Gallup American Coal Co.

National Labor Relations Board - Board Decisions

Jun 18, 1941

32 N.L.R.B. 823 (N.L.R.B. 1941)

In the Matter of GALLUP AMERICAN COAL COMPANY and UNITED MINE
WORKERS OF AMERICA , DISTRICT No. 15
Case No. C-1764.Decided June 18, 1941
Jurisdiction : coal mining industry. -
Unfair Labor Practices
In General: employer held accountable for acts of superintendent and foremen.
Interference, Rest7aint, and Coercion: threat to discriminatorily refuse to hire
union officer if he persisted in faithful performance of the duties entrusted to
him ; posting a notice on bulletin board conveying to employees an unwilling-
ness to recognize labor organizations as their exclusive representative ; destroy-
ing union signs on employer's property while permitting other signs to remain.
Discrimination: discharges ; refusal to hire former employee ; and refusal to
-reinstate a furloughed employee- because of their union membership and
activity-charges of, dismissed as to six employees. -
Remedial Orders : reinstatement and back pay awarded.
Mr. Paul S. Kuelt/iau, for the Board.
Mr. Harris K. Lyle, of Gallup, N. Mex., Wilson cfi Woodbury, by
Mr. J. F. Woodbury, of Silver City, N. Mex., and Mr. C. C. Parsons,.
of Salt Lake City, Utah, for the respondent.
Mr. Earle Stucker, of Gallup, N. Mex., for the Union.
Mr. William T. Little, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges'- duly filed by United Mine
Workers of America, District No. 15, affiliated 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 com-
plaint dated September 24, 1940, against Gallup American Coal
Company, Gallup, New Mexico, herein called the respondent, alleg-
ing that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
I The charge was filed on February 17, the first amended charge on March 20, and the
second amended charge on September 24, 1940.
32 N. L. R. B., No. 142.
823
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint, accompanied by notice of hearing, were duly served upon
the.respondent and the Union.
With respect to the unfair labor practices, the complaint alleged'
in substance: (1) that the respondent, on or about April 19, 1939,
laid off James Anaya, George Burrola, Serapio Calvillo, Ivan D.
Cochran, Kenneth T. Cochran, A. J. Cordova, Celso Esparza,2 Charles
Frkovich, Lorenzo Hernandez, and Benigno Jiminez; and, at all times
since has refused to reinstate or reemploy said employees because
they , joined and assisted the Union; (2) that the, respondent dis-'
charged John Portley in July 1939, and Antonio Ponce in April, 1939,
and, has since refused to reinstate or reemploy them because they
joined'-and assisted the Union; (3) that the respondent, during the
period from- July 5, 1935, down to and including the date of the
filing of the 'e61nplaint herein, urged, persuaded, and warned its em-
ployees to refrain from joining or retaining membership in the Union
and threatened its employees with discharge if they joined or assisted
the Union; and (4) that the respondent; by the foregoing acts, inter-
fered with, restrained,- and. coerced its 'employees in the exercise of
the rights guaranteed by Section ,7 of the Act. On October 4, 1940,
the respondent filed its answer, in which, in substance, it denied that
it was engaged, in commerce within-.the meaning of the Act or that
it had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Gallup, New Mexico,
on October 14, 15, and 16, 1940, before George Bokat, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel, the Union by a
representative, and all parties participated in the hearing. Full
opportunity to be heard, toexamine,and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all par-
ties.,' During the hearing counsel for the respondent moved to;dis-
miss the complaint and to strike the testimony of several- of the
Board's witnesses. These motions were denied.' The'motions of the
Board's counsel to, dismiss the complaint. as to 'Benigno Jiminea
and to conform the pleadings to the proof- were granted. During
the 'course of the hearing the Trial Examiner made several rulings on
other motions and on objections to'the •adinission of evidence. The
Board has reviewed the ruling's of the Trial Examiner and finds
that no prejudicial errors were committed., The rulings are hereby
affirmed. -
Thereafter the Trial Examiner issued his Intermediate Report,
dated December 13, 1940, copies of which were duly served upon the
2 Erroneously spelled Celse Esparza in the complaint.
GALLUP AMERICAN COAL COMPANY 825
respondent and the Union . In his Intermediate Report the Trial
Examiner found that the respondent had engaged in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (3 ) and Section 2 (6) and (7) of the Act by discharging and
refusing to reinstate James Anaya , George Burrola, Celso Esparza,
Antonio T. Ponce, and John Portley, and by refusing to hire Lorenzo
Hernandez . The Trial Examiner recommended that the respondent
cease and desist from the unfair labor practices and take certain
affirmative action designed to effectuate the policies of the Act. He
further recommended that the complaint be dismissed as to Charles
Frkovich , Serapio Calvillo, Ivan Cochran , Kenneth Cochran, and
Antonio Cordova, who , he found, were not. discharged in violation
of the Act.
Thereafter , the respondent filed a brief and exceptions to the In-
termediate Report. Pursuant to notice duly served upon the respond-
ent and the Union, a hearing for the purpose of oral argument was
held before the Board at Washington, D. C., on February 6, 1941.
The respondent was represented by counsel and presented oral argu-
Inent. At the oral argument the respondent contended , and sub-
Initted an affidavit averring, that the respondent employed a number
of Negro miners and company men and that a number of such
Negroes were members of the Union . The affidavit was submitted
in rebuttal to a statement contained in the Intermediate Report,
which the respondent asserts finds no support in the record, to the
effect that , "Portley was the only negro miner in the employ of the
respondent and therefore , the only negro miner who was a member
of the Union." The respondent claims that the fact that the Trial
Examiner erroneously stated that Portley was the only Negro miner
proves that the Trial Examiner based his findings of fact on infor-
mation obtained "outside the record" and that the respondent was
consequently denied due process of law. We are of the opinion and
find that there is no merit in the respondent's contention. The
Board has considered the respondent 's exceptions to the Intermediate
Report, and its brief in support thereof, and in so far as the excep-
tions are inconsistent with the findings , conclusions , and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is and has been since June 1917 a corporation
organized under the laws of the State of Delaware. Since July 1917
it has been qualified to do business in the State of New Mexico. Its
principal office is at Hurley, Grant County , New Mexico , and its
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
principal place of business is at Gamerco, McKinley County, New
Mexico.
The respondent is engaged in the mining, preparation for market
and marketing of bituminous coal at its mine at Gamerco. During
the year 1939, the respondent sold 252,636.41 tons of coal valued at
approximately $804.211, this coal being mined and produced on coal
lands owned by the respondent. Of the coal mined and produced
during the year 1939, 146,060.3 tons were sold to the Atchison,
Topeka & Sante Fe Railway Company, substantially all of which
was engine coal used in the operation of engines pulling freight or
passenger trains on the tracks of the Atchison, Topeka & Santa Fe
Railway Company, a transcontinental railway; 70,076.6 tons were
sold and shipped to points within the State of New Mexico, and
36,496.6 tons were sold and shipped to points outside the State of
New Mexico.
II. THE ORGANIZATION INVOLVED
United Mine Workers of America, District No. 15, is a labor or-
ganization affiliated with the Congress of Industrial Organizations,
and admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
In 1917 the Union had a contract with the Victor American Fuel
Company which was to run for 2 years. In July the respondent took
over the mines operated by the Victor American Fuel Company but
did not adopt the union agreement. Its failure to do so caused the
Union to go on strike. According to the uncontradicted testimony
of Rudolph Hefferly, which we find to be true, the respondent then
"imported a lot of Baldwin-Feltz detectives and gunmen of all types"
and evicted the strikers from the company-owned houses that they
occupied. With the aid of local law-enforcement officials, a number
of the' active union members were "deported," but were later per-
mitted to return to Gallup. The strike, however, was effectively
broken, and many of the miners lost their jobs since the respondent
had replaced them with "foreign labor."
