Idarado Mining Co.

National Labor Relations Board - Board Decisions

Apr 29, 1948

77 N.L.R.B. 392 (N.L.R.B. 1948)

In the Matter Of IDARADO MINING COMPANY and LOCAL UNION No.
13081, DISTRICT 50, UNITED MINE WORKERS Or AMERICA,
Case No. 17-C-1370.-Decided April 29, 1948
Air. Harry L. Browne, for the Board.
Messrs. Pershing, Bosworth, Dick & Dawson, by Messrs. Samuel S.
Sherman, Jr. and Michael E. Reidy, of Denver, Colo., for the re-
spondent.
Mr. Frank N. Price, of Denver, Colo., for the Union.
DECISION
AND
ORDER
On April 28, 1947, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto.' Thereafter, the respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
The Board 2 has reviewed the rulings made by 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 brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
The lawfulness of the respondent's discharge of Miller depends on
whether, under the terms of the maintenance-of-membership clause,
Miller was obligated to become a member in good standing of the
Mine Production Workers after his reemployment by the respondent.
' Those provisions of Section 8 (1) and 8 ( 3) of the National Labor Relations Act, which
the Trial Examiner found were violated, are continued in Section 8 (a) (1) and 8 (a) (3)
of the Act, as amended by the Labor Management Relations Act, 1947.
3 Pinsuant to Section 3 (b) of the Act , as amended, the National Labor Relations Boatd
has delegated its powers in connection with this proceeding to a thiee-man panel consisting
of Chairman Herzog and Members Houston and Reynolds
77 N. L. R. B, No. 64.
392
IDARADO MINING CO MPANY 393
The contracting parties might have made provision for the present
situation in their agreement. But as we read the maintenance-of-
membership clause, they did not do so. The obligation under the
contract to remain a member in good standing of the contracting
union rested on employees. When Miller severed his. employment
relationship with the respondent, his obligation to remain a member
in good standing of the Mine Production Workers ended at the same
time. The obligation was not merely suspended, ready to be imposed
at any time in the future that Miller might be again employed by
the respondent. On his reemployment by the respondent, in a new
position and as a new employee, approximately a year after he had
voluntarily resigned from the respondent's employ,3 Miller's status
was like that of any other new employee; he was required to remain
a member in good standing of the Mine Production Workers only if
he voluntarily rejoined that organization after his reemployment.
This he did-not do.
Accordingly, we find, as did the Trial Examiner, that by discharg-
ing Charlie Miller on or about February 22, 1946, and by thereafter
failing to reinstate him, the respondent discriminated in regard to
his hire and tenure of employment, thereby encouraging membership
in Mine Production Workers of San Juan, Triangle Union Local No.
23667, A. F. L., and discouraging membership in Local Union No.
13081, District 50, United Mine Workers of America, in violation of
Section 8 (3) of the Act, and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act, in violation of Section 8 (1) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, Idarado Mining
Company, Ouray, Colorado, and its officers, agents, successors and
assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Local Union No. 13081, District
50, United Mine Workers of America, or in any other labor organiza-
tion of its employees or by encouraging membership in Mine Pro-
duction Workers of San Juan Triangle Union Local 23667, affiliated
with the American Federation of Labor, or in any other labor organ-
There is no contention in this case that Miller' s resignation was not bona fide, in the
sense that it was for the purpose of evading his obligation to maintain membership in the
contracting union. When that question arises , it can be decided , like any other question,
on the evidence presented.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zation of its employees, by discharging and refusing to reinstate any
of its employees or in any other manner discriminating in regard
to their hire and tenure of employment or other terms and condi-
tions of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local Union No. 13081, District
50, United Mine Workers of America, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Charlie Miller immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to his
seniority and other rights and privileges;
(b) Make whole Charlie Miller 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 the amount which he
normally would have earned as wages during the period from the
date of his discharge to the date of the respondent's offer of reinstate-
merit, less his net earnings during such period;
(c) Post at its mine at Ouray, Colorado, copies of the notice at-
tached to the Intermediate Report, marked "Appendix A."'' Copies
of said notice, to be furnished by the Regional Director for the Seven-
teenth Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after, 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 ;
(d) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
MEMBER REYNOLDS , dissenting :
4 Said notice, however, is amended by striking from the first paragraph thereof the words
"Recommendations of a Trial Examiner" and substituting , in lieu thereof , the words "A
DECISION AND ORDER " In the event this Order is enforced by decree of a Circuit
Court of Appeals , there shall be inserted before the words "A DECISION AND ORDER,"
the words : "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS
ENFORCING."
