Golden Turkey Mining Co.

In the Matter of GOLDEN TURKEY MINING COMPANY and INTERNA- TIONAL UNION OF MINE, MILL, AND SMELTER WORKERS, LOCAL No. 410 Case No. C-1765.-Decided August 20, 1941 Jurisdiction : mining and concentration of ore industry, Unfair Labor Practices: Discriniiiu,tion: refusal to reinstate after a non-discriminatory lay-off because of union activity ; discharge following a discriminatory transfer because of union activity; charges of, dismissed as to one employee although such em- ployee was discharged because of his affiliation with the union where dis- charge resulted in reliance upon erroneous advice of the Board's Field Examiner ; charges of, dismissed as to another employee. Collective Bargaining: majority established by membership in union ; with- drawals from union as a result of employer's unfair labor practices held not to affect majority-failure to negotiate in good faith : delaying negotiations ; refusal to accord union exclusive recognition; reluctance to meet with repre- sentatives of union ; announcement of wage increases without crediting union. Remedial Orders : reinstatement and back pay ordered; employee discrim- inatorily transferred and discharged ordered reinstated to former position and back pay awarded for periods between date of discharge to date of Board's Field Examiner's erroneous advice and between date of Decision to date of offer of reinstatement. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees at the Company's mine and mill, excluding office and supervisory employees and the camp cook ; no controversy as to. Mr. Paul S. Kuelthau, for the Board. Mr. Denison Kitchel, of Phoenix, Ariz., and Mr. Charles 0. Mc- Daniel, of Prescott, Ariz., for the respondent. Mr. Orville Larson, of Douglas, Ariz., and Mr. Joseph Kovner, 'if Washington, D. C., for the Union. Mr. Bliss Daffan, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges' duly filed by International Union of Mine, Mill, and Smelter Workers, Local No. 410, affiliated 'The original charge was filed November 20, 1939; the amended charge, March 25, 1940 ; the second amended charge, April 22, 1940 ; and the'third amended charge , October 2, 1940. Pursuant to Article II, Section 36 (c), of National Labor Relations Board Rules and Regulations-Series 2, as amended, the case was transferred to the Twenty -second Region from the Twenty -first Region by Board order dated May 3, 1940. 34 N. L. R. B., No. 98. 760 GOLDEN TURKEY MINING COMPANY 761 with the • Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-second Region (Denver, Colorado), issued its complaint dated October 17, 1940, against Golden Turkey Mining Company, Cordes, Arizona, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) 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, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing,2 alleges in substance that the respondent discharged J. T. Groves, August 28,1939; C. A. Knight, October 30, 1939; and Fred Bratz, December 24, 1939, and thereafter refused to reinstate them because they joined or assisted the Union or engaged in concerted activities; and that on June 28, 1939, the respondent laid off J. F. McCallum and Nick Badovinatz, also known as Nick Badovnic, and refused thereafter to reinstate them because they joined and assisted the Union. The complaint further alleges in substance that respondent's production and maintenance employees at its mine and mill at Cordes, Arizona, excluding office and super- visory employees and the camp cook, constitute a unit appropriate for the purpose of collective bargaining ; that from about June 20, 1939, and specifically -on certain specified dates thereafter,, to wit, June 27, July 6, October 3, October 29, and November 13, 1939, the respondent refused to bargain with the Union; and that the respond- ent, during the period from April 1, 1939, down to and including the date of the complaint, urged, persuaded, and warned its employees to refrain from joining or retaining membership in the Union and from engaging in concerted activities with other employees for the purposes of collective bargaining or other mutual aid or protection and threatened its employees with discharge or loss of earning if they joined or assisted the Union or engaged in concerted activities for the purposes of collective bargaining or other mutual aid and protection. In its sworn answer, dated October 31, 1940, the respondent in sub- stance admitted that the Union represented a majority of the em- ployees in the above unit on June 20, 1939. The answer denied that the Union was a labor organization as alleged in the complaint, and denied further that the respondent had violated the Act. 2 At the opening of the hearing, the complaint was amended without objection by changing the name Nick Badovnic to Nick Badovinatz, also known as Nick Badovnic 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held from November 12 to 15, 1940, at Mayer, Arizona, before Frank Bloom, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by its rep- resentative; all parties participated in the hearing. Full oppor- tunity to be heard, to' examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the beginning of the hearing, the respondent requested a ruling upon a notice to produce certain correspondence in the possession of the Board; Counsel for the Board voluntarily produced certain documents referred to in said notice and the respondent's counsel expressed himself as being satisfied with said delivery of the docu- ments. The trial Examiner denied the respondent's motion to have counsel for the Board produce other documents referred to in the notice to produce. At the conclusion of the Board's case and again at the conclusion of the entire proceeding, counsel for the Board moved to conform the pleadings to the proof. Without objection, this motion was granted. During the course of the hearing the Trial Examiner made numerous other rulings on 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. At the conclusion of the hearing, the respondent moved to dismiss the allegations of the complaint. The Trial Examiner reserved ruling on the motion and disposed of it thereafter in his Intermediate Report, as indicated below. On December 20, 1940, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties. He found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He rec- ommended that the respondent cease and desist from the unfair labor - practices so found and take certain affirmative action to effectuate the- policies of the Act, and that the complaint be dismissed as to Bratz and Knight. On January 13 and 27, 1941, respectively, the Union and the respondent filed exceptions to the Intermediate Report. The respondent also filed a brief in support of its exceptions. Pursuant to request therefor by the respondent and notice duly served upon all parties, a hearing was held on March 6, 1941, at Washington, D. C., before the Board, for the purpose of oral argu- inent. The respondent and the Union were represented by counsel who participated in the argument. The Board has considered the exceptions and briefs filed by the respondent and the Union and except as the exceptions are consistent GOLDEN TURKEY MINING COMPANY 763 with the findings, conclusions, and order set forth below , finds no merit in them. Upon the entire record in the case , the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 3 The respondent is a corporation, organized under the laws of the State of Illinois on November 14, 1933, having its principal office and place of business at Cordes, Arizona. It has no parent corporation, subsidiaries, or branches. The respondent is engaged in the business of mining and concentrating ores bearing gold, silver, and lead values. It produces concentrates, all of which are shipped to El Paso, Texas, and to Mayer, Arizona. All the raw material used in the operation is the ore obtained within the State of Arizona. For the fiscal year ending October 3, 1939, the production was as follows : tonnage, 1946.5148 dry tons; gross value $206,876.62. The respondent concedes the jurisdiction of the