In 1919 and 1922, the Union again called strikes at the respond-
ent's mine, but they were unsuccessful. In 1933 the National Miners
Union represented the respondent's employees. When the respond-
ent refused the demands of this union, the employees went on strike,
but again met with no success.
In May 1938, Earle Stucker, a field representative and organizer
for the Union, began organizational activities among employees of
GALLUP AMERICAN COAL COMPANY 827
coal mines in the Gallup district. After successfully organizing the
employees of several coal companies in this district, Stucker, in
November 1938, began an organizational campaign among the em-
ployees of the respondent. He revived the local which had previously
been formed by the respondent's employees. By April 1939, Stucker
and his assistants had succeeded in obtaining approximately 200
members out of approximately 450 employees of the repsondent.
B. Interference, restraint, and coercion
At about the time of the strike of the National Miners Union in
1933 the respondent agreed to recognize the pit committee and check
weighman of the United Mine Workers. Antonio Cordova a
member of the Union was elected check weighman. As such it
was his duty to check the weights of coal mined by the em-
ployees, and to compare results with the company weighman.
Cordova's salary was paid by the miners, deductions being
made from their salaries for that purpose. He worked as check
weighman until the latter part of 1936, when he quit because of a
dispute that he had with the company weighman over certain weights
of coal. During his tenure as weighman, Cordova had many dis-
putes with the company weighmen over the coal mined by the em-
ployees. According to the uncontradicted testimony of Cordova,
which we find to be true, until the time he quit the position of check
weighman in 1936 Superintendent Husband "used to tell me that it
wouldn't do any good to do so much fighting down there; it would
be bad for me, because after all I wouldn't be working as a weighman
all the time and I wouldn't be able to get a job afterwards." In
November of 1937, at a time when there was little union activity
at the mine, Cordova applied to Husband for a position and was
informed by the latter that there was no job for him because he
"raised too much hell." He thereupon applied to General Manager
Moses, who arranged with Husband to `put him to work. When
Cordova reported for work, he was informed by one Gerard, a fellow
employee, that he had overheard Moses and Husband in a conversa-
tion wherein Husband told Moses that he had not given a job to
Cordova because he "raised too much hell," and Moses replied, "It
would probably be best to give him a job there so that he would
keep his mouth shut instead of going around and trying to organize
our men." This testimony was not contradicted, and we find it to
be true. We find that Husband sought to induce Cordova to forego
the faithful performance of the duties entrusted to him.
From February 10, 1934, until early 1940 there had been posted
on the respondent's bulletin board a notice setting forth the respond-
ent's policy under the National Industrial Recovery Act. The notice
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that "the Company recognizes no distinction between em-
ployees based on membership or non-membership in any organization,
whether economic, social, political, or religious" and that it would
discuss matters, of, "mutual or separate interest" with employee rep-
resentatives "selected from among themselves by groups or as a
whole." The notice further provided :
The 'Company will not recognize any committee as representing
either a group of its employees or its employees as a whole
unless all of the employees constituting such group or whole,
and regardless of affiliation with any organization or society of
employees or otherwise, have been afforded the right to par-
ticipate in selecting such committee : nor will such committee
be recognized as representing any employee or employees who
do not wish to participate in such election.
Neither under the National Recovery Act nor under the Bitu-
minous Coal Code for Division Five, to which this Company is
a subscriber, nor under the fixed.policy of this Company, is it
,necessary that any person or employee belong or refrain from
belonging to any organization as a condition to securing or
retaining employment or as affecting the right of individual or
collective bargaining with the management, and the Company
will not enter into any engagement or understanding with any
employee or committee of employees or with anyone else that
would deprive or countenance deprival of any employee or any
person seeking employment of exercising entire freedom in such
matters [italics supplied].
New copies of the notice were posted in December 1936 and August
1939 and were maintained until some time in 1940. The respondent
claims that the notice was posted pursuant to the National Industrial
Recovery Act and that it removed the notice in 1940 when it learned
that "the courts had interpreted certain sections of the labor laws
in such a manner that this notice might not meet the existing condi-
tions. "- By the notice, the respondent conveyed to its employees its
unwillingness to recognize labor organizations as their exclusive rep-
resentative, assured them that it was unnecessary to join labor organi-
zations to obtain the benefits of collective bargaining, and failed to
take' any action to advise them to the contrary after it admittedly
learned,of the illegality of its prior conduct.3
There are a great many large boulders situated along the road
leading to the respondent's Gamerco camp and on the respondent's
It should be noted in passing that even under Section 7 ( a) of the National Recovery
Act, 48 Stat . 198, the notice was illegal See Hatter of Houde Engineering Corporation
and United Automobile Workers, Federal Labor Union No. 18839, 1 (old) N. L. R. B. 35.
GALLUP AMERICAN COAL COMPANY , 829
property. A number of signs, for the most part of an advertising
or religious nature, have been painted on these boulders for a long
time. Stucker, the union organizer, testified that on January, 31,
1940, he and Jose Lopez, an employee of the respondent, painted
some union signs on these boulders, and then proceeded to paint
one on a fence surrounding the ball park at Gamerco, which also
contained a number of other signs. Before they finished painting
this last one, however, Dooley, one of the respondent's foremen,
ordered them to stop because it was the respondent's property and
because, as they admitted, they had not obtained permission. Ac-
cording to Stucker's uncontradicted testimony Dooley ,admitted that
the other advertisers had not obtained the respondent's permission
to use its property. Later the same day, all the signs were removed
from the fence, and a notice to "Post no Bills" was posted thereon.
On the other hand, although all the union signs were painted out on
the boulders, the other signs thereon were permitted to remain.
The ball-park fence at Gamerco appears to be a well-kept business
property of the respondent. The respondent did not discriminate
against the Union but removed all the signs on the fence and forbade
the future use of the fence for similar purposes. The boulders, on the
other hand, do not appear to be part of a park system or anything but
large stones on the Company's property which extends over some
29,000 acres. That the respondent had no objection to their use as
rough sign boards is indicated by the fact that it did not obliterate the
other signs painted on similar boulders. Nor did it claim at the hearing
that it had made any practice of removing such signs. Under such
circumstances, we are of the opinion and find that in painting out
the union signs, the respondent desired to prevent the Union's message
from reaching its employees rather than to protect its rights to ex-
clusive possession of its property .4
In February 1939, when Celso Esparza complained to Otto Fellin,
his foreman, about the amount of pay he had received for doing certain
work, Fellin replied, "it wasn't necessary to pay me anymore because
in a short time the union would pay me in full." In about 2 months.
as we find below, Esparza was discriminatorily discharged. We are of
the opinion, and find that the statement foreshadowed the subsequent
discrimination against Esparza and was intended to discourage
Esparza's membership in the Union.
The respondent denies that it is responsible for the statements and
acts of Husband, its superintendent, and its foremen, Fellin and Dooley.
These employees, however, as indicated by their titles, exercise sub-
4 In so finding , we do not interfere with the respondent's right to maintain its'property
as it sees fit. The interference, we find, consisted in the singling out of only the union
signs for obliteration.
