Calera Mining Co.

National Labor Relations Board - Board Decisions

Jan 3, 1952

97 N.L.R.B. 950 (N.L.R.B. 1952)

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Amalgamated Association of Street, Electric Railway and Motor Coach
Employees of America, Division 1214, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Wil-
liam Cole, Bennie Di Rito, George Hopkins, and Harry Taylor, and thereby dis-
couraging membership in Amalgamated Association of Street, Electric Railway
and Motor Coach Employees of America, Division 1214, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (3) 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 Respondents have not violated Section 8 (a) (3) of the Act by dis-
charging William Miller and thereafter refusing to reinstate him.
[Recommended Order omitted from publication in this volume.]
CALERA MINING COMPANY and INTERNATIONAL UNION OF MINE, MILL
& SMELTER WORKERS and ROBERT E. STRONG. Cases Nos. 19-CA-361
and 19-CA362. January 3,195,9
Decision and Order
On June 4, 1951, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent had engaged in and was engaging in cer-
tain unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Respond-
ent filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations-Act, the Board has delegated its powers in connection with
this proceeding to a three member panel [Chairman Herzog and
Members Murdock and Styles].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the brief, and the entire record in
the case and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the following additions and
modifications.
97 NLRB No. 98.
CALERA MINING COMPANY 951
1. In excepting to the Trial Examiner's commerce findings, the
Respondent contends, inter alia, that only those facts concerning its
operations before the commission of the alleged unfair labor prac-
tice in September 1950, and the issuance of the complaint on February
5, 1951, are relevant. Limited by this approach, the Respondent
argues, the Trial Examiner should have found that the Board lacked
jurisdiction under the Act over the Respondent's activities, and that
the Respondent's operations were confined to essentially local building
activities whose interstate aspects were below the Board's standards
for the assertion of jurisdiction.
The Respondent, a mining company, was engaged in September
1950 in the construction of plant facilities and a town site to provide
housing accomodations for its employees at or near Forney, Idaho.
At that time foundations for several plant buildings were being in-
stalled. Mining operations had not yet begun. The Respondent
indicated that it expected to start mining in the summer of 1951 and
anticipated operating at full scale by January 1, 1952, with a daily
output of 1,000 tons of ores consisting mainly of copper and cobalt.
Between the spring of 1949 and November 1950 the Respondent
purchased building materials and machinery valued at $500,p00 to
$1,000,000, The Respondent asserts that cement and sand, included
in these purchases, were produced- and procured within the State.
Without limiting other materials purchased by it to the category of
locally produced items, the Respondent conceded only that reinforcing
steel and machinery came to it from points outside the State.
At the time of the hearing the Respondent's monthly purchases
amounted to approximately $100,000. Of this sum more than half
represents purchases of goods originating outside the State. The
Respondent was then also constructing a smelter near Salt Lake City,
Utah, to which all cobalt to be mined will be shipped for processing.,-
Although the record permits no specific valuation of the goods pro-
cured by the Respondent through the channels of interstate commerce
when the alleged unfair labor practice occurred or when the complaint
was issued, we are satisfied that the total value of all reinforcing steel
and machinery purchased by the Respondent at these times is sufficient
to confer jurisdiction on the Board 2 Clearly the Respondent's exten-
sive construction operations simultaneously conducted in two States
and its substantial interstate purchases at the time of the hearing were
sufficient to bring its activities at such time within the jurisdictional
purview of the Act.
'Copper mined by the Respondent will be shipped to the Garfield smelter in Utah for
processing
2 N. L. R. $. v. Falnblatt , 306 U. S. 601 . Our finding in this respect is not to be con-
strued as acceptance of the validity of the Respondent ' s above-asserted theory.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner, by projecting the Respondent's monthly out-
of-State purchases, current at the time of the hearing, for a 12-month
period, concluded that the volume of interstate inflow met the Board's
standard for asserting jurisdictions The Respondent contends, how-
ever, that the foregoing data, because it reflects operations subsequent
to the commission of the alleged unfair labor practice or the issuance
of the complaint, is not relevant and should not have been considered.
Like the Trial Examiner we reject this contention, and hold that the
scope and extent of the Respondent's operations, as evidenced by the
foregoing data, are relevant' to the policy considerations involved in
the assertion of the Board's jurisdiction. We are, moreover, satisfied
that the Respondent's activities, at all times in question, substantially
affected and continue to affect national defense.4 The record reveals
-that the Respondent's mine is one of the principal sources of cobalt
in this country. To illustrate its vital defense uses, the Respondent's
manager testified that cobalt is used in magnets, as a catalyst for oil
production, and as an ingredient of high temperature alloys such as
those found in jet airplane engines. The defense uses of copper are
Sufficiently well known to obviate comments
We, reject the Respondent's argument that, because commercial
shipments of ores had not yet been made, its activities at all times
material to this case involved nothing more than local construction.
The Respondent's construction activities preparatory to production
are as intimately related to the ultimate purpose of its business and
its effect on national defense as are the mining and shipment of the
end products of its enterprises
We find that the Respondent's activities at all times relevant and
material herein affect commerce within the meaning of the Act, and
that the policies of the Act will be effectuated by the assertion of
jurisdiction in this case.
8 The Board , in Federal Dairy Co., Inc., 91 NLRB 638, enunciated the rule that jurisdic-
tion would be asserted in cases where an employer 's direct inflow amounts to $500,000
annually.
* In Westport Moving and Storage Company , 91 NLRB 902, the Board declared that it
would assert jurisdiction in all cases where the employer's operations substantially affect
national defense. The Board recently asserted jurisdiction over the Respondent for this
and other reasons in a representation case. Case No. 19-RC-835. -
We regard without merit the Respondent 's contention that the failure of the complaint
to specifically allege that the Respondent 's activities affect national defense precludes our
consideration of that circumstance as a jurisdictional element. The general allegation
in the complaint that the Respondent is engaged in commerce within the meaning of the
Act provides sufficient basis for the consideration of all factors relevant thereto.