Board. H. C. Mitchell is the vice president and general manager of the respondent and actively man- ages its properties. He and his brother-in-law are the sole owners of the stock of the respondent. II. THE LABOR ORGANIZATION INVOLVED International Union of Mine, Mill, and Smelter Workers, Local No. 410, is a labor organization, affiliated with the Congress of Indus- trial Organizations, admitting to membership production and main- tenance employees of the respondent. III. THE UNFAIR LABOR PRACTICES ° A. The refusal to bargain collectively 1. The appropriate unit The complaint alleges and the answer admits that the production and maintenance employees of the respondent at its mine and mill at Cordes, Arizona, excluding office and supervisory employees and the camp cook, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Nothing in the record warrants a change from the unit alleged in the complaint and admitted by the respondent. We find that the 8 The entire property of the respondent is known as the Golden Turkey Mine. It is made up of the Turkey Mine, the mill referred to as the Turkey Mill, and the mine and mill referred to as the Extension which was formerly known as the Golden Belt. These several operations are located within several hundred yards of one another. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production and maintenance employees of the respondent at its mine and mill at Cordes, Arizona, excluding office and supervisory em- ployees and the camp cook, at all times material herein constituted and that they now constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit The complaint alleges and the answer admits that the Union represented a majority of the employees in the above unit on June 20, 1939.4 On the record, counsel for the respondent stated that the Union represented a majority until the first week of August 1939. We find that on June 20, 1939, and at all times material herein, the Union was and that it is the duly designated repre- sentative of a majority of the employees in the appropriate unit. Pursuant to Section 9 (a) of the Act, the Union was and is, therefore, the exclusive representative of the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain collectively On May 28 or 29, 1939, a committee of the Union met with Mitchell, representing the respondent, for the purpose of collective bargaining. Among other things, the Union's demand for a 50-cent wage increase was discussed and Mitchell stated that an increase would be granted when the price of silver was definitely set by the United States Government. - After some further discussion regarding the right of the Union to conduct organizational activities on com- pany time and property, the meeting was adjourned. Another meeting was held on June 9. At this time, the question of a con- tract was discussed and Mitchell suggested that the Union prepare and present to him a copy of the contract it desired. This was done at a meeting on June 14. The proposed contract provided for exclusive recognition of the Union. At this meeting, the question of the Union's majority representation was raised. It was agreed that a check of the union membership cards would be made against the pay roll of the Company. This was done on June 20, and it was disclosed that the Union had a membership of 62 out of the 72 persons in the appropriate unit. On June 25 John Talent, president 4 It was stipulated that there were 72 employees in the unit on June 20 and that 62 were members of the Union at that time. GOLDEN TURKEY MINING COMPANY 765 of the Union and its leading spirit, was discharged. The Union thereupon voted 42 to 9 to strike unless Talent was reinstated. Orville Larson, the organizer for the Union, advised the Union not to go on strike, urging caution and suggesting that it would be preferable to try to settle the matter amicably with Mitchell. The strike was postponed pending negotiations with Mitchell. On June 27 a meet- ing was held between the union committee and Mitchell. Talent did not attend because members of the union committee felt that "bad feeling" existing between him and Mitchell hampered negotiations. At this meeting, Mitchell, among other things, definitely stated that he would not recognize the Union as exclusive bargaining representa- tive of the employees in the unit, but that he would recognize it for its members only. This was clearly a refusal by the respondent to bargain with the Union. Despite that fact, the Union made efforts to get what it could in the way of an agreement from Mitchell, and suggested that it would expect a counterproposal from him to its proposal of June 14. On July 6 another meeting was held with Mitchell in his attorney's office in Prescott. Mitchell submitted to, the union committee a written counterproposal, containing a pro- vision that the Union would be recognized for its members only. This was again a direct refusal to recognize the Union as exclusive representative of all the employees of the respondent within the appropriate,unit. The refusal to recognize the Union at the meeting of June 27 and the subsequent refusal to recognize the Union in the counterproposal submitted on July 6 are clear indications that the respondent had no intention of granting to the Union that exclusive recognition to which it was entitled as a matter of right. Mitchell testified that he was aware that at that time the Union was entitled to exclusive recognition. At a union meeting held on the evening of July 6 the employees considered the respondent's counterproposal. At that meeting the Union adopted a new proposal for submission to the respondent which contained a clause similar to that contained in the respondent's counterproposal providing 'for recognition of the Union for its members only, a clause relative to wage rates, and several other provisions which were not contained in the respondent's counterproposal. , On July 21 another meeting was held between the Union and the respondent for the purpose of discussing the new proposal of the Union. Mitchell brought up the subject of charges filed by the Union with the Board on June 29, 1939, stating that he would not enter into an agreement while these charges were pending.5 After discus- 5 The charges filed by the Union on June 29, 1939, alleged a refusal to bargain v ith the Union on June 15 , 25, and 26, 1939, and the discriminatory termination of employment of C. C. Shelton , Ted Snider, John N. Talent, Howard Dyer, and Ernest Richardson on various dates during the month of June 1939 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion it was agreed that the charges would be withdrawn by the Union, Talent would be reinstated with back pay, Dyer would be given 4 days' back pay and, together with the remaining employees named in the charge, placed on a preferential list to be reemployed when vacancies occurred, and the employees would receive a 15-per cent wage increase beginning with the next pay period. Agreement was also reached as to when negotiations relative to a contract would be resumed, although there is some conflict in the evidence as to this. Graham King, one of the members of the union committee, testified that it was agreed that negotiations relative to a contract would be resumed 30 days after July 21, provided that all charges filed by the Union had been withdrawn by that date. However, Mitchell and Howard Thomas, a member of the union committee who later resigned, testified that it was agreed that negotiations would be resumed within 30 days after the respondent received formal notice from the Board that the charges had been withdrawn. It is unnecessary to resolve this conflict, however, since all three witnesses are in accord that the resumption of negotiations was contingent upon the withdrawal of the charges. On the same day of the meeting the Union sent a telegram to the Regional Office of the Board at Los Angeles requesting withdrawal of the charges filed by the Union on June 29. Within 1 or 2 days thereafter the respondent sent Talent and Dyer checks covering the back pay due them in accordance with the settlement