830 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
stantial management authority over the employees under them and the
respondent is responsible for their conduct.5
We find that by permitting the notice of February 10, 1934, to remain
on its bulletin boards after July 5, 1935, and by reposting the notice
thereafter, by obliterating the union signs, by Husband's statements to
Cordova, and by Fellin's statement to Esparza, the respondent has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
C. The discharges in April 1939
There was a decrease in the respondent's business in the first part
of 1939. On February 17, 1939, the respondent was notified by one
of its customers, the United Verde Branch of the Phelps Dodge Cor-
poration, to discontinue all shipments of slack coal to it at the close
of the day of February 25, 1939. On April 8, 1939, the respondent
was notified by another of its customers, The Atchison, Topeka &
Santa Fe Railway Company, that shortly after May 1, 1939, it was
going to change some of its freight and passenger locomotives from
coal to fuel oil, resulting in a reduction of its coal requirements. As
a result, on April 11, 1939, Horace Moses, general manager of the
respondent, wrote to the president of the respondent at its New York
City office, in part, as follows :
The No. 5 mine now is on a working basis of two days per
week. We had expected that some of the men would become
discouraged and find employment elsewhere, but to date none
have left. It seems necessary that working forces be reduced
immediately, so a list is now being prepared showing names of
all employees, and preference will be shown to the oldest em-
ployees and consideration given as to whether they are married
or single.' A few men will be laid off each week rather than a
large number at one time.
On prior occasions of reductions in business, the respondent had
maintained its force of employees but had reduced their working
hours. On this occasion, however, Clarence E. Uhland, assistant to
the general manager, testified, the respondent decided to lay off be-
tween 75 and 100 employees because "we thought we had to reduce
the working force in order that the men might be able to make a
6 International Association of Machinists v. National Labor Relations Board, 311 U. S. 72,
aff'g 110 F. (2d) 29 (App. D. 'C.), enf'g Matter of The Serrick Corporation and Interna-
tional Union, United Automobile Workers of America , Local No. 459, 8 N. L. R. B. 621
H. J. Heinz Co. v. National Labor Relations Board, 311 U. S. 514, aff'g 110 F. ( 2d) 843
(C. C. A. 6), enf'g Matter of H. J. Heinz Company and Canning and Pickle Workers, Local
No. 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, American Federation of Labor, 10 N. L. R. B 963.
The respondent subsequently abandoned its plan to give consideration to the fact that
its employees were married or single.
GALLUP AMERICAN COAL COMPANY 831
living." The respondent did, not have a seniority list showing the
service ages of its employees, so Uhland instructed the clerical staff
to prepare such a list from the records of the respondent. The em-
ployees were placed in three groups for the purpose of determining
their seniority, the miners in the first, the "inside company men" 4
in the second, and the "outside company men" in the third group.
The employees were then listed in the group to which they belonged
according to their longest continuous service with the respondent.
Uhland testified that because of the inadequacy of the respondent's
records and the short period of time in which they were prepared,
the seniority lists were not entirely accurate. Uhland further stated
that when he received the seniority lists, he made inquiries among the
supervisory and clerical staff in order to correct inaccuracies. Where
an employee's break in service with the respondent was caused by an
injury, sickness, or by a leave of absence, the seniority age of said
employee was changed so as to date from the earliest continuous
service period prior to the "break." Between April 19 and 30, 1939,
the respondent discharged 31 of approximately 325 miners, discharged
4 of approximately 99 "inside company men," and transferred several
others to jobs as miners. Included in the 31 miners discharged are
6 of the complainants herein, and included in the 4 "inside company
men" discharged are 3 of the complainants. Uhland testified that
the employees laid off were, in effect, -discharged, because it was the
respondent's intention to sever them permanently from the pay roll
inasmuch as it expected a further decrease in" its production in the
future.
At the hearing, the respondent conceded that it had retained some
miners younger than those laid off. Uhland testified as to why each
of these younger men was retained : in some instances, he stated, mis-
takes were made which were not discovered until after the lay-off had
taken place; in other cases, he made exceptions because of unusual
circumstances, such as one of the miners being the sole support of 10
dependents; as to several other cases, he had, no reason why younger
men were retained other than that some satisfactory explanation must
have been given to him at the time of the lay-off which, however, he
could not recall at the time he testified.
From the above facts, we find, as did the Trial Examiner, that the
respondent decided to decrease the number of its employees because
of business reasons. The method used in selecting the employees for
lay-off and the circumstances surrounding their selection, as set forth
above, are factors to be considered as applying generally to all the
complainants alleged to have been discriminatorily laid off. Other
' Uhland explained that "company men" are those paid by the day, whereas miners are
paid on a tonnage basis.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factors, pertaining to particular complainants will be set forth and
considered in detail in the discussion below.
Celso Esparza was employed by the respondent as a miner on No-
vember 8, 1937. He joined the Union in January 1939, and was active
in soliciting memberships for the Union both inside and outside the
respondent's mine. Uhland denied that he was aware of the fact that
Esparza was a member of the Union. However, as noted above, in
February 1939, when Esparza complained to Fellin, his foreman, about
the amount of pay he had received for doing "brushing" or "dead
work," 8 Fellin replied that "It wasn't necessary to pay me any more,
because in a short time the union would pay me in full." In view of
this conversation, we find, as did the Trial Examiner, that the respond-
ent had knowledge of Esparza's union membership.
On April 25, 1939, according to Esparza's uncontradicted testimony,
Fellin informed him that he was going to be laid off and that he, Fellin,
was sorry about it because there were other men not being laid off who
did' not produce as. much coal as Esparza . We accept Esparza's
testimony as true, as did the Trial Examiner.
- - From'the name of the youngest to the name of the oldest miner
laid off on the respondent's revised seniority list,9 there appear the
names of 45 employees. Of these 45 men, 31 were discharged. Es-
parza was older in seniority than 35 of these 45 employees. At least
six miners 10 admittedly having less seniority than Esparza and one 11
with equal seniority were retained. Paz Carrillo was 35th in the
order of seniority of the 45 men on the revised seniority list and the
next younger man to Esparza. When asked whether he had any rea-
son for not discharging Carrillo, Uhland replied that "He is another
that -through error was just omitted." No further explanation was
offered by the respondent for retaining Carrillo over Esparza.
Uhland explained that Leo Zadey, another miner, was not discharged
because his name had also been overlooked. But in the case of
Zadey, through some error which appears reasonable, his name did not
appear upon the original seniority list and the error was not dis-
covered until after the discharges had taken place. In the case of
Paz-Carrillo, however, his name does appear on the original seniority
list, which is in evidence, and which clearly shows that Carrillo was
younger in seniority than Esparza. Under these circumstances, the
e."Brushing" or "dead work" involves the removal of rock both above and below a seam
of coal
9 The respondent prepared for the hearing a seniority list of 45 miners which set forth
the seniority ages of those between the youngest and oldest miner discharged This list
was taken from the original seniority list of the miners prepared for the lay-off, but ex-
cluded those whose seniority had been interrupted by illness , injury, or a leave of absence,
or had been corrected for other reasons
10 Leo Zadey, Bonifacio C. Rodriquez, Gregorio Fernandez, Ettore C. DiSantis, Jose Lopez,
Paz Carrillo. '