6 We take notice of the inclusion of cobalt and copper in the list of strategic and critical
materials for stock piling issued February 9, 1951, by the Department of Defense, MB
Order No. 51-29, pursuant to Section 2 (9) of Public Law 520, 79th Congress.
6 Cf. Ozark Dam Constructors , 77 NLRB 1136, wherein the Board , in asserting jurisdic-
tion over employers jointly engaged in constructing a dam, relied in part on the fact
that a work stoppage would halt construction of the dam and "would delay the produc-
tion of electricity which will probably be sold in interstate commerce."
CALERA MINING COMPANY 953
2. The Respondent also excepts to the finding that Robert E. Strong
was discriminatorily discharged in violation of Section 8 (a) (3) of
the Act. The Trial Examiner's finding was based upon his conclusion
from the evidence that the Respondent discharged Strong because of
union activities in which he had been engaged while working in the
past at the Holden Mine of the Howe Sound Company, the Respond-
ent's parent corporation, and the Respondent's apprehension that if
Strong were to remain in its employ he would engage in the same
type of activity at its mine. The Respondent denied such discrimi-
natory motive for the discharge, and alleged affirmatively that the
discharge resulted from Strong's•breach of the Respondent's working
rules.
Briefly, the revelant facts are these. Strong had been employed
by the Howe Sound Company at its Holden Mine from February
1945 to May 1946 when, after his wife's death, he voluntarily left.
In September 1945 he was elected president of the Holden local and
in this capacity vigorously conducted his union duties thereby engen-
dering the animosity of Holden Officials Curzon, Bley, and Douglas,
then the Holden manager, mine foreman, and superintendent,
respectively, as is more specifically detailed below.
In August 1950 Strong was hired by the Respondent with the
approval of the afore-mentioned Douglas, who was now the Respond-
ent's manager. On September 3 or 4, 1950, Strong was discharged.
At the time of this event a party of executives and officials of the Howe
Sound Company and the Respondent, including Curzon and Bley,7
were visiting the Respondent's mine. According to Strong's testimony
he was discharged on September 4 after he had concluded his work
that day. He testified that he received his notice from his foreman,
Thomas, who gave no explanation for the discharge other than indicat-
ing that it was prompted by Curzon and Bley. Strong's testimony
in its essential parts was corroborated by Clayton C. George, one of
the Respondent's foremen at the time of the discharge, by George's
wife, and by Albert W. Robbins, an employee of the Respondent. The
Respondent, on the other hand, presented evidence that Strong had
reported "bleary-eyed" and late for work on September 3, that he
reportedly had been drinking before coming to work, and had cut
his shift and had gone to sleep in his bunk at noon in violation of a
company rule, and was discharged for these reasons.
In crediting the General Counsel's witnesses' version of the dis-
charge and rejecting the Respondent's evidence, the Trial Examiner
relied upon the strong corroboration of Strong's testimony 8 as opposed
7 Bley at this time was the Holden superintendent.
8 In specifically crediting Strong's testimony the Trial Examiner took into account his
criminal record. He found that Strong had rehabilitated himself, and , in view of his
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the contradictory and generally unreliable testimony of the Re-
spondent's witnesses as explicated in the Intermediate Report. An
important determinative factor. was the spontaneous admission by
Douglas near the end of his cross-examination by the General Counsel,
that Curzon, directly referring to Strong, had remarked to Douglas
at the very time when, according to Douglas' earlier testimony Strong
was asleep in his bunk, "there's a troublemaker, and eventually he will
make trouble for you." Strong, in his rebuttal testimony, indicated
that at about the time of this remark Curzon had seen him riding
on one of the Respondent's trucks that passed by the party of execu-
tives and officials which included Curzon and Douglas, and that Curzon
had waved at or pointed to him in apparent recognition. The Trial
Examiner regarded this evidence as conclusive proof that Strong had
not cut shift and gone to sleep as the Respondent had alleged.
Douglas' testimony thus not only seriously affected his credibility,
but gave vital support to the General Counsel's version of the dis-
charge.
Like the Trial Examiner we are satisfied that Strong was not dis-
charged for any of the reasons advanced by the Respondent .9 The
fact that he reported late for work on September 3, as the Trial
Examiner points out, was regarded under the circumstances as ex-
cusable by the Respondent, and no action was taken against the two
other employees who were responsible for Strong's tardiness and who,
like himself, came to work late. The record contains no evidence
whatever to indicate that Strong had been drinking before he came
to work, and no foundation exists for any report that he had been
drinking. For the reasons assigned by the Trial Examiner, we find
that Strong had not cut shift on September 3, but had worked that
entire day.
With the elimination of the Respondent' s reasons for Strong's
discharge, the remaining inquiry is directed to the Respondent's real
reason for the discharge, and whether that reason is violative of the
Act. As noted above, the General Counsel contended that Strong's
Bunion leadership at Holden was responsible for the Respondent's
precipitate action in discharging him. The Respondent contended
that Strong's conduct at Holden, apart from his union activities,
straightforward and convincing testimony , that his record should not have a discrediting
effect. We shall abide by this as well as all other credible resolutions by the Trial Exam-
iner, for in settling conflicts in the testimony of witnesses he enjoyed the advantage of
observing their demeanor , and the clear preponderance of all the relevant evidence does
not convince us that his resolutions were incorrect . Standard Dry Wall Products, Inc.,
91 NLRB 544, enf. 188 F. 2d 363 (C. A. 3).
' As the Trial Examiner 's findings are based on a preponderance of the evidence in the
record considered as a whole , we shall not disturb these findings. Universal Camera
Corp . v. N. L. R. B., 340 U. S. 474.
CALERA MINING COMPANY 955
caused it to regard him as a reputed troublemaker whom it properly
discharged when he broke the probationary terms under which he was
assertedly hired. A fair evaluation of the Respondent's true motiva-
tion for the discharge therefore requires a consideration of Strong's
record at Holden.