arrangement. On July 28 the respondent posted a notice advising its employees of the new wage schedules to become effective in accordance with the agreement. The notice stated that the wage increases would be in- cluded in checks to be received by the employees on the following day but did not refer to the Union or the part it played in obtaining the increase. On July 29 Mitchell wrote to Talent stating, in substance, that as soon as he received information from the Regional Office that the charges had been completely and finally withdrawn, he would send Talent a check covering additional back pay due him under the agree- ment and would at that time "go into the question" of Talent's reemployment. - On July 30 Mitchell wrote to Maurice Howard, a Field Examiner in the Los Angeles office, stating, inter alia, that : As long as I was dealing'with a committee of my own employees, there was a feeling of mutual confidence and I believe that any difficulties of a reasonable nature could and were disposed of satisfactorily to both parties. However, when the meetings began to be attended by the C. I. O. organizers it became impossible to keep the discussions on a conservative and friendly basis. I GOLDEN TURKEY MINING COMPANY 767 wish you would advise me whether the employer is 'obligated by law or by accepted procedure to meet with a local committee or any five employees and two or more C. I. O. organizers, who do most of the talking and otherwise dominate the proceed- ings? . . . I have no objection to meeting with a committee of my own employees once or twice a month to discuss matters of mutual interest but I think I have the right to know in advance the object of the meeting so that I may have the necessary data available to answer the questions and to have had the opportunity of giving such questions thought. This communication to Howard is of special significance in view of Mitchell's agreement to meet with the Union to negotiate a con- tract. It is obvious that Mitchell resented the presence of the union representatives and preferred to deal with is own employees. Like- wise, this letter, together with the notice posted on July 28-obviously worded so as to prevent any credit being given the Union for its efforts in securing the wage increase for the employees-follow the same design as the respondent's previous refusal to grant the Union exclusive recognition and indicate that the respondent, notwithstand- ing its agreement of July 21 to resume negotiations relative to an agreement upon dismissal of the charges pending before the Board, had no intention of bargaining collectively with the Union. On the other hand, the Union's prior acceptance of the respondent's pro- posal-providing for recognition for its members only, and the fact that Talent did not participate in some of the negotiations with Mitchell, because the union committee felt that the "bad feeling" between him and Mitchell hampered such negotiations, indicates the extent to which the Union was willing to forego some of its rights in order to obtain an agreement with the respondent. On July 31 Mitchell' advised Howard by letter that he had con- cluded that the reemployment of Talent and Dyer was "impossible" because of "insolent" telephone calls he had received from them and "new threats to file new charges" with the Board. While the record does not disclose what telephone calls, if any, he had received from Dyer, Mitchell stated in his letter that Talent had spoken to him over the telephone "very, insolently . . . about the new. wage sched- ules which were posted on the 28 inst." On August 1 Mitchell re- ceived a note from Talent stating that the old charges had been reopened, that new charges had been filed, and that he had requested that a Field Examiner for the Board be sent "at once." 6 On August 22 Mitchell was advised by Howard that the original charge had not fi New charges were filed by the Union on August 4, alleging the discriminatory discharge of Talent and Dyer on June 25, and a refusal to bargain with the Union on June 15 and 25 and July 6 and 21, 1939. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been withdrawn, that the Union was insisting upon the respondent's full compliance with the agreement of July 21, including the re- instatement of Talent, and that new charges had been filed on Au- gust 12 alleging four additional discriminatory discharges.? There- after a series of conferences were held between Mitchell and Robert Davies, a Field Examiner for the Board, which finally resulted in an agreement dated September 30, 1939. This agreement provided, inter, alia, that the respondent would recognize and bargain with the Union as the exclusive representative of the employees, that the four additional employees named in the charge filed on August 12 would be reinstated with back pay, that Talent would be paid a specified sum without reinstatement, that four other employees would be placed on a preferential list to be rehired when vacancies occurred, and that all charges filed by the Union with the Board would be withdrawn. This agreement also provided that the respondent would post a notice prepared by the Regional Office of the Board and set October 21 as the first date for a meeting between the parties for the purpose of collective bargaining. In accordance with the last two stated provisions of the agreement, the respondent posted a notice on its bulletin board on October 12 stating in substance that it recognized the Union as exclusive bargaining representative of the employees and the parties held a meeting on October 23 for the purposes of collective bargaining. During the course of the meeting it was agreed that a committee would be appointed by the Union for the purpose of handling grievances with the respondent. Thereafter, the griev- ance committee was appointed by the Union and the respondent was notified of its personnel by letter dated October 23, 1939. On Octo- ber 29 the respondent advised the Union by letter that the committee appointed by the Union was not acceptable to it. Mitchell later stated that he disapproved of the committee because he did not consider that its personnel was representative of the employees. On November 13, 1939, the respondent and the Union met again. Notwithstanding the terms of the settlement agreement of September 30, Mitchell advised the Union at this meeting that he would no longer recognize it as the bargaining representative of the employees until the Union demonstrated that it represented a majority of the em- ployees. Mitchell testified that this action was taken upon the' advice of counsel which he had received between the meetings of October 23 and November 13. Despite the fact that he so advised the Union, Mitchell permitted the notice, recognizing the Union as exclusive representative, to remain posted upon the bulletin board until Decem- ber 30, 1939. The claimed justification by the respondent for the 4 The additional employees named in the new charge were Graham E. King, Elton McCormick, C. C. Crawford , and William Thompson. GOLDEN TURKEY MINING COMPANY 769 action taken on November 13 is to be found in a documents circulated in the plant on or about August 1, 1939, by Howard D. Thomas, Bert Pherson, Arthur Newberry, and other employees, which was signed by 45 employees and presented to the respondent on or about August 5, 1939, fully 3 months before the respondent elected to discontinue bargaining negotiations because of an asserted doubt concerning the Union's majority status. Moreover, the testimony of employees instru- mental in the circulation of this petition clearly reveals that they were motivated in this action by their fear that if the unsettled conditions then existing among the respondent's employees, and caused by the respondent's unfair labor practices, continued, their jobs would be placed in jeopardy.9 There is no evidence that any of the employees who signed the petition advised the Union officials of such action or of their intention of withdrawing from the Union. Moreover, there is evidence that some employees who signed the petition continued their active participation in union affairs even to the extent of soliciting members. From the foregoing it is clear that from the time of its first refusal to grant the Union the exclusive recognition to which it was entitled the respondent sought to evade its obligation under the Act to bargain collectively with the Union. Such evasion took the form, among others, of delay. At the first meeting between the respondent and the Union collective bargaining was delayed because of the respondent's assertion that no agreement could be made relative to the Union's demand for a wage increase until the price of silver had been set by .the Government. On June 9, 1939, the respondent suggested that the Union present it with a proposed contract. When the Union complied with this suggestion on June 14, the respondent questioned its status as majority representative, thus necessitating further delay while such majority could be proved to the satisfaction of the respondent. 