11 Telesfor Gabaldon.
GALLUP AMERICAN COAL COMPANY 833
explanation made by Uhland as to Carrillo does not appear plausible,
particularly in view of his testimony that after receiving the' seniority
list he made every reasonable effort to correct inaccuracies with
regard to seniority. Furthermore, the respondent retained in its
employ a number of employees who, according to its original senior-
ity list, had less seniority than Esparza. In a number of cases,,Uh-
land explained that he decided that the employee' in question was
entitled to greater seniority because he had learned that the break
in the employee's employment record which he had first viewed as
interrupting his seniority had been caused by illness, injury, or leave
of absence, which, according to the respondent's seniority policy, did
not interrupt seniority.12 However, in the case of five other em-
ployees, who, according to the original seniority list, had less seniority
than Esparza, the respondent offered no explanation why they,•were
credited with greater seniority on the revised seniority list other than
the general statement that some satisfactory explanation must have
been made at the time.13 The respondent was given ample notice
of the hearing. The question of the seniority to be credited the above
employees did not come as a surprise but represented part of the
respondent's own case . There was no showing that the clerical and
supervisory employees • from whom Uhland originally obtained his
information as to the cause of the breaks in the employment records
were no longer available. Nor was it shown that the employees whose
seniority was in question were unavailable and could no longer inform
the respondent of the reason for the break in their employment
records. Under such circumstances the respondent's failure to ex-
plain why the employees in question were credited with greater senior-
ity than Esparza is unsatisfactory. In view of this fact and the im-
plausible nature of Uhland's explanation for the retention of Car-
rillo in preference to Esparza, we are impelled to the conclusion, as
was. the Trial Examiner, that the respondent was motivated by Es-
parza's union membership and activity in discharging him.14
We find that by discharging Celso -Esparza the respondent has dis-
criminated in regard to his hire and tenure of employment, thereby
discouraging membership in the Union and interfering with, restrain-
ing and coercing its employees in the exercise of the rights guaranteed
by Section 7 of the Act.
George Burrola had previously worked for the respondent but his
last continuous service as a miner dated from October 5, 1937. He.
was discharged on April 20, 1939. He joined the. Union in June, 1938,
12 111 or injured . Antonio Alvarez , Angelo Deli Georges, Jose Grijalba , and Romulo Haro;
Leave of absence - John B. Crowley, Alexander M. Romero , and Jose Romero
'$ Angelo Cattaneo , Victor Guturrez , Gregorio Henojosa , Jim Masci , and Gil Ortiz.
34 Cf. Montgomery Ward & Co. v. National Labor Relations Board, 107 F. ( 2d) 555
(C. C'A. 7), enf as mod , Matter of Montgomery Ward & Company and Reuben Lit^en-
berger, et al, 9 N. L. R . B. 538.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was the official interpreter for the local consisting of the re-
spondent's employees. Burrola also acted as interpreter for other
locals of the Union in the vicinity of Gallup, and assisted Stucker not
only in organizational activities involving the respondent's employees,
but also the employees of other coal mines. According to Stucker,
Burrola was the most active union member of all the discharged em-
ployees. Uhland admitted that he believed Burrola to be a union
member. Burrola was the oldest in point of seniority of the minors
discharged by the respondent, there being 44 younger men on the
respondent's revised seniority list. Of the aforesaid 44 miners, 14
were not discharged, and only 2 of the 14 belonged to the Union.
Of the 31 miners discharged, 13 or possibly 14 belonged to the Union.
In explaining the reason for Burrola's discharge, Uhland testified that
Burrola
... worked on the night shift and at the 7th East North entry
and we decided to shut that down and lay off the night shift
and as I stated previously, we had instructions to lay off from
seventy-five to a hundred men and when we laid off the night
shift Mr. Burrola would have come in the next group and would
have been laid off the following week; so that the only thing I
could have done would have been to let him go into some other
place for the three days that the mine was working and he would
have had to clean up the place and then be discharged; so we
let him go with the others.
Q. Now you say that you laid Burro]a off because you,were
laying off this night shift, is that right?
A. That's right.
Q. What did you do with the other people on the night shift?
A. Some of them were in the lay-off and others who had long
service with the company were given other places and other jobs.
Q. Put on the day shift?
A. Some of them.
TRIAL EXAMINER BOKAT. You didn't consider seniority, by
shifts, did you? That is, you lumped all the men together
regardless of whether they were on the day shift or the night
shift for the purpose of determining their seniority, did you not?
THE WITNESS. Yes, sir.
Uhland further testified that, if Burrola had been placed on the
day shift for the following week, as he should have been, Burrola
would have had comparatively little earnings for the 2 or 3 days
that the mine was then working in view of the fact that preparatory
work prior to the actual mining of the coal would have taken up much
GALLUP AMERICAN COAL COMPANY 835
of his time. In explaining why eight miners 16 listed immediately
below Burrola's name on the seniority list were not discharged,
although younger than Burrola, Uhland testified that a coal strike
in the East caused an unforeseen sudden increase in the demand for
coal the week following Burrola's lay-off, that this temporary increase
continued for a period of about 3 weeks, that the eight men in ques-
tion were needed to produce coal, and that after this period of time
no further discharges were made because, according to Uhland, "We
thought maybe there would be some men quit and we wouldn't have
to go through any more of the experience in laying off men because
it is not very pleasant."
It is therefore apparent that if Burrola had been placed on the
day shift even for a period of a week, as he might have been, he
would not have been discharged. Although Uhland indicated that
a place for Burrola to work could have been found for him on the
day shift, according to the uncontradicted testimony of Burrola,
Underground Superintendent Tom Husband told him "There is no
places to transfer you to on the day shift. You are going to be
laid off." This contradiction throws suspicion upon the stated motive
of the respondent in discharging Burrola a week prior to the time he
would ordinarily have been discharged. This came about, according
to Uhland, because of his ostensible solicitude for Burrola's welfare in
not being able to earn much money during the week that he should
ordinarily have worked. If Uhland was really concerned about
Burrola's welfare, it would seem obvious that he would have at least
asked Burrola whether or not he desired to work the extra week.
Furthermore the respondent's explanation for discharging Burrola
is based in part on its claim that it originally intended to discharge
more miners, but that it was interrupted in this plan by a sudden
increase in business. A survey of the lay-off as a whole does not
support this contention. Thus while the respondent followed a
seniority policy generally in making discharges in the lay-off, it did
not follow seniority within the lay-off. That is, while the miners
discharged were the youngest in seniority of all the miners in the
respondent's employ, the respondent did not discharge these miners
chronologically in order of their seniority within the group. Instead
it discharged some of the oldest miners of those discharged early in
the lay-off and some of the youngest toward the close of the lay-off.
Under such circumstances if the lay-off were interrupted before it
was completed a number of the older miners would have been dis-
15 Juan Cadeno, Pearl Heller, Concezio Pasqualone, Bernardo R. Varela, Julio Rivas Felix
A Flores, John Kezele, Telesfor Gabaldon.
448G92-42-xo1 32 54
836 DECISIONS OF NATIONAL LAEOR RELATIONS BOARD
charged out of turn and the younger miners retained in their place is
However, according to Uhland's own- testimony, except for Burrola,
the only miners who were retained who were younger than those dis-
charged were retained because of mistakes or because the respondent
intentionally made exceptions to its seniority policy. Thus, accord-
ing,to the respondent's own testimony, except for the case of Burrola,
the most active union member in the group considered for discharge,
no miner was retained in preference to a miner with greater
seniority because the lay-off was suddenly interrupted. This, we
believe; is persuasive evidence that the April lay-off did not represent
a lay-off interrupted before its completion, but rather a completed
undertaking. Burrola was the most active union member. In view
of the, iespondent's action in retaining eight employees possessing
less seniority than he, for which it offered no satisfactory explanation,
we` are convinced as was the Trial Examiner, that it was motivated
by Burrola's union membership and activity in selecting him for
discharge.
We find that by discharging George Burrola, the respondent has
discriminated in regard to his hire and tenure of employment, thereby
discouraging membership in the Union, and interfering with, re-
straining, and coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
`Lorenzo Hernandez was hired by the respondent in 1935 as a miner.
