certified as able to resume his normal work, the respondent shall give him preferred status and shall offer him employment at the same or substantially equivalent position at which he would have been employed on or about Janu- ary 2, 1940, or at any position for which he is qualified, as such employment becomes available and before other persons are hired for such work; should a doctor's certificate attesting to his physical fitness not be submitted to the respondent before April 1, 1942, the requirement that the respondent employ him or give him preferred status shall terminate; (c) Make whole Emil Millich and Alfonzo Roy for any losses of pay they have suffered by reason of the respondent's refusal to hire them by payment to each of them of a sum equal to that which he normally would have earned as wages during the period from the date he was refused employment to the date on which he is offered employment, as provided in Section 2 (a) of this Order in the case of Roy, and to the date on which he became so physically incapaci- 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tated as to be unable to work and from the date on which the cer- tification is presented to the respondent to the date on which he is offered employment as set forth in Section 2 (b) of this Order, in the case of Millich, less his net earnings 19 during said periods; (d) Post immediately in conspicuous places throughout its mine and mill and in its offices and maintain for a period of not less than sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the con- duct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) hereof; and (3) that the respondent will not discriminate against any applicant for em- ployment because of his membership or activity in International Union of Mine, Mill and Smelter Workers ; (e) Notify the Regional Director for the Twenty-second Region in writing; within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith, 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 in refusing to employ Leonard Talbot and Charles Dosher. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. 10 See footnote 14, supra.