8 Notice of Agreement To Whom It May Concern : We the undersigned do hereby give notice , as employee's of the Golden Turkey Mining Company, declair our-selves as free agents to contract for employment without the aid of any agent, or agents , or originations. We the undersigned do, agree to continue work at the wage and hour 's now in effect, for the remaining year 1939 , if said operator 's will cooperate and give fair treatment to the men employed by said mining company. Howard D. Thomas, who, according to his testimony , had prepared this petition, gave as his reasons therefor, Mr. Pherson, and myself, in talking about the unrest of the men the indecision among them of what to do, of the very atmosphere that pervaded the whole place down there of unrest and suspicion of each other , we decided that something had to be done. The respondent's witness , Pherson, testified that he signed the petition : "why, to con- tinue work . It looked as though it might be closed down if it was carried on the way they was complaining and threatening." Newberry's reply, when asked his reason for signing the petition , was, "well, the reason was the way the activity was going on out at the mine. No one was satisfied, everybody was discouraged and we figured we had to do something or else they was going to shut the place down and there would be a bunch out of a job." 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Such majority representation having been proved, however, the re- spondent still denied the Union exclusive recognition and agreed to recognize it for its members only. Although it is clear that under these circumstances, despite the Union's acceptance of this illegal limitation there could be no genuine collective bargaining as contem- plated by the Act,10 the Union still sought to bargain collectively on July 21 and was again frustrated by the respondent's resort to the charges filed on June 29 as a reason for further delay. That the respondent did not in good faith assert the charges as an obstacle to bargaining is shown not only by its previous dilatory tac- tics, but also by the readiness with which it seized upon the first pretext for repudiating the agreement of July 21 within a few days after it was made, the asserted insolence of Talent and Dyer. In the light of the respondent's announcement of the new wage schedules on July 28 in such a way as to discredit the Union 11 and its letter to Howard of July 30 indicating its reluctance to meet with representatives of its employees' choice, we find that the claimed insolence of Talent and Dyer was seized upon by the respondent purely because it afforded an excuse for not complying with the agreement of July 21 and thus further avoided collective bargaining with the Union. The evidence just as clearly reveals that the respondent did not enter into the agreement of September 30 with the intention of com- plying therewith but, on the contrary, did so purely for the purpose of securing a dismissal of the charges pending before the Board with no intention of carrying on collective bargaining with the Union. This is conclusively shown by Mitchell's own testimony to the effect that, notwithstanding the provision contained in the agreement providing for recognition of the Union as the exclusive bargaining representative of the employees, he, at the time of entering into said agreement, in- tended to have only one more meeting with the Union to satisfy a promise he had made to Davies. This testimony of Mitchell also serves to discredit his further testimony, noted above, that he acted upon the advice of counsel, received between October 23 and November t3, in refusing to recognize the Union on the latter date, since it indi- cates that Mitchell had decided to pursue the course which he did as early as September 30. Also indicative of such an intention is the respondent's failure to reinstate, pursuant to the terms of the agree- ment, two of the employees who seek reinstatement in the present 10McQuay-Norris Mfg. Co. v. N. L. R. B., 116 F. (2d) 748 (C. C. A. 7) enf'g Matter of McQuay-Norris Manufacturing Company and United Automobile Workers of America, Local No. 226, 21 N. L. It. B. 709. • u Cf. National Labor Relations Board v. Whittier Mills Company, et al ., 111 F (2d) 474 (C. C. A. 5), enf g Matter of `Whittier Mills Company et al. and Textile Workers Organizing Committee, 5 N. L R B 457; Matter of Wilson & Co, Inc., and United Pack- inghouse Workers L. I. Union No. 51, 19 N. L. It. B. 990 , enf'd Wilson & Co v. N L. R. B., 115 F. (2d) 759 (C. C. A. 8). 0 GOLDEN TURKEY MINING COMPANY 771 case and its disapproval on October 29 of the personnel of the Union's grievance committee, thereby showing once more, as it had following the July 21 agreement, its reluctance to meet with the representatives of its employees' free choice. Thus it is clear that the respondent refused to bargain with the Union beginning on June 27, 1939, the date when it first refused to grant the Union exclusive recognition, and continued in such refusal by failing to comply with the agreements of July 21 and September 30, by meeting with the Union on October 23 merely as a formality for the purpose of satisfying a promise made to Davies, by rejecting the Union's grievance committee on October 29, and finally, after the Union's majority representation had been proved and the respondent had agreed to recognize it as such representative, again demanding that the Union prove its status as such representative. Nor may the respondent assert the Union's alleged loss of a majority as a reason for refusing to bargain with it on November 13. As noted above, the document upon which the respondent relies in support of this position was circulated among and signed by the employees early in August 1939, approximately 2 months after the first attempt on the part of the Union to bargain collectively with the respondent. During those 2 months and thereafter the respondent by various means flagrantly evaded its duty to bargain collectively with the Union. Under these circumstances, the Union's loss of majority status, if such there was, was the clear and inevitable result of the respondent's unfair labor practices and we so find. Such withdrawals from the Union as occurred were clearly not the voluntary acts of the employees who signed the aforementioned document ' We find that on June 27, 1939, and at all times thereafter, the re- spondent refused to bargain collectively with the Union as the ex- clusive representative of its employees in the appropriate unit, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. f B. Discrimination in, regard to hire and tenure of employment J. F. McCallum had originally gone to work for the respondent on June 15 or 16, 1939, having been hired by Simmons, the mine foreman. 22 International Association of Machinists v. National Labor Relations Board, 311 U. S. 72, aff'g 110 F. (2d) 29 (C. A. for D. C) enf'g Matter of The Herrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621; National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U. S. 318, rev'g Matter of Bradford Dyeing Association (U. S.'A.) (a corporation) and Textile Workers' Organizing Committee of the C. 1. 