After working for several months, he quit. On January 15, 1937,
he. *as reemployed by the respondent. After working both as a
miner and as a nipper '17 he was given a steady job as a nipper.
He was discharged on April 24, 1939.
• Hernandez joined the Union in, February 1939. He provided his
car for transportation of members to union meetings and with his
brother-in-law, George Burrola, solicited members for the Union.
Uh'land,` the only supervisory official of the respondent who testified
at the hearing, denied that he knew or suspected that Hernandez
belonged to the Union. The respondent owned and maintained
houses for its employees at three camps near its mine known as
Gamerco, Navajo, and Gibson. It is apparent from all the testi-
mony that Stucker and those employees of the respondent who were
active in soliciting memberships for the Union made no attempt to
conceal their activities. In fact, the Ti nion obtained permission from
to Thus if the lay-off had been interrupted on April 20 , the respondent would have dis-
charged only the second , sixth , tenth, eleventh , twelfth, fourteenth , seventeenth , nineteenth,
twentieth, twenty-fourth, thirty-first, thirty-second, and forty-fifth miners from the bottom
of the seniority list and retained all the intervening 32 miners , many of whom possessed
less seniority than those discharged
17A nipper works on a string of coal cars hauled by an electric , locomotive. He works
in conjunction with the motorman , couples and uncouples the cars, and acts generally in
the capacity of a brakeman.
GALLUP AMERICAN COAL COMPANY 837
the respondent to hold weekly meetings in one of the respondent's
buildings in Gamerco. In view of these facts, and the further evi-
dence that Hernandez solicited members for the Union with his
brother-in-law, Burrola, who Uhland stated he believed belonged to
the Union, we find, as did the Trial Examiner, that the respondent
believed that Hernandez was a member of the Union.
Hernandez, as a nipper, was grouped with the "inside company
men" when the respondent considered which of such employees should
be laid off. Unlike the miners, the "inside company men" consisted
of employees who performed several different kinds of work. In
this connection, Uhland testified as follows :
TRIAL EXAMINER BO AT. And you took all the company men'
and listed their seniority ages and laid off some of the youngest
men there?
Tam WITNESS. Provided we could make shifts to retain
efficiency in the mine.
TRIAL EXAMINER BOKAT. What do you mean by that?
Tam WITNESS. Well, I couldn't lay off a timber man and put
a mule driver in his place; neither could I lay off a nipper or a
motorman and put a timberman in his place.
From the evidence it 'did not appear that Hernandez could do the
work of a driver, a motorman, or a timberman, and therefore his
seniority, for the purpose of comparison, could be considered only
as against other nippers. The evidence reveals that there was only
one nipper having less seniority than Hernandez, John Gonzales,
and he was laid off. Although some of the older "inside company
men" were transferred to the work of miners, and although
Hernandez was qualified to do mining work, there was no adequate
showing indicating that Hernandez was entitled to be transferred
to the' work of a miner. Under these circumstances, we find, as did
the Trial Examiner, that Hernandez vas not discriminatorily
discharged on April 24, 1939.
In September 1939, Hernandez received a message from Fellin to
apply to the mine for a job. According to his uncontradicted testi-
mony, which we credit, Hernandez went to the mine, where Fellin
told Superintendent Husband, "Here is a boy I want to put on. They
need some nippers down there." Despite Fellin's request, Husband
refused to hire Hernandez. However, at about this time, John Gon-
zales, who had less seniority than Hernandez, and who had been dis-
charged in the April lay-off, was rehired as a nipper by the respondent.
Gonzales did not belong to the Union. In regard to Gonzales, Uhland
testified as follows:
I
'
Q. Now when you hired John Gonzales as a nipper you say you
hired him to take the place of a man who was sick?
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. That's what I heard.
Q. How long did that man remain sick?
A. I don't remember that.
Q. Well, did he remain sick until July 1940?
A. I don't believe he did.
Q. Well, he returned to work as a nipper and you kept Gon-
zales on as a nipper, too?
A. Yes, he was on as a nipper.
Q. So you did have a vacant nipper place that you could have
put someone in if you wanted to?
A. Yes.
Uhland further testified that Gonzales happened to be down at the
warehouse one night when a nipper was sick and could not come to
work, and, after ascertaining from Husband that the latter could use
a nipper, he rehired Gonzales . Hernandez testified without contradic-
tion , and we find , that again in January 1940, he received a message
from Fellin that there was a position available for him at the mine,
that when he applied at the mine Fellin wanted to put him to work
because he needed some nippers, but that Husband refused to put
him on and informed Fellin, "Go make some nippers down there.
You've a lot of men down there." Under these circumstances , we find,
as did the Trial Examiner, that the respondent refused to rehire
Hernandez in September 1939 and again in January 1940 because of
Hernandez 's union membership and activities.
We find that the respondent by refusing to hire Lorenzo Hernandez
in September 1939 and January 1940 discriminated in regard to his
hire and tenure of employment , thereby discouraging membership in
the Union , and interfering with, restraining , and coercing its em-
ployees in the exercise of the rights guaranteed by Section 7 of the Act.
James Anaya worked for the respondent for about 6 months in 1934
as a miner and then quit., In September 1936 he was rehired by the
respondent as a nipper , and continued to work as such until February
1937 , when he again quit. On May 5, 1937 , Anaya was again rehired,
this time as a motorman . Lorenzo Hernandez was the nipper who
worked with Anaya. They were both discharged on April 24, 1939.
Anaya joined the Union in January 1939 and was one of the most
active of all the union members. Together with Antonio Cordova
and Joe Robles , two members of the organizing committee, he was
active in soliciting memberships for the Union . Uhland testified
that he believed Cordova was a union member, but denied that
he knew or believed Anaya belonged to the Union. In view of the
indefinite nature of Uhland's denials concerning his knowledge of
GALLUP AMERICAN- COAL COMPANY 839
union membership, as set forth below,18 the nature of Anaya's out-
standing union activity, and the circumstances surrounding the selec-
tion of Anaya for discharge, together with the respondent's refusal
to rehire him, as discussed hereinafter, we do not credit Uhland's
denial, and we find, as did the Trial Examiner, that the respondent
knew or believed that Anaya belonged to the Union.
Anaya was the only one of 12 motormen included in the April
lay-off. Three- "inside company men" with less seniority than
Anaya were not discharged, one 20 of whom was a motorman. These
three employees were not members of the Union. Only four 21 "in-
side company men," including Anaya, were involved in the' April
lay-off. John Gonzales, the only one of these'four men who was not
'a union member, was rehired on October 3, 1939, as described above.
In regard to the "inside company men," Uhland testified that "We
tried to lay-off the newest company men, the ones we could spare
better, . . . provided we could make shifts to retain efficiency in
the mine." Despite the fact that Uhland gave testimony, as far as
the miners were concerned, seeking to explain why each of the men
younger in' seniority was not discharged while older miners were or
offering excuses for the failure so to explain, he gave no similar
explantion in regard to the "inside company men." In other words,
he gave no explanation as to why Manuel Baca, a non-union employee
and a motorman, was retained while Anaya, an older man and a
motorman, was discharged. The respondent made no contention that
Anaya was inefficient -or that Baca was more efficient than Anaya.
Although there was no such testimony at the hearing, the respondent
claims in its brief that it discharged Anaya because it was under the
misapprehension that he was a nipper and not a motorman. It is
clear from Anaya's testimony, however, that both Husband, the mine
superintendent, and Fellin, Anaya's foreman, knew of his discharge
in advance, and it would seem that, had Uhland been misled by an
18 Uhland testified, in part, as follows concerning his knowledge of union members :
Q. And did anyone that was in your employ or otherwise come to you and tell you
of any particular men who attended those [union] meetings?