IDARADO MINING COMPANY 395
I am unable to agree with the view of my colleagues that Miller
can relieve himself of an obligation, voluntarily assumed, to maintain
membership in his collective bargaining representative during the
effective period of a contract negotiated between such representative
and his employer.
Under the clear terms of the contract, Miller was free from Sep-
tember 21, 1944,5 until October 6, 1944,6 to choose whether to with-
draw from the Mine Production Workers or remain a member in
good standing as a condition of employment by the respondent during
the subsequent life of the contract. Miller freely made the latter
choice with notice that the contract, by its terms, was to remain in
full force and effect until July 1, 1945, and from year to year there-
after, in the absence of contrary notice by either party, without any
new escape period being provided. The contract was clearly valid.
Since Miller had notice of the renewal provision of the contract, and
elected at the end of the escape period to be bound by it, as well
as by the maintenance-of-membership provision, I cannot agree that
he should now be protected in his subsequent refusal to comply with
his commitments.7 Nor can I attach any significance to the fact that
a new employment relationship was established when Miller returned
to the respondent's employ as a watchman. That job, as well as his
former job as an electrician, was in the unit covered by the contract.
As stated in the majority opinion, "the obligation under the con-
tract to remain a member in good standing of the contracting union
rested on employees." But the fact, which I feel that my colleagues
have overlooked, is that employees are also individuals. As such in-
dividuals when reemployed by the respondent, their obligations fairly
assumed cannot be so lightly disregarded. Otherwise the union se-
curity clause would become inoperative as to every employee, other-
wise bound, who resigned or was discharged, even if for only a day,
5 The date upon which the contract was executed.
6 The end of the escape period provided in the contract.
' The situation here involved is quite different from that In Matter of Colonie Fibre
Company, Inc, 69 N L R. B. 589, amended 71 N. L R. B. 354. In that case an employer
and a contracting union endeavored to set an escape period antedating the execution of
the contract. Enforcement of that contract would have permitted the parties to require
membership in the union during a period in which there was no contract No such result
is reached in the instant case where the contract, at the time of Miller's discharge, was
simply a renewal and uninterrupted continuation of the existing contract by which Miller
had elected to be bound.
It should also be noted in the instant case that if Miller had remained continuously in
the respondent's employ, lie would have been free at an appropriate time, near' the end
of the first term of the contract, to work for a change in the bargaining representative
without being subject to discharge for his efforts; Matter of Rutland Court Owners, Inc,
44 N. L R. B. 587. But Miller would not have been free even then, while the contract
remained in force, to refuse to keep himself in good standing with the Mine Production
workers by the payment of dues; Cf majority opinion in Matter of Lewis Meier & Company,
73 N L. It B. 520.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was subsequently rehired. I cannot logically so interpret the
contract . In my opinion , Miller's refusal , while the contract remained
in force, to comply with provisions by which he had previously
elected to be bound required that the respondent discharge him in
the performance of its own obligations under the contract . I would
dismiss the complaint herein.
INTERMEDIATE REPORT
Dlr. Harry L. Browne, for the Board.
Messrs. Pershing, Bosworth, Dick & Dazoson, by Messrs. Scvnbuel S. Sherman,
Jr. and Michael E Reidy, of Denver, Colo, for the respondent.
Mr. Frank N. Pi ice, of Denver, Colo, for the Union.
STATEMENT OF TRF CASE
Upon an amended charge duly filed on March 4, 1946, by Local Union No. 13081,
District 50, United Mine Workers of America, herein called the United Mine
Workers, the National Labor Relations Board, herein called the Board, by its
Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its
complaint dated January 29, 1947, against Idarado Mining Company, Ouray,
Colorado, herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 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
and the amended charge, together with a notice of hearing thereon, were duly
served upon the respondent and the United Mine Workers.
With respect to the unfair labor practices the complaint alleged in substance
that the respondent on or about February 17, 1946, discharged Charlie Miller,'
and thereafter refused to reinstate him because he joined and assisted the United
Mine Workers and engaged in other concerted activities for the purpose of col-
lective bargining and other mutual aid and protection, and for the further
reason that he refused to join and assist Mine Production Workers of San Juan,
Triangle Union Local No. 23667, affiliated with the American Federation of Labor,
herein called the Mine Production Workers.