0.; 4 N. L. R. B. 604; Windsor Manufacturing Co v. National Labor Relations Board, 118 F. (2d) 494 (C. C. A. 3) enf'g Matter of John J. Oughton, Bertram E.7Oughton, and Robert B. Oughton, Individuals and Co- partners trading as the Windsor Manufacturing Company and Textile Workers' Organizing Committee (C. 1. 0.) 20 N. L. R. B. 301. 772 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to McCallum's uncontradicted testimony, at the time that he applied for work he was asked by Simmons whether he belonged to the Union, to which he replied in the negative. Simmons told him to come down to the mine to see Mitchell, who likewise asked whether he belonged to or intended joining a union. McCallum again re- sponded in the negative. This is likewise undenied. He obtained a job as a miner and worked until June 28 or 29. A few days later Simmons told him that it looked as though the respondent was going to sign a contract with the Union and that he (McCallum) had better join. At the time of his lay-off on June 28 or 29, 1939, McCallum was told by Simmons that the Extension was being closed and the men there were being given work in the Turkey Mine; and that he would be one of the first to get a job when the Extension was opened. Within a period of a week or two after the lay-off, McCallum returned to the mine to ask about the possibility of going back to work. He was told that he would probably be rehired within a week or so; at that time he returned and was again informed that he would shortly be taken back to work. Some time during the middle of July he returned again and went down into the mine to see Simmons; he waited on the lower level for Simmons to come up. The uncontradicted testimony of McCallum with respect to his conversation with Simmons at this time is as follows : Mr. Simmons came up and it seemed like he was mad. I don't know why. But he turned and walked off-we walked off to ourselves and I got everything in the world but a first class cussing. He told me that he had been double-crossed. I had been a double-crosser and a liar and everything else. He said I had joined the union and reports come to him that I was one of the ringleaders and that I was doing all I could against the mine. During the meantime, I had signed some complaint with a Labor • Board man. Really it wasn't a complaint, as I figure it. It was nothing but just straight facts 13 , Later in the same conversation, Simmons accused McCallum of associating with John Talent, the president of the Union, and stated that by reason of this association McCallum could no longer work for the Company. McCallum then filed a charge with the Board and was one of the persons who was to be placed upon a preferential list by the settlement of September 30, 1939. A day or two before the settlement, Gordon Ray, a shift boss working under Simmons, came to the place where McCallum was working, painting a house, is Simmons, the mine foreman who succeeded Groves, one of the complainants, did not testify. It appears from the record that he was in Mexico at the time of the hearing: No request was made to take his testimony at a subsequent time, either by deposition or otherwise. GOLDEN TURKEY MINING COMPANY 773 and told him that he could return to the mine as a mucker. At this point the testimony of Ray and McCallum is in conflict. McCallum's testimony is that he was simply offered a job as mucker which he refused. Ray's story is that he told McCallum that he could return as a mucker and then go to work as a miner within a few days thereafter; that during the period that he worked as a mucker, however, he would receive a miner's wage. It is unnecessary, how- ever, to resolve the question of whether or not McCallum was in fact offered a job and refused it, because the settlement agreement' of September 30 provided that he was to return to work as a miner. The settlement agreement was signed on September 30, 1939, which was a Saturday. On the following Monday, pursuant to the settle- ment agreement, McCallum reported for work, and, after a short conversation with 'Mitchell, talked to Simmons, Mitchell having told him to see Simmons and tell him that he was ready for work. McCallum met Simmons in the road. Simmons asked, "What in hell are you doing out here?" McCallum replied that be was reporting back to work in accordance with the settlement agreement. Simmons stated that McCallum would not go to work, saying, "I offered you a job and you wouldn't have it. Now you get off the property. You needn't come back here at all." - It seems clear that Simmons'. curt refusal to put McCallum back to work is not explained by Gordon Ray's testimony that, on behalf of Simmons, he had offered McCallum a position as a mucker at miner's wages and then as a miner. Mitchell testified that when he signed the settlement agreement, he did not know that McCallum had been offered a job and had refused it. Clearly, if the respondent had been, acting in good faith with respect to McCallum it could have very easily cleared up the misunderstanding, if any existed, when he reported back to work. Mitchell testified that there were vacancies available for McCallum after September 30. Clearly, if the respondent were seriously intending to comply with the agree- ment of September 30, it would have offered McCallum a job when he appeared on the following Monday. The respondent's contention that McCallum had used somewhat abusive language, as reported by Ray to Simmons and then to Mitchell," is not persuasive. Even if McCallum had complained to Ray of the fact that he had not been treated fairly, this alone would not have been justification for a repudiation 'of the agreement on the part of the respondent. McCallum had, in fact, been subject to the respondent's unfair labor practices, and it was not unnatural that he complained of the treat- 14 Mitchell spoke to Simmons on Monday after he had talked to McCallum and was then advised by. Simmons of the Ray-McCallum conversation . Mitchell then decided that McCallum would not be offered a job and subsequently so advised McCallum. 451269-42-vol. 31-50 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment received from the various officials of the respondent. Simmons' refusal to put him back to work when he came back to the mine is clearly attributable to McCallum's activities as a union member, referred to by Simmons in July and as to which he was questioned by Simmons and Mitchell prior to his hiring, and his subsequent filing of charges with the Board. We find that the respondent discriminated with respect to the hire and tenure of employment of J. F. McCallum by refusing him reinstatement on October 2, 1939, and thereafter, thereby discourag- ing membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Nick Badovinatz, also known as Nick • Badovnic, had come to work at the same time as McCallum. He too was employed as a miner on June 16, 1939, and was laid off on June 29, at the time of the partial shut-down. Several years prior thereto, he had also worked for the respondent. On or about October 6, 1939, he received a telephone call to return to work.15 At that time, Badovinatz had a broken hand and was unable to go to work. Thereafter, when his hand was healed, he applied for work and was told by Simmons that there was little chance of his being hired because the respondent had a full complement of men. From time to time thereafter, Badovinatz returned to the mine asking for work. In February 1940 he again saw Simmons, who told him that they would call him as soon as there was an opening. In the latter part of February Badovinatz returned again, at which time, according to his uncon- ft,adicted testimony, new men were working in the mine. Early in March Badovinatz went back again with one Tony Brose to apply for work and the following occurred. According to the testimony of Badovinatz, Brose said, "Nick, I am going to go with you. I am sure Mr. Mitchell is going to give you a job." So I went up - with him and Tony Brose talked with Mr. Mitchell. He was speaking with