A. No, I don't think they did.
Q. -did you ever have any knowledge or information as to which men in your
employ belonged to the United ]Mine Workers of America or any other union?
A. No, I had no definite information. I 'have to qualify that by saying that I
thought that Antonio Cordova and one or two others I saw with Mr. Stucker on the
streets in Gallup, or in other places or other parts of the locality might have belonged.
s s s s s
Trial Examiner BOKAT. Did you ever receive any reports from any of your subordi-
nates or anybody else concerning the possible union affiliations of the names (com-
plainants) just mentioned by your attorney?
The WITNESS. I don't remember any such reports.
19 Jake Marhur, Sixto Valenzuela, Manuel Baca.
11 Manuel Baca.
21 L. Hernandez, James Anaya, John Gonzales, A. J. Cordova.
S40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
error in the seniority lists, these supervisory employees would have
informed him of his error. Furthermore, in view of the fact that
,the respondent employed only 12 motormen, it is likely that had it
discharged a motorman whom it intended to retain in the erroneous
-belief that he was a nipper, the consequent disruption in production
that would have followed would have promptly caused it to discover
its error.22 The respondent's explanation for its action in discharging
Anaya and retaining Baca accordingly must be rejected. Under these
circumstances the retention of Baca over Anaya constituted an unex-
-plained violation of the respondent's declared seniority policy and we
find, as did the Trial Examiner, that Anaya was discharged because
.of; his union membership and activity.
The circumstances surrounding the respondent's refusal to rehire
Anaya subsequent to his discharge lend support to the above con-
,clusion. Anaya sought reinstatement on several occasions, the last
time being in January 1940, when he applied to Superintendent
Husband for a job. He was not rehired, although the respondent, on
January 22,1940, gave Hugh Fraser a job as a motorman. Fraser
had worked for the respondent for several years prior to May 5,
•1927, when he was transferred to the respondent's store. He worked
there until November 11, 1939, when, according to Uhland, "Due to
too much drinking I had to tell him that he couldn't longer work
in the store because I couldn't maintain discipline under those con-
ditions but that I would endeavor to give him something in the
mine.. 'He was experienced underground and when we had an
opportunity 'we put him on." 23 The respondent contended that it
kept no list of men who applied for jobs and it never followed the
practicer of sending for applicants when jobs became available.
22 In this connection Uhland's testimony, quoted above, to the effect that efficiency dic-
tated that the respondent should not follow a strict seniority policy among "inside com-
pany men" 'because it could not "lay off a nipper or a motorman and put a timberman in
his place" is significant.
Uhland testified further concerning Hugh Fraser as follows :
Q. Is there any danger in having a man who is drunk running a motor?
A. Yes.
Q. Is there any danger in having a man who is drunk working in the store?
A Well, there might be.
Q What sort of danger?
A Well, we don't want him drunk in either place
t h p F
Q. Who was the man who was too drunk to work in the store?,
A. He wasn't too drunk to work in the store. He never appeared around the store
drunk.
Q. Well, why did you take him out of the store?
A. Because he drank in the evenings and didn't show up for work the next day.
Q. You thought that he was all right ;he could do that in the mine?
A. No, I didn't.
Q. Well, you put him to work in the mine, didn't you?
A. Yes. He won't go in if he s drunk though.
Q He didn't go into the store either if he was drunk, did he 9
A. No.
GALLUP AMERICAN-COAL, COMPANY 841
It also contended that since June 1938, Uhland was the only official
tivho had authority to hire new employees. but admitted that appli-
cants generally followed the old practice of applying to Husband,
and that Husband would send them to Uhland or tell them that
there was no work available. Husband was in a better position
than Uhland to know whether or•not a job was available and, if one
were available, could send the applicant to Uhland to be hired:
Under all these circumstances the respondent's action in employing
Fraser as a motorman' when he had not worked in such capacity
for 12 years and had been discharged from his most recent position
with the respondent for drunkenness, in preference to Anaya, who
had recently worked at that position and whose efficiency is not
questioned, must be attributed to Anaya's union membership and
activity and serves further to support the conclusion reached above
that Anaya was discharged because of his union membership, and
activity.
We find that by discharging James Anaya, the respondent has
discriminated in regard to his hire and tenure of employment, there-
by 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. -
D. Other discharges
Antonio T. Ponce was employed by the respondent as a miner in
February 1937 and worked, as such until January 1939, when he
was notified that his sister in Mexico was very sick. He thereupon
obtained a leave of absence from the respondent to visit her. In
order to facilitate his reentry into the United States, Ponce requested
a letter of identification. Uhland gave him a letter which read as
follows :
JANUARY, 25, 1939.
To WHOM rr MAY CONCERN :
This is to certify that the bearer, Antonio Ponce, has' been
in the employ of Gallup American Coal Company since Feb-
ruary 1937, in the capacity ,of coal miner. His services have
been satisfactory and he has asked for a leave of absence in
order to visit in Mexico.
Ponce joined the Union in November 1938. Prior to his trip to
Mexico, he had taken no active part in the Union. If, Ponce had been
working for the respondent during April 1939, he would not have
been one of the miners selected for discharge because of his seniority.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Up to the time of the strike in May 1939,24 the evidence is insuffi-
cient to warrant a finding that the respondent had knowledge of
Ponce's union membership. However, Ponce was on the picket line
during the strike. Although Uhland denied that he became aware
of Ponce's union affiliation at that time, the Trial Examiner did
not credit his denial. In view of the ambiguous nature of Uhland's
denial, we find that the respondent became aware of Ponce's union
affiliation during the strike. About March 23, 1939, when Ponce
first reapplied for work after he returned from Mexico, he was told
by Husband that there was no work available but to continue to
apply, which he did until shortly before the strike. However, after
the strike when he applied for work, Husband told him that "there
was no reason for me to stick around because they wasn't going to
hire any more people." As noted above, Ponce left on his leave of
absence in late January. According to the respondent's records
Ponce was not marked dropped until June 15, 1939. We find that
it was not until sometime after the strike that the respondent made
up its mind not to reemploy Police.25- Subsequent to the strike, Ponce
applied for work on several occasions, the last time being in Septem-
ber 1939, but on each occasion he was informed that there was no
work available for him.
Several miners who had been on leave of absence in the past were
not discharged in April although their service ages, according to the
respondent's original seniority list, made them eligible for discharge.
With regard to these miners, Uhland explained that they had obtained
leaves of absence with the consent of the respondent, that he considered
their seniority began prior to such temporary "breaks," and that their
seniority was therefore sufficient to justify retaining them. It is thus
apparent that the respondent had followed the practice and policy of
granting leaves of absence to its employees and of reinstating them
upon their return to work.
Since the April 1939 lay-off, the respondent's records show that 22
employees 26 were hired, only 2 27 of whom appear to be union members,
and-Uhland testified that he was unaware of their union membership.
a In May 1939 , there was a nation-wide coal strike in which a number of the respondent's
employees participated.
2 The respondent 's claim that the notation "dropped" merely indicates that an employee
was dropped from its unemployment compensation commission reports does not explain
why it did not delay 5 months in dropping other employees from its reports
Guillermo Cortez, Carrateno Masci, Joe G. Ortiz, Casiano Chavez, Hugh Fraser, Jose
P. Gallegos , Loretto Gonzales , Dante Guadagnoli , Nicandro Guadagnoli , George l iikmeyer,
Jose O. Molino, Pete Perales . Jesus Quintana , Antonio Di Angeles, Rosindo Di Angeles,
Augustine Di Santis, Joe Colianni , John Gonzales , Thomas Mora, Joe Murphy, Augustine
Perez, Frank Talley.
n Jose P. Gallegos , Loretto Gonzales.