Strong's union activities while president of the Holden local are set
out at length in the Intermediate Report. The hostility on the part
of the Holden officials incurred by Strong because of the scope and
vigor of these activities is amply demonstrated by the remark of Bley
at a -union-management conference during the January 1946 sympa-
thetic "sugar strike" that "if [Strong] didn't stick [his] neck out so
damned far [he] would get along better"; by Strong's unsuccessful
attempts in 1946 to obtain reemployment at a time when Holden was
advertising for and hiring new employees; and by the comment by
Curzon to Strong in April 1947 that Strong had no "chance to work
for him again. Further indication of hostility by the Holden man-
agement is derived from the testimony of Douglas that Strong had
caused Holden "considerable trouble" by circulating a union petition
for the removal of the company doctor, and that "generally he
[Strong] was a thorn in our sides."
To support its contention that Strong had acquired a reputation at
Holden for being a hot-tempered, troublesome individual, the Re-
spondent relied upon three incidents in which Strong was allegedly
involved, (a) the fight with Foreman Adams at the baseball game,
(b) Strong's insistence that the company furnish a boat to transport
his sick wife to a hospital, and (c) his intrusion at the Christmas party
at the Pearse home. As to the fight with Adams, Strong's explana,
tion of the incident, which the Trial Examiner credited, indicated
that Adams, not Strong, had provoked the fight by calling him in-
sulting and vile names. It is extremely unlikely, as the Trial Exam-
iner observed, that had Strong been deemed at fault, the company
would not have discharged him. The record does not show that he
was even censured or otherwise disciplined. Strong's persistence in
demanding a boat to take his seriously sick wife to a hospital, in our
opinion, could not reasonably have been regarded as a demonstration
of bad temper or troublesomeness. Any show of anger during the
course of his distress in the face of the company doctor's indifference
to the needs and condition of the sick woman, as shown by the record,
was the normal behavior of a husband concerned with his wife's wel-
fare. Nor does the Pearse incident contribute to the Respondent's
claimed estimate of Strong. All that the record shows is that he came
to the Pearse home, where some Holden officials were attending a
Christmas party, to report a fight between employees in a bunkhouse
9567_" DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in which he was not involved, and urged them to take immediate
action. Not only do these facts fail to reflect bad temper or trouble-
someness, but the hospitality accorded Strong at the party belies any
impression that he was regarded as an angry intruder. None of the
foregoing incidents substantiates the Respondent's contention re-
garding Strong's conduct at Holden. In view of the compelling evi-
dence, adverted to above, revealing the resentment of the Holden
officials toward Strong because of some of his union activities, we be-
lieve that the Trial Examiner correctly concluded that their animus
stemmed from these activities and not from any extraneous conduct
by Strong.
In the light of the foregoing, we agree with the Trial Examiner that
when Curzon spoke to Douglas on September 3 and referred to Strong
as a "troublemaker" who would eventually cause trouble, he was neces-
sarily alluding -to Strong's record of union activities at Holden, and
was thereby warning Douglas that Strong would "cause trouble" by
engaging in such activities at the Respondent's mine. Because the
remark was made in the presence of the Respondent's top executives,
including President Sharp, the Trial Examiner's inference is reason-
able that Douglas, having himself approved the hiring of Strong, was
thus exposed to criticism from these executives should Curzon's
prophecy materialize, and that he was motivated by this consideration
to discharge Strong.
In adopting the Trial Examiner's findings we have duly considered
the Respondent's contention and the Chairman's dissent that the Re-
spondent's reasons for Strong's discharge should be accorded validity
in the absence of evidence of union activity by Strong at the Respond-
ent's mine, or that the Respondent was opposed to union activity there.
Although such circumstances are ordinarily regarded by the Board as
elements pointing to lack of a discriminatory motive for a discharge,
it does not necessarily follow that they preclude a finding of discrimi-
nation where, as here, the only reasonable explanation apparent for
the discharge is that the hostility of Holden officials to Strong for his
past union activities, coupled with Curzon's warning to Douglas re-
garding Strong caused Douglas to get rid of him. Moreover, the rec-
ord is not totally lacking in evidence of union activity by Strong
during his short tenure prior to his discharge, for it is established that
Strong had spoken openly in favor of a union to Thomas Sharp, Jr.,
the son of the Respondent's president, who had been employed by the
Respondent up to the time of Strong's discharge. Although the Re-
spondent argues that there was no proof of its knowledge of Strong's
union discussions with Sharp, Jr., we may reasonably assume that such
information came to its attention in view of the close relationship be-
tween Sharp, Jr., and the Respondent's president, especially as the
CALERA MINING COMPANY 957
latter was present at the mine when Strong was discharged . As to the
argument that Douglas , with his knowledge of Strong 's Holden back-
ground , would not have hired him only to discharge him less than a
month later if he were actuated by the discriminatory motive ascribed
to him, we emphasize that Douglas did not act independently in the
matter-it was Curzon 's admonition to Douglas which impelled him to
discharge Strong. This circumstance did not exist when Strong was
hired.
We find on the basis of the entire record that the Respondent dis-
criminatorily discharged Robert E. Strong in violation of Section 8
( a) (3) and 8 ( a) (1) of the Act.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Calera Mining Company,
Forney, Idaho, its officers, agents, successors, and assigns shall :
1. Cease and desist from:
(a) Discouraging membership in International Union of Mine, Mill
& Smelter Workers or in any other labor organization of its employees
by discriminatorily discharging or refusing to reinstate them, or by
discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist International Union of
Mine, Mill & Smelter Workers, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and
all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the
Act,
2., Take the following affirmative action which we find will effectu-
ate the policies of the Act:
(a) Offer to Robert E. Strong immediate and full reinstatement
to his former or substantially equivalent position, without prejudice to
his seniority or other rights or privileges.
(b) Make whole Robert E. Strong, in the manner set forth in that
section of the Intermediate Report entitled "The Remedy," for any
loss he may have suffered by reason of the discrimination against
him.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Upon request make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to analyze the amounts of
back pay due and the right of employment under the terms of this
Order.