On or about February 7, 1947, the respondent filed its answer admitting its
corporate existence and the extent and nature of the business transacted by it
but denying the commission of the alleged unfair labor practices.
Pursuant to notice, a hearing was held on February 18, 1947, at Denver, Colo-
rado, before the undersigned, Howard Myers, the Trial Examiner duly designated
by the Chief Trial Examiner. The Board and the respondent were represented
by counsel ; the United Mine Workers by a representative. All parties partici-
pated in the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence relevant to the issues.
At the conclusion of the Board's case-in-chief, counsel for the respondent moved
to dismiss the complaint for lack of proof. The motion was denied. At the con-
clusion of the taking of evidence, motions to conform the pleadings to the proof
Were granted. Counsel for the respondent then moved to dismiss the complaint
for lack of proof. Decision thereon was reserved. The motion is denied. Oral
I Erroneously referred to in the complaint and other formal papers as "Charles Miller."
IDARADO MINING COMPANY 397
argument, in which Board's counsel and counsel for the respondent participated,
was then heard. The parties were advised that they might file briefs and/or
proposed findings of fact and conclusions of law with the undersigned within
5 days of the close of the hearing. Neither briefs nor proposed findings of fact
and conclusion of law have been filed.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Idarado Mining Company, a Delaware corporation, has its principal office at
Ouray, Coloi ado, and its place of operations at Red Mountain, Colorado. The
respondent, during all the times material herein, has been, and now is, engaged
in mining and milling of copper, lead, and zinc concentrates and in the sale and
distribution thereof. During 1946, the respondent's sales amounted to approxi-
mately $500,000, of which approximately 75 percent represented products sold
and transported to points located outside the State of Colorado.
The respondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATIONS INVOLVED
Local Union No. 13081, District 50, United Mine Workers of America and Mine
Production Workers of San Juan Triangle Union Local No. 23667, both affiliated
with the American Federation of Labor, are labor organizations admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
Interference, restraint , and coercion; the discharge of Charlie Miller
1. Sequence of events
On August 7, 1944, following Agreements for Cioss-checks in Cases 17-R-948
and 17-It-943, the Board's Regional Director for the Seventeenth Region issued
and served upon the parties to those proceedings his reports of the results of
the cross-checks in which he found that the International Union of Operating
Engineers , Mine, Mill and Smelter Workers of Colorado, Local 400, affiliated
with-the American Federation of Labor, represented, for the purpose of collective
bargaining , all the operating engineers and welders including motormen, me-
chanics and compressor inen, employed by the respondent at Ouray, Colorado,
except supervisors, and that Mine Production Workers represented, for the pur-
poses of collective bargaining, all the production and maintenance workers em-
ployed by the respondent at its Treasury Tunnel Mine, Ouray, Colorado, exclusive
of mechanics, welders, operating engineers, clerical workers, professional techni-
cians, boarding house workers, and supervisors.
On September 21, 1944, the respondent entered into a single collective bargain-
ing contract with the two above-named unions. The contract reads in part as
follows :
Article 1
The Company recognizes the Unions as the exclusive bargaining Agents
for its employees and it is mutually agreed that the term "employees" for
the purpose of this Agreement shall not include the administrative, executive,
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisory, office or technical forces of the Company, or boarding house
workers.
Article 2
All employees who on October 6, 1944 are members of the Unions in good
standing in accordance with their respective constitutions ana by-laws, and
all employees who become members after that date shall, as a condition of
employment, maintain their membership in the Unions in good standing
for the duration of this agreement.
Charlie Miller, one of the respondent's electricians, joined the Mine Produc-
tion Workers on or about May 28, 1944, and paid dues for June and July 1944,
but not thereafter. Notwithstanding the provisions of the constitution and
by-laws of the Mine Production Workers might be construed differently, it was
stipulated by the parties that Miller was a member in good standing in that
Union on October 6, 1944, in accordance with that organization' s constitution and
by-laws, adopted February 2, 1945, and in accordance with the interpretation
of the parties of Article 2 of the collective bargaining contract then in force
between the respondent and the two contracting unions.
On or about November 20, 1944, Miller voluntarily left the respondent's
employment.