GALLUP AMERICAN COAL COMPANY 843
Of these 22 employees, 18 28 were hired as miners, 3 29 of whom had
never previously worked for the respondent. At least four miners 30
having less seniority than Ponce were reemployed by the respondent
prior to Ponce's last application for work in September 1939. Upland
testified that although he received general instructions following the
April lay-off that he was not to take on any new employees, he made
exceptions in the cases of these 22 men, and gave detailed testimony
as to why he employed each of them. According to his -explantion,
5 31 of the 22 employees were rehired as miners because they had been
given leaves of absence. Uhland had difficulty in attempting to
explain his failure to rehire Ponce in view of this established practice
of the respondent, and intimated that it was because he had not given
Ponce "any extended leave of absence." 32 The respondent did not
contend that Ponce was given only a limited leave of absence; actually,
he was gone for only about 2 months. Furthermore, the letter given
to Ponce by Uhland, as set out above, does not state that Ponce's
employment with the respondent had been terminated either volun-
tarily or otherwise, and aside from the aforesaid letter, the testimony
of both Ponce and Uhland shows that the former requested and the
latter granted a leave of absence. Clearly implied therein was the
respondent's promise, under normal conditions, to restore Ponce to
his position upon his return from Mexico. Since, subsequent to the
April lay-off, the respondent reinstated at least five employees because
they had previously been given leaves of absence, we find, as did the
Trial Examiner, that the refusal to reinstate Ponce must be ascribed
to his union membership and activity.
We find that by discharging and refusing to reemploy Antonio T.
Ponce, the respondent has discriminated in regard to his hire and
tenure of employment, thereby discouraging membership in the Union,
28
Guillermo Cortez, Carrateno Masci, Joe G. Ortiz , Cassano Chavez , Jose P. Gallegos,
Loretto Gonzales , Dante Guadagnoh , Nicandro Guadagnoli , George Kirkmeyer , Jose O.
Molino, Pete Perales, Jesus Quintana , Antonio Di Angeles, Rosindo Di Angeles , Augustine
Di Santis, Joe Colianni, Thomas Mora, Augustine Perez
19 Guillermo Cortez, Carrateno Masci, Joe G Ortiz
SO Nicandro Guadagnoh , Antonio Di Angeles , Rismdo Di Angeles , Joe Colianni.
81 Jose P. Gallegos , Loretto Gonzales , George Kirkmeyer , Jose O. Molino, Jesus Quintana.
31 In this connection , Uhland testified about the comparable case of a miner by the name
of Nick,Di Santis, as follows :
Q. When did be [Di Santis ] leave the employ of the company in 1938?
A. He left here some time in the first part of February 1938 with a leave of absence
to go to Italy.
Q. And when did he return?
A. He returned the first of April 1939.
Q. And you put him to work?
A. Yes, sir.
Q. He was a miner?
A Yes, sir we had told him that when he came back he could go to work.
Q You told Ponce the same thing, didn't you?
A. No, sit, we didn't give him any extended lease of absence
844 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
and interfering with, restraining , and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
' John Portley was hired by the respondent as a miner in about
February 1937 , and last worked for the respondent in about July 1939.
Portley testified that in May 1939 the ,place he was assigned to work
with his partner , Tony Mutto, "was awful bad. I couldn't make Ja
living in it,." He asked his foreman to transfer him to another place
to work. Although Mutto 33 was transferred to a more profitable
place, Portley was informed ' by Fellin , his foreman , that there was
no place available for him at ' that time. After working, alone,for
about a month , Portley was transferred to "work on a• pillar with
three other fellows " and'they "worked there three days 'and it caved."
Although the miners who were working with Portley at the'time'of
the cave-in were transferred to other places to work; Portley was -in-
formed that there was no place available for him. Portley continued
to live in the company camp ' at Navajo until October 1939 ,' during
which time he was informed that there was no work available for him.
In November 1939 he moved from the company camp.
Uhland testified that , he became assistant to the manager in June
1938, and at about that time began ' to receive complaints "through
the 'foreman . . . that his [Portley 's]' body odor was' so strong that
you could hardly get anybody to work'with him, and the company men
complained when they went into his place that the odor was so bad
it made them sick. " Uhland further related that when Portley had
extracted all the coal from the place in which he was then working
and was to be given a new place , Superintendent Husband'
said he had difficulty in doing that because nobody wanted
to work near him. I told him to keep on trying to find 'a new
place for him and try to put him on the return air if possible,
where he might not be offensive to other people.
In the , meantime I got Mr. Portley up in the office and also
Mrs. Portley and I 'talked to Mrs. Portley and I asked her if she
could do anything to eliminate the odor. She said that he took
baths regularly . Then I suggested that he ' go to see the doctor
to see if there might be some disease that was causing this terrible
odor and that we would try to find the cause of it so the man could
go back to work. He left the camp shortly after that and I didn't
see him again.
Uhland's testimony regarding Portley's offensive body , odor was
corroborated by the company doctor, who had examined him,, and a
motorman who occasionally worked near Portley. Nevertheless, Port-
ley had worked in the respondent 's mine for more than 2 years, during
33 According to the Union's records, Mutto was a member of the Union
' ' r , t GALLUP' AMERICAN .-COAL ^ COMPANY ' 1-1 845'
which time apparently no complaint with regard to,his body odor was
made Ad him, and, furthermore, it appears that he had worked for
the'respondent for, more than a year before any complaint about his
body odor was made to it. It seems extremely doubtful that the
respondent. would have tolerated him for so long a time if there had
actually been as many complaints about him as the respondent claims.
Iii "addition, there was no testimony that Mutto, who had been working
with Portley_•for some time, had ever complained about his-body odor.
It therefore appears that these ' two men could have been teamed
together again at the time Mutto was transferred to another working
place. Furthermore, although most of the miners worked in pairs,
Uhland, in reply to a question on cross-examination as to whether or
not Portley could have worked in a place without d partner, replied :
"But the fellows on the intake'air would certainly have kicked about
it." ' Whether the other employees would. have so complained is con'-
jectu'ral. Moreover; Uhland, on direct examination, testified that he
told Husband to try to put Portley on the "return air if possible
where he m'igh't not be offensive to the other people." ' There is no
evidence' that Husband tried to put Portley on the "return air."
Uhland 'testified further on cross-examination as follows :
Q. , You do have people working single out there?
A. Yes. , In certain parts of the mine, conditions are such that
one, man in.the place can work there, can't load enough out of
that one,place for, two men. , , ,
Q. Why couldn't Portley work on one,of, those, places?
A. Because we didn't have one that was suitable for him.
Uhland made no'explanation of what he meant by not having a "'suit-
able'?-working place for Portley.
Uhland denied that he knew or believed Portley, to be, a member
of the Union, and there was' evidence that Portley was not active
during the strike. However, Portley, had joined the Union in Sep-
tember 1938 and,, according to, his testimony; helped organize other
employees by talking "with them and went to houses with Mr. Earl
Stucker and talked with some of them." Furthermore, Stucker testi-
fied that the night before the strike began,' he visited' the homes of
many, of the union members, particularly the active union men.
Stucker visited- Portley's home that night, and told him to remain
away from work the following day, but did not request that he appear
on the picket line. Stucker also testified that Portley attended union
meetings on the afternoon and evening of May 9.