(d) Post at its mine at Forney, Idaho, copies of the notice attached
hereto and marked "Appendix A".10 Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by a representative of the Respondent, be
posted by it immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other material.-
(e) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
CHAIRMAN HERZOG, dissenting :
I agree that the Board has and should assert jurisdiction,in this
case. I cannot agree with my colleagues, however, that Strong was
discharged because of his union activities during his former employ-
ment by the Respondent's parent corporation at another mine or
because the Respondent feared that he would organize the employees
at Forney. All the facts in regard to Strong's previous employment
and union activity at Hglden were known to Douglas, Respondent's
manager, when he hired Strong. Strong engaged in no union activi-
ties at Forney which'came to Douglas' attention or could have made
him apprehensive that Strong would organize the Forney operation.
Nor is there any evidence that Douglas or the Respondent was op-
posed to the employees at Forney joining a union if they wished.
Although the reasons assigned by the Respondent for Strong's dis-
charge did not seem valid to the Trial Examiner, in my opinion they
provide a wholly adequate explanation of the discharge, in the ab-
sence of evidence that there was union activity by Strong at Forney
or that the Respondent was opposed to it.
I conclude that the General Counsel has not sustained the burden of
proving that Strong was discharged in violation of Section 8 (a)
(3) of the Act.
10 In the event this Order is enforced by a decree of the United States Court of Appeals,
there shall be insefted before the words, "A Decision and Order ," the words, "A Decree
of the United States Court of Appeals Enforcing.'?
CALERA MINING COMPANY 959
Appendix A
NOTIUE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL UNION
OF MINE, MILL & SMELTER WORKERS, or any other labor organ-
ization of our employees, by discharging or refusing to reinstate
any of our employees, or by discriminating in any other manner
with regard to their hire and tenure of employment, or any term
or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization,
to form labor organizations, to join or assist INTERNATIONAL
UNION OF MINE, MILL & SMELTER WORKERS, or any other labor
organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Robert E. Strong immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to his seniority or other rights or privileges.
WE WILL make whole Robert E. Strong for any loss of pay
suffered as a result of the discrimination.
All our employees are free to become or remain members of the
afore-mentioned union, or any other labor organization, or to refrain
from such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any
employees because of membership in or activity on behalf of any such
labor organization.
CALERA MINING COMPANY,
Employer.
Dated-------------------- By----------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.,
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed by International Union of Mine, Mill & Smelter Workers
on September 25, 1950, and upon a charge filed by Robert E. Strong on October 2,
1950, the General Counsel of the National Labor Relations Board, hereinafter
-called the Board, by the Regional Director for the Nineteenth Region (Seattle,
Washington), issued a complaint dated February 5, 1951, against Calera Mining
Company, hereinafter called the Respondent, alleging that it had engaged in
and was engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended in 1947, 61 Stat. 136, hereinafter called the
Act. Copies of the complaint, notice of hearing, charges, and order consoli-
dating the cases for hearing were served upon the respective parties.
With respect to the unfair labor practices, the complaint alleges, in substance,
that on or about September 4, 1950, the Respondent discharged and there-
after refused to reinstate Robert E. Strong because of his membership in
and activities on behalf of the Union. The Respondent's answer, filed March
26, 1951, denied the commission of the unfair labor practice.
Pursuant to notice, a hearing was held at Salmon, Idaho, on April 2 and 3,
1951, before me, the duly designated Trial Examiner. The General Counsel
and the Respondent were represented by counsel and the Union by an inter-
national representative. Strong, although present, did not enter an appear-
ance or participate in the hearing other than as a witness. Opportunity
was afforded all parties to be heard, to examine and cross-examine witnesses,
and to introduce evidence pertinent to the issues.
At the close of the hearing, the General Counsel's unopposed motion to
conform the pleadings to the proof as to informal matters was granted. The
Respondent moved to dismiss the complaint on the ground that the charge
contained therein was not supported by evidence. Ruling was reserved thereon
and is now denied for the reasons hereinafter stated. Counsel requested
time in which to file briefs, and a date was fixed which was thereafter
extended on request. Briefs have been received from the General Counsel
and the Respondent.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
The Respondent is a New Jersey corporation, having its principal offices
in the City and State of New York. It is a wholly owned subsidiary of
Howe Sound Company. The Respondent and the Howe Sound Company have
common officers holding identical offices in each corporation, with the exception
of Reeve Schley, a vice president of the Respondent, who is chairman of
the board of Howe Sound. The latter operates two mines in Mexico, two
mines in Canada, and one in Holden, Washington. Total annual production
of the Howe Sound Company is estimated at between $20,000,000 and $40,000,000.
Zinc and copper coming from the Howe Sound .Company's Mexican mines
are processed in the United States. Copper from the Holden mine is smelted
at Tacoma, Washington, and the zinc coming therefrom is smelted at Kellogg,
Idaho. Of the zinc and copper mined in the Canadian mines, the copper is
CALERA MINING COMPANY 961
shipped to Tacoma, Washington, for smelting. The Holden mine produces
about 300,000 pounds of zinc per month, which, at the price of 17 cents
per pound, would be about $612,000 per year. It also produces about 500,000
pounds of copper per month, which, at the price of 251/2 cents per pound
would come to $120,000 per month, or about $1,440,000 annually.'
The Blackbird Division of the Respondent is located at Forney, Idaho. It
is not yet in production, but expects to begin production of cobalt and copper
ore in the summer of this year. There are few sources of cobalt in the
United States and the mine at Forney will supply a large part of the country's
requirement of cobalt. It is contemplated that it will produce about 1,000
tons of all ores per day by the first of next year. The copper will be sent
to the Garfield smelter in Utah, and the cobalt will be processed in Salt Lake
City, Utah, in the Respondent's own refinery which is now being constructed.
The Respondent started setting up camp at Forney in March 1946 and in the
spring of 1949 it started its building program at the mine property about 10 miles
from Forney, including an industrial plant consisting of a dry and change
room, a shop building, a warehouse building, an office building, a concentrator
building, and at the town site it is constructing a model town consisting of
dormitories, clinical staff residences, employees' residences, water system, sewage
system, electrical distribution system, and so on. Most of the building supplies
were purchased through the Home Lumber Company in Salmon, Idaho. The
cement and sand are procured within the State. The reinforcing steel and
machinery are imported from out of the State. At the time of the hearing
practically all purchases were coming from outside the State of Idaho. It
now purchases about $100,000 worth of materials and equipment per month,
more than half of which come from outside the State.