him for a half an hour or so. He said, "Well, Tony, I am sorry, I haven't got no job, Nick." So Tony said, "Well, so long" to Mr. Mitchell and "Is Mrs. Mitchell home?" He said, "Yes, you can go up and see her." So we went up to the house and Tony knocked on the, door and she came out. She said, "Hello, Tony, hello pal," and everything like that. "Why don't you come back to work for us again, you're a good man?" I said, "How about me, Mrs. Mitchell, I look for a job." 15 This was likewise pursuant to the settlement agreement of September 30, charges having been previously filed with the Board on his behalf. Q GOLDEN TURKEY MINING COMPANY 775 She said, "Oh , I don't like you." I said, "Why?" She said, "You sign a petition against us." o So after that I never go back again to look for a job because I know for a few of the boys there is no use, they won't hire them. The testimony of Badovinatz was not contradicted by the testimony of Mitchell 16 Mrs. Mitchell did not testify. It appears from the rec- ord that the office of the mine is located in the front room of the' Mitchell home and that Mrs. Mitchell frequently gave messages from Mr. Mitchell to the employees and vice versa . Thus Mrs. Mitchell was aware of the affairs of the respondent and there can be little doubt but that the remarks she made to Badovinatz were interpreted by him, and properly so, as an expression made on behalf of the respondent. This is particularly so in view of the fact that Badovinatz had been relatively active in attempting to obtain members for the Union. Un- der all the circumstances , however, we are of the opinion that the respondent's refusal to reinstate Badovinatz was based upon his union activities. We find that the respondent discriminated with respect to the hire and tenure of employment of Nick Badovinatz by refusing him rein- statement in February 1940 and thereafter, thereby discouraging membership in the Union and interfering with, restraining , and coerc- ing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Fred Bratz had worked as a mucker in the mine , having been em- ployed prior to December 1, 1939. On December 24, 1939, he and six others reported for work on the 4 o'clock shift , arriving at about 3: 30 p. in. They drove to the mine at Cordes from Mayer , Arizona, a distance of some 7 or 8 miles. It is undisputed that some of the men in the car had been drinking rather heavily .; It is clear that when they arrived at the mine entrance, all the men in the car were in a somewhat excited condition , either from the effects of alcoholic stimu- lants or otherwise . Bratz's testimony is that when the men arrived at the mine, the others in the car went over to see the shift boss, Leonard Alger, and requested that they be permitted to take time off because of their condition ; that Alger said that he would take it up with Simmons; that thereafter Simmons came up out of the mine and , approaching the group, pointed at Bratz and said, "You're drunk." Bratz denied this accusation , whereupon Simmons told him to "go down and get your God damn time" and thereafter Simmons said , "You all go up and get your God damned time ." Simmons then suddenly pointed out 16 Mitchell gave no testimony relative to Badovinatz 's efforts to obtain reemployment. He testified, however, that he had no objections to giving Badovinatz reemployment but that he did not think him physically qualified to do the work. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three of the most drunken members of the party, Hubbs, Douglas, and Hernandez, and said, "You, you and you, you will go to work." Bratz protested against this, calling Simmons' attention to the fact that it was illegal to let a drunken man go to work. Simmons then, according to Bratz, became profanely abusive and again told Bratz to get his "time." Although Simmons did not testify, it rather clearly appears from the testimony of the others who were present at the time that the foregoing testimony of Bratz is not in accord with the facts. It seems clear that the men did appear at the mine entrance in a some- what turbulent, if not entirely alcoholic, condition. It is not unrea- sonable to suppose that Simmons, coming up out of the mine and seeing a group of men in no condition to go to work, should have become somewhat irritated. This is particularly true in view of the fact that it would have been necessary that some of the men then working con- tinue on overtime. When it is further considered that this was Christmas Eve, it can be seen that Simmons' reaction to the appear- ance of the group as a whole was not entirely abnormal. It further appears that when some of the men in the group stated that they wished to go to work and that they could do the work, Simmons pulled out his watch and told them that if they could get into their clothes in 10 minutes, by the time that the shift changed, they could go to work, and that it was at this time that Hubbs, Douglas, and Hernandez were told that they could go to work. It further appears that Bratz was in a very excited state and protested violently at being included in the discharge of all the others, particularly so since the charge was made against him that he was drunk. At the hearing Bratz denied having been drunk and denied further that he had been drinking, and we credit his denial as did the Trial Examiner. The only testimony that he had a drink at all was given by Hernandez who, according to his own testimony, had imbibed quite freely on the trip to the mine. However, if Bratz had donned his work clothes along with Hubbs, Douglas, and Hernandez, he would probably have been permitted to go to work that evening. Even considering the open antagonism of Simmons towards the Union, there is in the Bratz case nothing more than a suspicion that Simmons' discharge of him was actuated by Bratz's union activities. On the record as a whole, we are not con- vinced that Bratz was discharged or refused reinstatement because of his union activities and shall dismiss the complaint in so far as it so alleges. J, T. Groves. The complaint alleges that Groves was discharged on August 28, 1939, by reason of his activities in behalf of the Union. Groves was employed by the respondent from May 28, 1934, until August 1939. He worked as mill construction foreman for about 21/2 months and then operated the mill for approximately a year. There- 0 ,GOLDEN TURKEY MINING COMPANY 777 after, he became foreman of the underground operation of the Golden Turkey Mine. He remained as mine foreman until May 1939, at which time he became construction superintendent at the Golden Belt Mill. Groves originally joined the Union about August 1, 1937, shortly after the inception of organizational activities. In the early part of December 1937, Mitchell heard that Groves had joined the Union. He spoke to Groves about the matter, testifying, "I said that I and the Company wanted to maintain an absolutely neutral position in the whole labor picture and that as foreman, I didn't see how lie could maintain and carry out that policy if he was a member." Groves had not yet paid any dues and explained to Mitchell, accord- ing to Groves' testimony, which we credit, as did the Trial Exam- iner, that it would be necessary for him to pay up his dues before he could get a withdrawal card. Mitchell thereupon told him that a withdrawal card was not sufficient but that it was necessary that Groves resign from the Union. Groves, however, declined to dis- avow his interest in the Union publicly and nothing further was said about the Union to Groves by Mitchell until the spring of 1939, at which time there was a resurgence of union activity. However, on December 27, 1937, Mitchell wrote the Regional Director for the Twenty-first Region, Towne J. Nylander, inquiring if it would be considered an unfair labor practice if these fore- men 17 were asked to either resign from the Union or resign from the Company. My feeling is that they are a part of management and while the Company prefers to operate under the "open shop" principle the foremen cannot properly belong to any union. Incidentally I believe the foremen are not al- lowed to speak at union meetings or hold office but they are a great asset to the union in that the employees are given to understand that they cannot expect to hold their jobs unless they joined the Union. On January 8, 1938, Mitchell received a reply from ' Nylander in which he was advised that in the latter's opinion foremen as well as other employees were entitled to join unions if they saw fit; and that this was a matter between the particular employee and the union that he wished to join. Mitchell testified that in reliance upon Nylander's advice, he did nothing further about either Groves or Knight. In May 1939, at the time the organizing efforts among the men became quite active, Groves was transferred from the mine to the Golden Belt construction work. Thereafter, when this work was 17 It is undisputed that Groves and Knight argued with Mitchell that it would be advantageous to the Company to have them remain in the Union inasmuch as their par- ticipation would tend to keep the Union on a conservative basis. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded, Groves was discharged on either August 25 or 28, there being some uncertainty as to the exact date. At the time, Groves was informed that he was discharged because there was no further work for him to do, and Mitchell first testified that the reason for his discharge was, Well, they had completed the rebuilding of the Extension mill and we had all of the equipment on the property for a second unit in the Turkey mill which, at the time we transferred Groves to construction work, we expected to go right through and build that second unit. As I say, we had all the equipment there and paid for the job, but toward the end of August for financial reasons and other reasons we felt that we couldn't go ahead with the second unit in the mill so there was no more construction work and Groves was paid off. Thereafter, in the latter part of September, Field Examiner Davies from the Los Angeles Regional Office had several conversations with Mitchell as part of his efforts to settle the various charges that had been filed against the respondent. During one of these conver- sations, Mitchell told Davies about the letter which he had received from Nylander early in 1938. Davies replied that he would not have given such advice to Mitchell, but to the contrary, would have advised him that if his foremen did not carry out his orders he was at liberty to discharge them. Subsequently, on October 9, 1939, in a conversation between Mitchell, Regional Director Spreckles of the Twenty-first Region, and Davies, Davies repeated the advice he had previously given to Mitchell and, according to Mitchell's uncon- tradicted testimony, Spreckles "was in sympathy" with the point of view expressed by Davies. However, shortly prior to the hearing herein, Mitchell wrote to Davis, who was then stationed in the Seattle office, among other things stating that, acting on Davies' advice, he had "let both of the foremen go." 18 Upon being questioned as to the apparent inconsistency in the reasons for discharging Groves, Mitchell testified that while it was true that he had discharged Groves because there was no work for him to do at the time of this discharge, he had transferred him from his position as mine foreman to that of con- struction superintendent for the same reason that he had later dis- charged Chester Knight-his failure to observe the respondent's desires concerning union matters and, specifically, his failure to maintain a neutral attitude. The question is then presented as to what Mitchell meant by a neutral attitude. It has been previously shown that Mitchell's attitude and activities in connection with the Union were one of antagonism and open hostility, and we have found 18 It is clear that "both" referred to Groves and Knight. GOLDEN TURKEY MINING COMPANY 779 that he refused to bargain with the Union. It is not without sig- nificance that Simmons, who succeeded Groves as mine foreman engaged in anti-union activities, activities which Mitchell must have known about, especially since they were the subject, to some extent, of the disputes sought to be settled by the agreement of September 30. The respondent's protestations of desired neutrality are incon- sistent with and rebutted by its. demonstrated hostility toward the Union. Upon the basis of the foregoing we are of the opinion, as was the Trial Examiner, that what Mitchell meant by neutral atti- tude in respect to the Union, at a time when there was no competing union in the mine, was that the foremen aid him in his activities to break up the Union. It does not lie with the employer to advise his employees who happen to be foremen that they may not join unions or to discharge them if they do join, particularly where such posi- tion is taken as part of a definitely anti-union campaign. The respondent's bad faith in this connection is evidenced by Mitchell's failure at any time prior to this hearing to divulge to Groves the true reasons for his transfer from the mine to construction work on the Golden Belt, the termination of which led to his discharge, but put his discharge on the basis that there was no longer any construc- tion work for him to do. Mitchell, in transferring or discharging Groves, clearly could not have been relying upon Davies' advice, which was given on October 9, 1939, concurred in by Regional Direc- tor Spreckles of the Twenty-first Region, in view of the fact that such advice was received after Groves' discharge. Further, on Octo- ber 9, 1939, so far as the record shows, Mitchell did not tell Davies and Spreckles his claimed reason for discharging Groves. Mitchell's testimony shows quite clearly that Groves was moved out of the mine in order to place him in work from which his services could be terminated. We find that the respondent discriminated with respect to the hire and tenure of employment of J. T. Groves by transferring him from the position of mine foreman to the position of construction foreman in May 1939 and by discharging him from the latter position on August 28, 1939, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Chester A. Knight was the mill foreman, having worked for the respondent since 1936. He joined the Union in August 1937 and it iG quite clear from his testimony that he was reasonably active in the affairs of the Union. In fact, it was his testimony as well as Groves' that they both felt that by joining the Union they could keep it conservative. Knight, it appears, was largely instrumental in persuading Groves to join the Union. Knight was discharged on 780 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD October 30, 1939, approximately a month or more after Davies had advised Mitchell that he could properly discharge his foremen who disobeyed instructions to be neutral in union activities. There is no real dispute about the fact that both Knight and Groves were in fact discriminated against because of their affiliations in or activities on behalf of the Union. However, in view of the fact that Mitchell discharged Knight in reliance upon, the advice of Davies, thereafter concurred by Regional Director Spreckels, we do not believe that it would effectuate the policies of the Act to find that Knight's dis- charge constituted a violation of Section- 8 (3) of the Act, although the other facts in hi§ case are substantially similar to those in the case of Groves. We shall therefore order the complaint dismissed as to Knight. 