By reason of Article 3 of the contract of September 31, 1944,2 the said contract
was in full force and effect for the period ending July 1, 1945, and thereafter
from year to year unless notice of the desire to change the terms of the contract
be given by any party to the other parties prior to any anniversary date. No
notice of the desire to change the said contract was given by any of the parties
on or before July 1, 1945, or thereafter, and therefore the said contract remained
in full force and effect for the year ending July 1, 1946.
On or about November 17, 1045, Miller applied to the respondent for a job as
a watchman. He was hired as such the same day. Two or three days after
Miller was rehired Otto Klein, the then secretary-treasurer of the Mine Produc-
tion Workers, said to the respondent's superintendent, Elliott H. Syms, to quote
the latter's testimony, "You have employed a Charlie Miller, and he has been
working 2 days. He is not a member of our union in good standing, and if lie
doesn't become a member in good standing he can't be employed by the Idarado
Company under their maintenance-of-membership clause in their contract." Later
that day Syms told Miller what Klein had said and then told Miller that by reason
of the respondent's maintenance-of-membership contract with the union he "would
have to see the union boys and make himself right with the union before the
company could continue his employment " Pursuant to Syms' statement that
he ' make himself right with the union" if he desired to retain his job, Miller
saw Klein and informed him that he "didn't have the money right at the time"
but that he would give him ",some money on pay day." On December 10, Miller
L This Article reads as follows :
The Agreement shall be in full force and effect from July 1, 1944 for a period of one
year ending July 1, 1945. If either party desires to change the provisions of this Agree-
ment, such party shall notify the other party in writing thirty days prior to the expiration
of this Agreement. If such notice is given by either party, both parties shall begin negoti.
ations within fifteen days and use their best efforts to reach an agreement by the expiration
date If agreement is not reached prior to the expiration date, negotiations shall be
continued and the existing contract shall remain in full force and effect for a period of
ninety days providing, further, that this period may be extended by mutual consent of both
parties. However , if no notice of the desire to change is given as herein provided then
the Agreement shall remain in full force and effect from year to year.
IDARADO MINING COMPANY 399
gave Klein $5 and Klein handed Miller a paper acknowledging the receipt of the
$5 as "partial payment on reinstatement fee and back dues." Either shortly
before or shortly after this date, December 10, Miller joined Local Union No.
1 ;051, District 50, United Mine Workers of America, herein called United Mine
Workers.'
On February 9, 1946, the respondent received from the unions a letter reading
In part as follows:
Article Two of the existing labor agreement between you Company and
our Unions provides that all employees who become members of oure Unions
during the term of the contract, Shall as a condition of employment, maintain
their membership in good standing for the duration of the Agreement.
The following employees ace members of the Union and have become delin-
quent in the matter of the payment of their required dues:
CHARLES MILLER
HUBERT KELLY.
The above employees have been advised that it is necessary for them to pay
up their dues in full, on, or begone Feb. 21, 1946, or they shall no longer be
members of the Union in good standing. They have further been advised
that employeex who are members of the Union and who fail to maintain
their membershipin good standing, are subject to discharge, pursuant to the
terms of the labor agreement in effect between the parties.
The same day, February 9, 1946, the unions informed the respondent that they
would call a strike among the respondent's employees if it did not discharge the
two men mentioned in the above-quoted letter.
Sometime between February 12 and Febiuary 15 Syms informed Miller of the
unions' demand and then told Miller that he would have to discharge him if lie
slid not "make himself a member of good standing." Miller then told Syms
that he thought he would become a member in good standing. On February 22,
Miller informed the respondent that he had decided not to place himself in good
standing in the Aline Production Workers and was dischai g A because of his
refusal to become a member in good standing.'
On or about December 19, 1945, the United Mine Workers petitioned the Board
for an investigation and certification of representatives under Section 9 (a) of
the Act concerning the respondent's Ouray, Colorado, employees. On February
(1, 1946, the Regional Director for the Seventeenth Region notified the United
Mine Workers he would not proceed on the said petition because of the then
existing contract between the respondent and the Aline Production Workers.
Notice of the Regional Director's refusal to act was received by the respondent
on or about February 21. On or about April 16, the respondent was notified
that the Board, on appeal from the Regional Director's ruling, had sustained
the Regional Director. Thereafter, and on or about April 16, the United Mine
Workers filed a new petition under Section 9 (a) of the Act. On May 15, an
Agreement for Consent Election to be held under the auspices of the said
0 At no time prior to his discharge did the respondent have knowledge of Miller ' s affilia-
tion i\ ith the United Mine Workers.