The Respondent contests the jurisdiction of the Board on the ground that
it was not engaged in commerce within the meaning of the Act at the date
of the filing of the charge. I find the objection without merit. It is enough
that the Respondent's operations to date affect commerce among the several
States. As a matter of policy, the Board will assert jurisdiction where the
volume of business for a portion of the year indicates that the full year's
volume will reach the minimum figures within the Board's formula, which
it obviously will here.2 Furthermore, the Respondent is one unit of a multi-
state, three-country corporation, the Howe Sound Company, which owns and
controls the Respondent, and which has the same officers. The Board has
frequently taken jurisdiction of enterprises which are operated as a part
of multistate businesses even though they might not themselves be engaged
in interstate commerce. I find that the activities of the Respondent affect
'commerce within the meaning of the Act and that it would effectuate the
policies of the Act to assert jurisdiction a
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Howe Sound Company, among others.
1 The foregoing prices of zinc and copper were the prices current at the time of the
hearing.
1 General Seat & Back Mfg Corp., 93 NLRB 1511.
'Bunker Hill Sullivan Mining & Concentrating Co., 89 NLRB 243; Intertown Corp.,
90 NLRB 1145 ; Mills Automatic Merchandising Corp., 86 NLRB 1096, and cases there
cited.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharge of Robert Strong
1. The history of Strong's employment at Howe Sound 4
Strong was first employed by the Howe Sound Company in July 1937. In
the fall of that year he quit when he broke a hand. In December 1937 he began
serving a sentence of 21/2 to 10 years for unlawful escape and a concurrent
sentence of 5 to 7 years on robbery. The unlawful escape referred to took place
in about 1932 at Yakima, Washington, where he had been serving time for
the crime of forging a check and grand larceny in 1927 when he was 21 years
of age. In February of 1945, a few years after he had been paroled, he was
reemployed at Howe Sound (by Douglas, now manager of the Respondent),
and he worked until May 1946 when he voluntarily quit after his wife died.
From October 1945 to June 1946 he was president of Local 379 of the Union
at Holden, Washington. As president, he was ex officio on all committees,
including grievance and negotiating committees. During his term the Howe
Sound Company employed an outside contractor, Morrison-Knudsen, to sink a
shaft. At a meeting of the Union, the membership voted to investigate why
the outside concern had been called in rather than having the work done by
members of the Union. A special meeting was held which was attended, among
others, by Strong, by the superintendent of Morrison-Knudsen, and by four or
five management representatives, including Messrs. Curzon, Bley, and Douglas.
Strong participated actively in this conference and in other meetings which
were subsequently held, during which considerable bitterness was engendered.
Shortly after the Morrison-Knudsen outfit came to Holden, a sugar shortage
occurred and some of that company's men struck for more sugar. Some mem-
bers of the Union also went out in sympathy. Strong negotiated with Curzon,
Bley, and another about the sugar strike, and at one meeting Bley said that
Strong "would get along better if he didn't stick his neck out so darned far."
In addition to the foregoing, Strong also engaged in three wage negotiating
conferences.
During 1945 a new doctor arrived in the Holden camp to serve the employees.
This doctor inaugurated a practice of billing employees for such things as
pills for colds contracted in the mine, for athlete's foot contracted in the dry
room, and so forth. The union membership, at a meeting, decided to find out
if this was a company policy. Five representatives of the Union, including
Strong, went to Curzon to ask if this practice could be eliminated. Curzon
said that the doctor was a contract doctor and it was up to him to do as he pleased.
Strong, himself, got a bill for $12 for athlete's foot and told the doctor that
he did not think he would pay for it. Complaints increased, and in September
the Union called a special meeting to seek the removal of the doctor. It prepared
a petition to that effect, and Strong helped to circulate the petition. The petition
was directed to the State Medical Board in Olympia, Washington. Although
there was no satisfactory result from this as far as the Union was concerned,
it was troublesome to the Howe Sound Company.
4 Many of the findings in this section are based upon the testimony of Strong. Not-
withstanding his criminal record I have credited his testimony to the extent that I deem
his memory to be accurate. Strong testified calmly, seriously, simply, and directly. It
was evident that, having paid his debt to society, he hoped to live down the past and
become an accepted member of that society. So far as the evidence showed, he had
worked diligently and was reestablishing himself. I do not feel that his past criminal
record should have a discrediting effect under the circumstances.
CALERA MINING COMPANY 963
In October 1945, Strong's wife had a heart attack and hemorrhaged at the
nose. Strong went to the recreation hall where the doctor was playing cards
and asked him to come see his wife. The doctor refused to do so on the ground
that there would just be another complaint from Strong. Later in the evening
when his wife got worse, Strong went back and pleaded with the doctor to come,
and the doctor reluctantly did so, but he swore at Mrs. Strong for being a
"big baby." Neighbor women who were in attendance upon Mrs. Strong criti-
cized the doctor's conduct and asked if he did not intend to sterilize his
instruments . The doctor replied that if this was such an emergency why should
he bother to sterilize them. The next day Strong's wife was worse and again
he went for the doctor. The latter said that Strong was getting down too early
to get him out of bed. When Strong indicated that his wife was in bad shape,
the doctor said that he might get up there sometime during the day. When
the doctor had not come by evening, Strong went to him and said he wanted
the doctor to authorize him to take his wife out to another doctor. The doctor
said that he didn't think that she was that bad. Strong said that he was
going to take her out anyway. In order to leave the camp it was necessary to
go by a special boat and only the doctor could authorize the procuring of such
a special boat. Strong talked to representatives of management, who failed to
give him any help. Finally he got the doctor to see his wife again, and the
doctor admitted that Mrs. Strong was worse than he had thought she was and
he then authorized a special boat. She was taken to a hospital, but she never
recovered. She died on April 9, 1946. As previously stated, Strong voluntarily
quit in May and left Holden in June 1946. Management representatives cited
the foregoing incident as another example of Strong's troublesomeness.