'It appears from all the evidence and we find, as did the Trial Exam-
iner, that Portley was 'an active, union member and that the respondent
knew which of its employees were active in the Union. In view of
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these facts, and in view of Upland's unpersuasive statement of the
reasons why Portley was not retained, we find, as did the Trial Exam-
iner, that Portley was discharged because of his union membership
and activity. 34
We find that by discharging John Portley, the respondent discrim-
inated in regard to his hire and tenure of employment, thereby
discouraging membership in the Union and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
E. The alleged discriminatory lay-offs
The Trial Examiner in his Intermediate Report found that the
evidence did not sustain the allegations of the complaint that the
respondent had discriminated against Charles Frkovich, Serapio Cal-
villo, Ivan Cochran, Kenneth Cochran, and Antonio Cordova because
of their union membership and activities. The Union has filed no
exception to this finding and did not appear at the oral argument.
We have examined the evidence and we agree with the finding of
the Trial Examiner in regard to Frkovich, Calvillo, the Cochrans, and
Cordova.
We find that the evidence does not sustain the allegation of the
complaint that the respondent discharged and refused to reinstate
Charles Frkovich, Serapio Calvillo, Ivan Cochran, Kenneth Cochran,
and Antonio Cordova because of their membership in or assistance
to any labor organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III B, C,
and D, above, occurring in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing,
commerce and the free flow of commerce.
s1 The respondent claims that it did not discharge Portley, but was merely seeking
more suitable employment for him . For 3 months after it first refused to employ him,
the respondent refused Portley 's repeated applications for employment , although it hired
other men to do similar work. At the time of the hearing some 15 months after the
original refusal to employ, it still had not reemployed Portley, nor was there any showing
that it had made any effort to do so. We have found the respondent 's excuse for its
failure to reemploy Portley to be false. In the absence of a showing that it always evicted
discharged employees, the respondent 's failure to evict Portley from his company-owned
home would appear to be immaterial . Under the circumstances , the respondent's action
must be held to constitute a discharge . Furthermore , it is immaterial whether Portley
was laid off or discharged . If the respondent was motivated by Portley' s union activity
or membership , its action would constitute a violation of Section 8 (3) in either case
GALLUP AMERICAN-COAL COMPANY
V. THE REMEDY
847
Having found that the 'respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom, and
that it take certain affirmative action in order to effectuate the
policies of the Act.
We have found that the respondent discriminatorily terminated
the employment of Celso Esparza, George Burrola, James Anaya,
Antonio T. Ponce, and John Portley, and discriminatorily refused
to rehire Lorenzo Hernandez. We shall therefore order that the
respondent offer to these men immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges.
We shall also order the respondent to make whole Celso Esparza,
George Burrola, Lorenzo Hernandez, James Anaya, Antonio T.
Ponce, and John Portley for any loss of pay they have suffered
by reason of the discrimination against each of them, respectively,
by payment to each of a sum equal to the amount which he normally
would have earned as wages from the date of the discrimination
against him to the date of the offer of reinstatement, less his net
earnings during said period S.35
In the Intermediate Report, the Trial Examiner recommended that
"Hernandez be reinstated with back pay from ... the date on which
Gonzales was hired." We see no reason why back pay should not ac-
crue from the time of the respondent's discrimination against Her-
nandez during the second week in September. In Ponce's case, back
pay shall accrue from June 15, 1939, the date he was marked "dropped"
on the respondent's records.
Having found that the allegations of the complaint have not, been
sustained in respect to Charles Frkovich, Serapio Calvillo, Ivan
Cochran, Kenneth Cochran, and Antonio Cordova, the complaint shall
be dismissed as to them.
Upori the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America, District No. 15, affiliated with
the Congress of Industrial Organizations, is a labor organization,
within the meaning of,Section 2 (5) of the Act.
'By "net earnings " is meant earnings less expensive , such as for transportation , loon,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but for his un-
la« ful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B. 440. ,Monies
received for work performed upon Federal, State, county, municipal or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v. National Labor
Relations Board, decided by United States Supreme Court, November 12, 1940
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employment
of Celso Esparza, George Burrola, Lorenzo Hernandez, James Anaya,,
Antonio T. Ponce, and John Portley, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Sec-
tion 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not engaged in unfair labor practices within
the meaning of the Act with respect to Charles Frkovich, Serapio
Calvillo, Ivan Cochran, Kenneth Cochran, and Antonio Cordova.
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 respond-
ent, Gallup American Coal Company, Gamerco, New Mexico, and its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Mine Workers of America,
District No. 15, or any other labor organization of its employees, by
discharging, laying off, or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire and
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 right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Celso Esparza, George Burrola, James Anaya, Lorenzo
Hernandez, Antonio T. Ponce, and John Portley immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges;
(b) Make whole each of the employees named in the preceding
paragraph for any loss of pay he may have suffered by reason of the
respondent's discrimination against him by payment to him of a sum
of money equal to that which he would normally have received as wages
from the date of the respondent's discrimination against him to the
. GALLUP (AMERICAN ; COALi COMPANY 849
date. of the respondent's offer of reinstatement, Jess his net earnings
during said period;
(c) Post immediately in conspicuous, places at its Gamerco, New
Mexico; premises, and maintain for a period of not less than sixty
(60) consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; and (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a) and (b), of this Order; and (3)
that its employees are free to become or remain members of United
Mine Workers of America, District No. 15, and that the respondent
will not discriminate against any employee because of membership or
activity in that organization ;
(d) Notify the Regional Director for the Twenty-second Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply therewith, and
IT Is FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent discriminatorily
discharged Charles Frkovich, Serapio Calvillo, Ivan Cochran, Ken-
neth Cochran, Antonio Cordova, and Benigno Jiminez.
EDWIN S. SMITH , dissenting in part:
The majority finds, and I agree with the finding, that Superintendent
Husband refused to hire Cordova in 1937 because of his previous union
activity.36
The majority fails to find, however, that the refusal constituted an
unfair labor practice within the meaning of Section 8 (1) of the Act
because such refusal was not specifically alleged in the complaint. The
action of Husband in refusing to employ Cordova was a clear infringe-
ment upon employees' rights in contravention of Section 8 (1) of the
Act and I would so find. Although the complaint does not specifically
allege as an unfair labor practice the discriminatory refusal to employ
Cordova the complaint is no more specific with reference to other acts
which, the majority does not hesitate to conclude, constitute violations
of Section 8 (1) of the Act.
The finding I would make with respect to the respondent's treatment
of Cordova is similar to a finding made by the Board upon identical
pleadings in Matter of Fort Wayne Corrugated Paper Company."7
"Cordova was later given employment through the intervention of General Manager
Moses because , as the Board finds , "it would probably be best to give him a job there
so that he would keep his mouth shut instead of going around trying to organize our men "
i''Matter of Fort Wayne Corrugated Paper Company and Local No. 182, International
Brotherhood of Pulp, Sulphate and Paper Mill Workers, 14 N. L R B 1. It should be
noted that in this case the Board affirmatively ordered reinstatement and back pav for
an employee who, the Board found, was unlawfully demoted. See also Matter of Albert
Bart8on and Textile Workers' Organizing Committee, 23 N. L. R B 666; Matte? of
David Kahn, Inc. and Committee for Industt ial Organization, 14 N. L R. B. 299.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An order based upon such a finding was enforced in National Labor
Relations Board v. Fort Wayne Corrugated, Paper Company 88 I find
no warrant either in Board precedent or Court pronouncement for the
technical restriction which the majority of the Board places upon the
pleadings in this case.
-111 F. ( 2d) 869 (C. C. A. 7).