4 Miller was expelled from Mine Production Workers on or about February 22, 1946.
Actual membership in that organization is not material to the issues herein What is
here material, however, under the expressed terms of the then existing contract, is the
necessity , after becoming a member of Mine Production Workers , of maintaining that
membership in good standing.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director was entered into, with the approval of the said Regional
Director, between the respondent, United Mine Workers, and Mine Production
Workers. The unit selected and approved by the parties and the said Regional
Director prodded as follows:
All production and maintenance employees excluding office and clerical
workers, professional technicians, boarding house workers and supervisory
employees having the right to hire, promote, discharge, discipline or other-
wise effect changes in the status of employees, or effectively recommend
such action.
An election was held on May 15. On or about May 31. the Regional Director
issued a Consent Determination of Representatives, and on the same day served
copies thereof on the parties, in which he certified the United Mine Workers
as the exclusive representative of all the employees in the aforesaid unit.
On or about July 31, the respondent and the United Mine Workers entered
into a 2-year written collective bargaining contract covering the employees in
the aforesaid unit
2 Concluding findings
The unfair labor practice complained of centered around the discharge of
Charlie Miller. The question which here presents itself is whether Miller,
when he was rehired by the respondent in November 1945, was obligated to
maintain membership in good standing in Mine Production Workers as a condi-
tion of continuous employment with the respondent Board's counsel contended
that Miller became a new employee upon his rehiring and hence was not obliged,
under the terms of the existing contract, to become a member of Mine Production
Workers or to reinstate himself as a member therein in good standing, and
therefore his discharge on February 22, 1946, was violative of the Act The
respondent's counsel contended that the respondent was protected by the con-
tract in dischaig:i,^, Miller for the reason that he was a member in good standing
on October 6, 1944, and that it was obligatory on his part to reinstate himself in
good standing and maintain himself in such manner upon his return to respond-
ent's employ if he desired to retain his job. The undersigned is of the opinion,
for the reasons hereinafter set forth, that there was no obligation on Miller's
part to reinstate himself in Mine Production Workers and that the respondent
in discharging him was not protected by the Act.
The record is clear and the undersigned finds, that when Miller returned to
the respondent's employ in November 1945, he was rehired as a new employee.
Prior to his quitting the respondent's employ in November 1944, he was an
electrician. Upon his return he applied for and obtained a watchman's job,
which entailed entirely different duties than that of an electrician. Upon his
separation in November 1944, he forfeited all his seniority rights and other
privileges. He did not regain, as far as the record reveals, these rights and
privileges when he was rehired.
It is undisputed that if Miller had not been a member in good standing in
Mine Production Workers on October 6, 1944, or become a member prior to his
leaving respondent's employ in November 1944, he would not have been under
any compulsion to join that organization after he was reemployed by the respond-
ent. It is also undisputed that Miller sought to reinstate himself in good
standing only after Syms threatened to discharge him in November 1945, unless
he became a member in good standing in Mine Production Workers. Since it
has been found that Miller became a new employee upon his rehiring in Novem-
ber 1945, it was not necessary for him to join or to reinstate himself in good
IDARADO MINING COMPANY 401
standing in Mine Production Workers in order to keep his job. Syms' instruction
to Miller to reinstate himself in November 1945, if he desired to maintain
his employment, was not only unwarranted as a matter of law, but was a
type of duress, notwithstanding Syms' misconception of Miller's obligation, which
served to nullify any effect his partial gesture toward reinstatement might have
had on his status under the contract. In the face of such duress, Miller was
under no more obligation to complete his reinstatement, or to maintain a member-
ship in good standing, after he had made the payment of $5 than he was before
doing so. For that reason it is found that whatever Miller had done toward
reinstatement was not his own free and voluntary act and carried with it no effect
and, for the purpose of this case, it must be treated as if no payment had been
made. In placing an erroneous construction on the contract the respondent acted
at its peril and violated Section 8 (3) of the Act when the true facts were, as
herein found, that the contract did not require Miller's discharge.`
Whether the respondent paid any heed to the threat made by the Mine Produc-
tion Workers to call a strike if the respondent did not discharge Miller, the record
is not clear Even if that threat was the motivating factor in the respondent's
determination to discharge him, the respondent's action was nonetheless violative
of the Act and a defense that it feared that it would be visited with economic
loss if it failed to do the bidding of Mine Production Workers would be without
merit. As the United States Circuit Court of Appeals for the Ninth Circuit care-
fully pointed out in N. L. R. B. v. Star Publishing Co., 97 F. (2d) 465, "The Act
prohibits unfair labor practices in all cases. It permits no immunity because
the employer may think that exigencies of the moment require infraction of the
statute. In fact, nothing in the statute permits or justifies its violation by an
employer." This rule has also been followed in numerous other cases involving
employers who have refused to obey the mandate of the Act because of pressure
by one union which was party to a jurisdictional labor dispute. The statute "per-
mits no immunity because of undue hardship or economic pressure imposed on
the employer. It leaves no room for the appeasement of hostile interests . . ."'