During Strong's employment at Holden in 1945 (as best as I can determine
the time), Strong was a base umpire at a company softball game. A foreman
named Adams during the game began to call Strong names, one remark being
that it was no wonder that Adams' side was getting robbed because the umpire
was a jailbird. After the game Strong went to the sidelines where Adams called
Strong a vile name. Thereupon Strong struck him and a 4- or 5-minute
fight ensued in which Strong gave Adams a thorough beating. There is no
evidence that Strong was ever reprimanded or otherwise penalized for having
struck the foreman, but it is quite obvious that he was not discharged therefor.
Although at the hearing Royce Richardson, the Respondent's chief accountant,
who had been with Howe Sound for 12 years before going to Forney, and who
had witnessed the fight, and Edwin Douglas, the Respondent's manager, also
formerly of the Howe Sound Company at Holden, tended to place the blame on
Strong for the fight, their testimony indicated a conscious attempt to avoid
saying anything favorable to Strong and to slant the evidence against him.
This demonstration of bias derogated from the reliability of their testimony.
Douglas testified he once summarily discharged a man for pushing a foreman
at the Respondent's mess hall. The fact that Strong was not discharged for
beating up Adams leads to the inference that he was not blamed. I do not be-
lieve that the officials of Howe Sound, including Richardson, would have placed
the blame on Strong and still not have discharged him or caused him to be dis-
charged.
In August 1946, after he had quit, Strong unsuccessfully attempted to get re-
employment by calling the Howe Sound employment agent-Snodgrass-at Hol-
den. In September Strong again called Snodgrass, without giving his name, and
asked if there were any jobs. Snodgrass said that he would look and see. When
Snodgrass returned to the telephone he asked who was calling and- Strong told
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him. Snodgrass then said that he was sorry but they had no openings. In
Spokane at about this time Howe Sound had advertisements posted for miners.
Strong went there and got a job under a fictitious name and then went in person
to Snodgrass and asked if there was any chance to go to work . Snodgrass said
that they did not have anything. Strong told Snodgrass that he had been hired
under a different name in Spokane , but he did not then go to work . In April
1947, Strong was in Holden to visit friends . While there he met Manager Curzon
on the street . Strong asked whether he had a chance of working for him again
and Curzon replied, "I think not."
While Strong was president of the local of the Union at Holden he pressed
grievances and negotiations vigorously , and there is evidence that Howe Sound
officials regarded Strong as personally responsible for much of the Union's bar-
gaining and grievance activity . His work record appears to have been good.
There is no evidence that he ever violated rules of the Company ( unless it would
be in striking Foreman Adams , for which he was not punished ). Respondent's
witnesses testified that Strong had a hot temper , but they gave no evidence of a
display thereof at Holden except in the fight with Adams and his indignation with
the doctor. Such discomfort as Strong occasioned for the management of Howe
Sound appears to me to have arisen mainly out of his activities on behalf of the
Union, and I infer that this was the principal reason for Curzon's attitude toward
Strong.
2. The history of Strong's employment with Respondent
Strong made application for employment with the Respondent on August 5,
1950. He had first talked with Edwin Douglas, the manager there. Douglas
had known Strong at Holden before being transferred to Forney as manager of
the Respondent, and he considered Strong to be a competent miner. However,
he turned him down for an underground job and referred him to Caples, the
Respondent's personnel man. Later the same day Caples told Douglas that
Strong was in the process of being hired. Douglas then gave his approval.
That evening, after Strong had been employed, Douglas told Strong that he had
known him for a long time and, according to Strong's credited testimony, said,
"I don't need to expect any trouble from you do I?" Strong answered, "No,"
and Douglas said he would take Strong at his word and that he thought he was
-a good man. Douglas testified that he told Strong that as long as he minded
his P's and Q's, attended strictly to business, and did not give him any trouble,
Strong had a job, but that when he got out of line or when he did not obey the
rules, he would be dismissed. He testified that, in his own mind, Strong was
strictly on probation. It appeared to me that Douglas' testimony in this instance
was fashioned to fit the nature of the defense offered by the Respondent rather
than being spontaneous and based on pure memory. I do not believe that Doug-
las mentioned any condition to Strong or that he warned Strong that he would
be dismissed for violation of rules. When Douglas was called as an adverse
witness by the General Counsel at the opening of the hearing, he testified that
Strong did not cause trouble at the Respondent's mine, that Douglas was merely
apprehensive because of such incidents as Strong's fight with the foreman at the
baseball game, his disturbance over an attempt to get a special boat to remove
his wife from the mine at Holden, and another incident which he testified oc-
curred at Holden. The latter incident, he testified, occurred during a Christmas
party in 1945 when Strong allegedly came to the house of H. A. Pearse, vice presi-
dent of Howe Sound, where Pearse was having a Christmas party for a few
CALERA MINING COMPANY 965
friends. According to Douglas, Strong in a very excited manner reported a fight
in a bunkhouse. It does not appear that the attending officials of the company
were perturbed over the reported fight or that they took any action. Douglas
testified that Strong did not remain long, but that he had a few drinks while he
was there (presumably offered. to him). Strong denied that he had ever been
to Pearse's house, or that he even knew where it was. I find it unnecessary to
resolve the conflict in testimony in view of the fact that, even if the incident oc-
curred, it was not of a character to be designated "trouble," and that it actually
played no. part in Strong's discharge.
The evidence indicates that Strong was the type of workman who could be
left to himself and who attended to business, and there is no apparent reason for
any apprehension on Douglas' part that he would not do so at the Respondent's
mine. In the absence of any evidence of prior violation of rules by Strong I
find no reason for Douglas to be apprehensive on that score. There is some evi-
dence that Strong had a temper, but the evidence also indicates that it was not
an unreasoning temper and that it took strong provocation to arouse him. On
all the evidence I deduce that the type of trouble Douglas apprehended was in
the nature of complaints and grievances in most of which Strong had participated
in his capacity as president of the Union at Holden.