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 respond- ent 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 We have found that the respondent has engaged in certain unfair labor practices. We will order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit. We shall, in consequence, order the respondent to bargain collectively with the Union. . The respondent contends, however, that a majority of the employees have indicated that they no longer desire to be represented by the Union. However, any de- fections from the Union's membership, if such there were, occurred after the respondent had refused to bargain with the Union in viola- tion of the requirements of the Act, and were caused by unfair labor practices and cannot operate to change the employees' freely chosen bargaining representative is 19 See International Association of Machinists V. N. L R. B., 311 U. S. 72, aff'g 110 F. (2d) 29 (C. A. for D. C ) ent'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621; N. L. R. B. v Bradford Dyeing Ass'n, 310 U. S. 318 , rev'g Matter of Bradford Dyeing Association (U. S. A ) (a corporation ) and Textile Workers' Organizing Committee of the C. I. 0, 4 N. L R. B. 604; Windsor Manufacturing Co. v. N. L. R. B., 118 F. (2d) 494 (C. C. A. 3) enf'g Matter of John J. Oughton, at al. and Textile Workers' Organizing Committee (C. 1. 0.) 20 N. L. R. B. 301. GOLDEN TURKEY MINING COMPANY 781 We have found that the respondent has discriminated in regard to the hire and tenure of employment of J. T. Groves, J. F. McCallum, and Nick Badovinatz. We shall order the respondent to offer to McCallum and Badovinatz immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of the respondent's discrimination against them by payment to each of a sum of money equal to that which he normally would have earned as wages during the period from the date of the respondent's dis- crimination against him to the date of the offer of reinstatement, less his net earnings 20 during said period. Since we have found that Groves was discriminatorily transferred from the position of mine foreman to that of construction superin- tendent, we shall order the respondent to offer him immediate and full reinstatement to his former position as mine foreman or sub- stantially equivalent position, without prejudice to his seniority and other rights and privileges. We shall further order the respondent to make Groves whole for any loss of pay he has suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date of Davies' erroneous advice and from the date of this Decision and Order to the date of the offer of reinstatement'21 less his net earnings 22 during said periods. 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, Local No. 410, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees of the respondent at its mine and mill at Cordes, Arizona, excluding office and super- visory employees and the camp cook, at all times material herein m 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 the unlawful discrimination against him and the consequent necessity of his seeking employment else- where. 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 from work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. National Labor Relations Board, 311 U. S. 7. ' 2L Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L R B. 760. ^ See footnote 20, supra. 782 DECISIONS Or NATIONAL LABOR RELATIONS BOARD constituted, and .they now constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Union of Mine, Mill and Smelter Workers, Local No. 410, was on June 20, 1939, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on June 27, 1939, and at all times thereafter to bargain collectively with International Union of Mine, Mill and Smelter Workers, Local No. 410, as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 0. By discriminating in regard to the hire and tenure of employ- ment of J. T. Groves,. J. F: McCallum, and Nick Badovinatz, there- by discouraging membership in International Union of Mine, Mill and Smelter Workers, Local No. 410, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. 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. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning,of Section 2 (6) and (7) of the Act. 8. The respondent has not discriminated in regard to the hire and tenure of employment of Fred Bratz and Chester A. Knight within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c)-of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent Golden Turkey Mining Company, Cordes, Arizona. and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Union of Mine, Mill and Smelter Workers,- Local No. 410, as the exclusive representative of its production and maintenance employees at its mine and mill at Cordes, Arizona, excluding office and supervisory employees and the camp cook, in respect to rates of pay, wages, hours of employment, and other conditions of employment; GOLDEN TURKEY MINING COMPANY 783 (b) Discouraging membership in International Union of Mine, Mill and Smelter Workers, Local No. 410, or in any other labor or- ganization of its employees, by transferring, discharging, or refusing to reinstate any of its employees, or in any other manner discriminat- ing in regard to their hire or tenure of employment, or any term or condition of their employment ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the 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) Upon request bargain collectively with International Union of Mine, Mill and Smelter Workers, Local No. 410, as the exclusive representative of its 'production and maintenance employees at its mine and mill at Cordes, Arizona, excluding office and supervisory employees and the camp cook, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to F. W. McCallum and Nick Badovinatz immediate and full reinstatement to their former or to substantially equivalent posi- tions without prejudice to their seniority or other rights or privileges; (c) Make whole F. W. McCallum and Nick Badovinatz for any loss of pay they have suflered by reason of the respondent's discrimi- nation against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from the date of such discrimination to the date of the offer of reinstatement, less his net earnings 23 during such period; ('d) Offer to J. T. Groves immediate and full reinstatement to his former position as mine foreman, or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (e) Make whole J. T. Groves for any loss of pay he has suffered by reason of his discharge by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date of Davies' erroneous advice and from the date of this Decision and Order to the date of the offer of reinstatement, less his net earnings 24 during said periods ; (f) Post immediately in conspicuous places on the respondent's premises, and maintain for a period of 'at least sixty (60) consecutive days from'the date of posting, notices to its employees' stating: (1) -1 See footnote 20, supra. 24 See footnote 20, supra. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) 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 International Union of Mine, Mill and Smelter Workers, Local No. 410, and that the respondent will not discriminate against any employee because of membership or activity in that organization ; (g) Notify the Regional Director for the Twenty-second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as'it alleges that the respondent engaged in unfair labor practices within the meaning of Section 8 (3) of the Act in discharging Fred Bratz and Chester A. Knight. MR. EDWIN S. SMITH, dissenting in part : I dissent from the finding of the majority that the discharge of Knight was not a violation of Section 8 (3) of the Act. It is clear that by discharging Knight the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging member- ship in the Uiiion. I do not believe that an agent of the Board has either the authority or the power to place such discrimination outside the purview of the Act.25 Nor do I believe that it effectuates the poli- cies of the Act to leave the victim of such discrimination remediless. It is my opinion that the respondent acted at its peril upon the advice which it received and, if the advice proved to be incorrect, as it did, the respondent must take the consequences. Moreover, since Groves was discriminated against for the same reason as Knight, and contrary to Nylander's advice, it seems probable that Knight would have been discharged by the respondent irrespective of whether or not Davies' more favorable advice had been given. "See Matter of the Duffy Silk Company and Silk Throwers Union, Local 81, Textile Workers Union of America, 19 N L R B. 37.