A contrary principle making enforcement of the provisions of the Act dependent
upon considerations of the economic hardships imposed upon an employer would,
as here, nullify the right of employees, guaranteed to them by the Act, to bargain
through representatives of their own choosing. Representatives for the purpose
of collective bargaining under such a principle would be determined by the
degree of economic pressure rival unions or even one's customers would be able
to bring to bear upon an employer, rather than by the free choice of a majority
of the employees'
5 See Hatter of Baker & Company, Inc, 68 N L. R. B. 830
6 See McQuay-Norris Mfg. Co. v. N. L. it. B, 116 F. (2d) 748, 752 (C C. A. 7), cert.
den. 313 U S. 565 See also N. L. R. B. v. Isthmian Steamship Co., 126 F. (2d) 598, 599
(C. C. A. 2) ; N. L. R. B. v. Hudson Motor Car Co., 128 F. (2d) 528, 532 (C. C. A 6) ;
N. L. R B. v. John L'nglehorn Sons, 134 F. (2d) 553, 557 (C. C. A. 3) ; South Atlantic
Steamship Co. v. N L. R. B., 116 F. (2d) 480, 481 (C C. A. 5), cert. den 313 U S 582 ;
N. L R B v. Cluck Brewing Co , et al, 144 F (2d) 847, 853 (C C A 8) ; Warehousemen's
Union V. N. L. R. B., 121 F. (2d) 84, 87 (App. D C ), cert. den 314 U. S 674 ; N. L. R. B. v.
National Broadcasting Company, et al, 150 F. (2d) 895( (C C. A. 2).
' In the Matter of A. J. Showalter Company, 64 N. L. R. B. 573, the Board held that the
threat of a loss of business, sufficient even to cause the plant to be shut down, did not
justify the president in telling his employees of the threat and the effect it might have
on their jobs if they continued to remain members of a certain union. In the recent case
of Matter of Toledo Desk & Fixture Company, 65 N L. R B. 1086, the same principle was
again announced when the employer urged that to recognize the C. I 0. would deprive it
of the right to use the A F of L label and thereby render its product unsalable in their
customary markets..
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead-to labor d,sputes burdening and ob-
structing commer ce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices the
undersigned will recommend that it cease and desist therefrom and take the
following affirmative action which it is found will effectuate the policies of the
Act.
Since it has been found that the respondent discriminated in regard to the hire
and tenure of employment of Charlie Miller by discharging him and thereafter
refusing to reemploy him because he had failed and refused to remain a member
in good standing in Mine Production Workers, the undersigned will recommend
that the respondent offer to him immediate and full reinstatement to his former
or substantially equivalent positions without prejudice to his seniority and other
rights and privileges, and make him whole 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 the amount he normally would have earned
as wages during the period from February 22, 1946, the date of his discharge,
to the date of the respondent's offer of reinstatement to him, less his net earnings
during said period.