From the time of his employment in August 1950 until the Labor Day week end
in September, Strong performed his work without incident. The Respondent
called for volunteers to do some work over the Labor Day week end and Strong,
among others, volunteered to work. Sometime after the death of Strong's first
wife, he remarried, and on the evening of September 2 he asked for and was given
a ride by two other employees to Salmon, where his wife was recovering from
a broken leg. The driver of the car proceeded at what Strong considered a
reckless rate of speed. Strong protested and warned of an accident, but was
told to mind his own business. Several miles out of Salmon the car in which they
were riding went off the road and overturned. None of the three was seriously
injured. But when Strong commented on the fact that the accident could have
been avoided, one of the employees started to strike Strong and Strong knocked
him down. Two other employees passing by gave Strong a ride to town where
he reported the accident. He made arrangements to meet the latter two men
at 12: 30 that night for the return trip. Strong then went to see his wife and
returned to the appointed place in town to meet the men who were to drive him
back. They did not appear until around 4: 30 o'clock in the morning. Appar-
ently the other men were not in top form, and Strong drove most of the way back.
They arrived at the mine 15 minutes to half an hour late.5 Strong told Lawrence
Thomas, assistant master mechanic, who was supervising the work of the skele-
ton crew that week end, about the incident and also apologized for being late.
The employees who had brought him back corroborated Strong's report. Thomas
said that it was all right and gave the two men who had come in with Strong
permission to work overtime that day, Sunday, in order to make up the time
lost. Strong changed his clothes and got to work immediately.
During that week end there was a party of New York officials visiting the
mine and some of the management staff from Holden were there as well. In this
party were, among others, H. H. Sharp, president of the Respondent and of Howe
Sound ; H. A. Pearse, vice president of both companies ; Vinton Clarke, execu-
tive mining engineer of both companies ; John Bley, superintendent at Holden ;
S Starting time over the Labor Day week end was an hour earlier than it had been
regularly. Strong carried no watch and his estimates of times of day I find are relative
only.
986209-52-vol . 97-62
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Curzon, the manager at Holden . During Sunday morning this party visited
the mine and the mine buildings and ate a late lunch at the mine mess hall.
When they left the mess hall and were gathered in front of it, Curzon saw Strong
riding by on the back of a truck which was carrying steel up the hill. Curzon
pointed to Strong and said , in substance , "There's a real troublemaker and
eventually he will cause trouble for you."
Strong was discharged either Sunday or Monday evening. According to Strong,
be worked the rest of the day on Sunday and all day Monday, at which time
Thomas gave him his pay checks and told him that he was being discharged.
There was strong corroborative testimony to support his version. According to
witnesses for the Respondent , Strong did not work Sunday afternoon ' and was
given his pay check and notified by Thomas of his discharge on Sunday evening.
The Respondent sought to corroborate its version of the time by payroll records.
The accuracy of these records appears to be questionable . Some of the wit-
nesses for the Respondent were positive that Strong 's discharge could not have
occurred on Monday . I have correlated a great deal of the testimony regarding
the work and the activities of various employees and I am inclined to favor the
General Counsel 's version.
However , in view of my ultimate conclusion that Strong was discriminatorily
discharged , it makes little difference ( except for credibility purposes ) whether
Strong was given his checks on Sunday or Monday evening . The decision to
discharge him was undoubtedly made on Sunday afternoon. If the delivery of
his checks was delayed until Monday afternoon , it would indicate either an
intentional or unintentional delay on someone's part to set the wheels of discharge
in motion. There could be an explanation for either. At about 5 p. in. of the
day of discharge , Thomas met Strong between the bunkhouse and the mess hall.
Strong said he was just going to make out his timecard . Thomas told him there
was no need to because he had been told told to give Strong "these," and he
handed Strong an envelope containing two checks ,' indicating that Strong was
discharged . Strong commented that it must be the work of Curzon and Bley.
Thomas asked what Strong had ever done to them to make them want to dis-
charge him . Foreman Clayton George came up at this time and Strong told
him he had been discharged but did not know why . George asked Thomas why
Strong had been discharged. Thomas said that he did not know, that it was
orders from "the big shot" and that it was a dirty deal.` Thomas testified that
he got his orders to discharge Strong directly from Master Mechanic Legard,
his superior, and indirectly from Douglas. Later, George asked Legard why
Strong had been discharged. Legard answered, "Company policy, company
policy."
The Respondent gave as the reason for Strong's discharge first, that Strong
had come on the job late on Sunday morning and, second, that he had walked
off the job at noon and gone to the bunkhouse and done no work the rest of the
day. Thomas testified that right after lunch on Sunday, Strong had told him
that he was sleepy,'that he was going to the bunkhouse to sleep, and that he
(Thomas) did not protest. He testified that he reported this to Legard at about
1: 30 p. in. The Respondent's evidence with regard to the timing of the discharge
One of these checks was for the last 2 weeks in August. The other was for work to
Sunday noon . Both checks were dated September 2, but Richardson , who made them out,
testified that they were prepared Sunday afternoon and were dated back for the day
before because of his uncertainty of the legality of a check dated on Sunday. Strong
never checked the accuracy of the amounts but assumed they were accurate.
4I do not credit Thomas ' testimony that he told Strong he was being discharged for
cutting shift.
CALERA MINING COMPANY 967
and with regard to Strong's failure to work on Sunday afternoon was conflicting
and unreliable. Douglas testified on direct examination for the Respondent
that Legard had told him just before lunch on Sunday (which the officials started
at about 12: 45 p. m.) that Strong had come in late that morning, bleary-eyed,
and that he (Douglas) "heard" that Strong had been drinking. He testified
further that he gave immediate instructions that Strong be discharged. Evi-
dently at this point in his testimony Douglas overlooked the fact that Strong's
purported cutting of the Sunday afternoon shift was one of the alleged grounds
for his discharge. He did, however, at another place mention -that at lunch
Legard reported to him that Strong had walked off the shift at noon on Sunday.
Legard did not testify and it does not appear how he would have learned that
Strong walked off the job at noon (assuming for the sake of argument that this
was true) unless Thomas told him, and according to Thomas, he told Legard
about the incident at about 1: 30 p. in., after the time when Legard supposedly
reported the matter to Douglas. It was approximately 1: 30 or 2: 00 p. m. when
the officials, having finished lunch, were standing outside the mess hall and
when Curzon pointed to Strong and said he was a troublemaker. In view of the
evidence that at that very moment Strong was seen by Curzon to be riding by
on the truck, it is obvious that Strong was not asleep in the bunkhouse as the
Respondent would have it believed. The Respondent's evidence is further shown
to be unreliable by the testimony of Thomas that when he received the pay checks
for Strong at about 3: 30 p. m., he went to look for Strong all over the grounds,
but he did not, apparently, look in the bunkhouse where he previously had
assumed Strong was. On all the evidence and from my observation of the wit-
nesses I completely discredit the Respondent's testimony that Strong had gone to
the bunkhouse to sleep and had not worked on Sunday afternoon -
Strong remained at the mine overnight after his discharge, and in the morn-
ing, whether it be Monday or Tuesday morning, he asked Richardson if it would
be possible to see Sharp or Pearse. Richardson replied that he did not think
it would be possible, and Strong left and did not return thereafter.
3. Concluding findings
Neither of the reasons given for Strong's discharge is convincing. Strong's
tardiness on Sunday morning, September 2, was dismissed by Thomas as of no
consequence. There is no evidence that the other two men who were late with
Strong were disciplined, although they were the ones who caused Strong to be
late. In fact Thomas gave them permission to work a little longer in the evening
to make up for the time missed in the morning. I do not believe that Douglas
was informed that Strong came on the job drunk. That appears to be an ex-
aggeration by Douglas in an effort to find a more plausible explanation for
Strong's discharge. I have already found that Strong had not walked off the
job as the Respondent's witnesses testified. The only apparent reason for
Strong's discharge was the comment made by Curzon in the presence not only
of Douglas, but also of the president and other officials of the two corporations.
Although Douglas testified that he was not directed or advised by anyone else
to discharge Strong, he testified that he discussed the discharge with President
Sharp after his decision had been made. It does not seem possible to me that a
routine discharge of a man for cutting a shift would be discussed with the
president of the company, and it would appear to have been dealt with as
something more than routine. It is argued that Douglas knew as much of
Strong's activities at Holden as Curzon did and therefore that Douglas learned
nothing from Curzon that would have caused him to discharge Strong. Some
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the incidents which engendered ill feeling at Holden occurred after Douglas
had left there, and Douglas may well have felt less strongly about them for that
reason than,Curzon. But whether or not Douglas was instructed or even advised
to discharge Strong, it is a fair inference that Douglas stood to expose himself
to criticism by officials of the Respondent after Curzon's comment on Strong in
the presence of the Respondent's high officials and that he would be expected to
justify himself. I have found that it was Strong's conduct in connection with
union activities which caused him to be looked upon by management representa-
tives as a "troublemaker" and I find that this was the meaning conveyed by
Curzon's remark. Although union organization had not take place at the
Respondent's mine, Strong had openly talked in favor of the union even in
conversations with the son of President Sharp, who worked at the mine until
the departure of his father at the end of the Labor Day week end. Considering
the timing of Strong's discharge with reference to the time of Curzon's remark,
the Respondent's effort to advance spurious reasons for discharging Strong, the
attending circumstances, including the presence of the high officials, Strong's
past union activities, and all the evidence, I find that the motivating cause for
Strong's discharge was Strong's previous union activities and the Respondent's
apprehension of the same type of activity here. By the discharge of Robert
Strong, therefore, I find that the Respondent discriminated in regard to his
hire and tenure of employment in violation of Section 8 (a) (3) of the Act,
thereby interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I will recommend that it cease and desist therefrom and take the affirm-
ative action set forth below which I find will effectuate the policies of the Act.
I have found that the Respondent discriminated in regard to the hire and
tenure of employment of Robert Strong by discharging him on the Labor Day
week end of 1950. I did not resolve the conflict in evidence as to the exact time
of his discharge. Because in any event he received no pay for work actually done
after noon on Sunday, September 3, the Respondent's claimed date of discharge
may be accepted for remedy purposes. I shall therefore recommend that the
Respondent offer Robert Strong immediate and full reinstatement to his former
or substantially equivalent position 8 and make him whole for any loss of pay
which he may have suffered as the result of the discrimination against him by
payment of a sum of money equal to that which he would have earned as wages
from September 3, 1950, to the date of the offer of reinstatement. Loss of pay
shall be computed on the basis of each calendar quarter or portion thereof during
the period from September 3, 1950, to the date of a proper offer of reinstatement.
The quarterly periods, herein called "quarters," shall begin with the first day of
8 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
JOHN DEERE WATERLOO TRACTOR WORKS 969
January, April, July, and October. Loss of pay shall be determined by de-
ducting from a sum equal to that which Strong would normally have earned for
each quarter or portion thereof of his net earnings,' if any, in other employment
during that period. Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other quarter." In accordance with the Wool-
worth decision, it will be recommended that the Respondent, upon reasonable
request, make available to the Board and its agents all records pertinent to an
analysis of the amount due as back pay.
The unfair labor practices herein found reveal an opposition on the part of
the Respondent to the objectives of the Act, justifying an inference that the
commission of other unfair labor practices may be anticipated. The preventive
purposes of the Act may be frustrated unless the Respondent is required to take
some affirmative action to dispel the threat of future unfair labor practices.
It will be recommended, therefore, that the Respondent cease and desist from
in any manner interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record of
the case, I make the following:
CONCLUSIONS OF LAW
- 1. International Union of Mine, Mill & Smelter Workers is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Robert
Strong, thereby discouraging membership in a labor organization, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
3. By the aforesaid unfair labor practices, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (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.
[Recommended Order omitted from publication in this volume.]
9 Crossett Lumber Company, 8 NLRB 440.
10 F. W Woolworth Company, 90 NLRB 289.
JOHN DEERE WATERLOO TRACTOR WORKS and EMPLOYEES OF THE Ex-
PERIMENTAL DEPARTMENT OF THE JOHN DEERE WATERLOO TRACTOR
WORKS, PETITIONERS and LOCAL No. 838, INTERNATIONAL UNION1
UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, CIO. Case No. 18-RD-57. January 4,1959
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Max Rotenberg, hearing
97 NLRB No. 145. -
a