In acceding to Mine Production Workers' demand for the discharge of Charlie
Miller the respondent violated Section 8 (3) of the Act. Normally in cases in
.which an employer has unlawfully discriminated against an employee by dis-
charging him, in addition to the affirmative relief the Board orders the employer
to cease and desist from in any manner infringing upon the rights guaranteed
in Section 7 of the Act In the instant case, however, the respondent dischaiged
Miller not to satisfy any purpose of its own, but rather yielded to the pressure
of the Mine Production Workers, who threatened to refuse to allow the plant to
operate because Miller was not in good standing with Mine Pioduction Woikeis-
Under such circumstances, and in view of the absence of any evidence that
danger of other unfair labor practices is to he anticipated from the respondent',;
conduct in tie past, the undersigned will not recommend that the respondent be
enjoined from the commission of any and all unfair labor practices Neverthe-
less, the undersigned will recommend that respondent be ordered to cease and
desist from the unfair labor practice herein found.10
On the basis of the foregoing findings of fact and upon the entire record in the
case. the undersigned makes the following
8In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puci to R,co, Branch, 65 N L. R B. 827.
B Matter of Crossett Lumber Co., 8 N L. R B 440, 497-498.
10 See Matter of American Car and Foundry Company, 66 N L. R B 1031 ; see Matter
of G. TV Hume Company , 71 N. L. R B 533.
IDARADO MINING COMPANY
CONCLUSIONS OF LAW
403
1. Local Union No. 13081, District 50, United Mine Workers of America, and
Mine Production Workers of San Juan Triangle Union Local No. 23667, both
affiliated with the American Federation of Labor, are labor organizations within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Charlie
Miller, thereby encouraging membership in Mine Production Workers of Sail
Juan Triangle Union Local No. 23667 and discouraging membership in Local
Union NNo. 13081, District 50, United Mine Woi keis of America, 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
c,f the nights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of i lie 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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent , Idarado Mining Company, Ouray, Colo-
rado, its officers , agents, successors , and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Local Union No 13081, District 50, United
Mine Workers of America , affiliated with the American Federation of Labor, or
any other labor organization of its employees , by discharging and refusing to
reinstate any of its employees or in any other manner discriminating in regard
i•.- their hire and tenure of employment or other terms and conditions of employ-
ment;
(b) Encouraging membership in aline Production Workers of San Juan Triangle
Union Local 23667 , affiliated with the American Federation of Labor, by yielding
to pressure from that organization or other pressure through discharge or refusal
to reinstate any employees or through any form of discrimination in regard
to hire and tenure of employment or any other term or condition of employment.
2. Take the follow ng affirmative action which the undersigned finds will effec-
tuate the policies of the Act:
(a) Offer to Cho' I e Miller immediate and full reinstatement to his former or
s^ibstantially equi dent position without prejudice to his seniority and other
rights and privileg s in the manner set forth in "The remedy" ;
(b) Make whole , in the manner set forth in "The remedy," Charlie Miller for
any loss of pay he may have suffered by reason of the respondent 's discrimination
against him in regard to his hire and tnure of employment , less his net earnings
during the said period;
(e) Post at its Ouray, Colorado , mine, copies of the notice attached hereto
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Seventeenth Region, shall , after being duly signed by the re-
spondent 's representative , be posted by the respondent immediately upon the
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt thereof , and maintained by it for sixty ( 60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered , defaced, or covered by any other material ;
(d) Notify the Regional Director for the Seventeenth Region in writing, within
ten (10 ) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations , the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen ( 15) days from the date of service
of the order transferring the case to the Board , pursuant to Section 203 38 of
said Rules and Regulations , file with the Board , Rochambeau Building , Washing-
ton 25, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding ( including rulings upon all motions or objections ) as lie relies
upon, together with the original and four copies of a brief in support thereof;
and any party or counsel for the Board may, within the same period, file an
original and four copies of a brief in support of the Intermediate Report. Imme-
diately upon the filing of such statement of exceptions and/or briefs, the party or
counsel for the Board filing the same shall serve a copy thereof upon each of
the other parties and shall file a copy with the Regional Director. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203 39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the older transferring the case to the Board.
HOWARD MYERS,
Trial Ewamsnei.
Dated April 28, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 OFFER to the employee named below immediate and full reinstate-
ment to his former or substantially equivalent position without prejudice to
any seniority or other rights and privileges previously enjoyed, and make him
whole for any loss of pay suffered as a result of the discrimination.
CHARLIE MILLER
WE WILL NOT DISCOUR AGE membership in Local Union No. 13081, District 50,
United Mine Workers of America, or encourage or discourage membership in
IDARADO MINING COMPANY 405
any other labor organization of our employees, by discharging or refusing to
reinstate any of our employees.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local Union No 13081, District 50,
United Mine Workers of America, 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 bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
IDARADO 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.
788886-49-vol. 77-27