Phelps Dodge Refining Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1941

37 N.L.R.B. 1059 (N.L.R.B. 1941)

In the Matter of PHELPS DODGE REFINING CORPORATION and INTERNA-
TIONAL UNION OF MINE , MILL AND SMELTER WORKERS and COPPER
REFINERY EMPLOYEES INDEPENDENT UNION No. 1, A PARTY TO THE
CONTRACT
Case No. C-18019.Decided December 31, 1941
Jurisdiction : copper refining industry.
Unfair Labor Practices: ' .
In General: employer held responsible for acts of minor supervisory employees
when it reasonably appears, to other employees' that these. men reflect the
.views .and opinions of management ; anti-union statements by non-supervisory
employees chargeable to employer where by course of conduct other employees
were intentionally permitted to believe that such statements were authorized
by management. -
Interference, Restraint, and Coercion: anti-union statements; surveillance of
union meetings ; employment of an individual with knowledge that, he was
also employed by the sheriff as an informer on union activity,and continuing
his employment without disavowing his informing activities after such activity
became generally known to the employees. -
Company-Dominated Union: formation of, by supervisory employees; approved
by plant manager-support: supervisory employees encouraged attendance of
meeting; representatives of management manifested hostility toward rival
affiliated union by discriminatory discharges ; by engaging in surveillance ; by
anti-union statements ; and by other illegal acts-indicia : acceptance of type-
written list as proof of claim of majority representation.,
Discrimination: discharges for union membership and- activity;' discriminatory
selection of employees in reducing force ; asserted discharge for cause rejected ;
charges of, dismissed as to four employees.
Remedial Orders: disestablishment of company-dominated union; abrogation of
contract ; reinstatement and back pay ; immigration laws held not to affect
Board's plenary power to effectuate policies of the Act to order reinstatement
with back pay for employees who are citizens of Mexico ; offer of reinstatement
made at hearing without including back pay and restoration of other ' rights,
does not reduce the amount of back pay otherwise due. ' -
Mr. V. Lee McMahon, for the Board.
Mr. William H. Burges, of El Paso, Tex., and Beeves, Todd, Ely do
Beaty, by Mr. Julian B. Beaty, of New York City, for the respondent.
Mr. James Robinson, of El Paso, Tex., for the Union.
Mr. W. H. Fryer and Mr. Coyne Milstead, of El Paso, Tex., for the
Independent.
Mr. Gilbert V. Rosenberg, of counsel to the Board. _-
37:N. L.• R. B., No. 189. -
1059
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon-a second amended charge filed on October 3, 1940,1 by Inter-
national Union of Mine, Mill and Smelter Workers, herein called the
Union, the National Labor Relations Board, herein called the Board,
by the Regional 'Director for the Sixteenth Region (Fort Worth,
Texas) issued its complaint dated October 9, 1940, against Phelps
Dodge Refining Corporation, El Paso, Texas, herein called the re-
spondent, alleging that the respondent had engaged in' and was en-
gaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (2), 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 Union, the respondent, and Copper Refinery
Employees Independent Union No. 1, herein called the Independent,
a labor organization alleged in the complaint to be employer domi-
nated.
With respect to the unfair labor practices the complaint alleged in
substance that the respondent, at its El Paso, Texas, refinery, (1'
from about October 1, 1938, dominated and interfered with the forma-
tion and administration of the Independent, and contributed support
to it, entering into a collective bargaining agreement with it on or
about April 22, 1939; (2) discouraged membership in the Union 'by
discharging seven named employees 2 in' February and' March 1940;
and thereafter refusing to employ them, because they had joined and
-assisted the Union and engaged in other concerted activities for the
purposes of collective bargaining and other mutual aid and protec-
tion; and (3) by the foregoing acts, and by (a) urging, persuading,
and warning its employees to refrain from aiding the Union, or be-
coming or remaining members thereof, and threatening them with
discharge and other reprisals if they failed so to refrain, (b) engaging
employees in conversation for the purpose of learning of the Union's
activities and promising to reward employees who would supply in-
formation regarding such activities, (c) circulating among employees
literature derogatory of the Union, (d) engaging in surveillance of
union members and meeting places, and (e) employing or causing to
be employed one Gabe Escajeda for the purpose of spying on the
1 The original charge and the amended charge were filed , respectively , on April 1 and
April 10; 1940.
2 Domingo Lopez , Nicholas Quintana , Genaro Franco , Ladislao Molina, Luis Mijares,
Carlos Sanchez , and Aurelio Zacharias ( also spelled Zacarias).
PHELPS DODGE REFINING CORPORATION 1061
Union and its members, interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
Thereafter, the'respondent filed its answer dated October 22, 1940,
in which it admitted some of the specific allegations of the complaint,
but denied that it had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held at El Paso, Texas, on Novem-
ber 6, 7, 8, 9, 12, 13, 14, and 15, 1940, before Horace A. Ruckel, the Trial
Examiner duly designated by the Chief Trial Examiner. At the com-
mencement of the hearing the Independent filed a motion to intervene
which was granted to the extent to which the proceedings involved the
issue of employer-domination of the Independent. Thereupon, the In-
dependent filed an answer in substance denying the allegations of the
complaint that the Independent was employer-dominated. The Board,
the respondent, and the Independent were represented by counsel and
the Union by an organizer; all participated in the hearing. All parties
were afforded full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence bearing on the issues. At
the beginning of the hearing the Trial Examiner denied the respond-
ent's motion for a bill of particulars., At the conclusion of the hearing
counsel for the Board moved to conform the pleadings to the proof in
respect to formal matters. The motion was granted: At the end of the
Board's case counsel for the respondent moved to dismiss the com-
plaint. The Independent moved to dismiss the complaint insofar as it
alleged that the Independent was employer-formed or -dominated.
The respondent joined in this motion. The motions were denied. At
the close of the hearing the respondent and the Independent renewed
their respective motions. The Trial Examiner reserved decision on
these motions, and later denied them in his Intermediate Report. Dur-
ing the course of the hearing the Trial Examiner made a number of
rulings on other motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that, no prejudicial errors were committed. The rulings are hereby
affirmed.
On January 29, 1941, the Trial Examiner filed his Intermediate
Report, copies of which were served upon all the parties, in which he
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within.the meaning of Section 8 (1),
(2), and (3) and Section 2 (6) and, (7) of the Act. He recommended
that the respondent cease and desist from its unfair labor practices;
reinstate Luis Mij ares, Carlos Sanchez, and Aurelio ' Zacharias, with
back pay; and disestablish and withdraw all recognition from the
' The record indicates that prior to the bearing counsel for the Board had satisfied the
respondent 's request for additional information concerning , the allegations of the complaint
433257-42-voL 37-68
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent. He found further that the respondent had not discrimi-
nated against Genaro Franco,. Ladislao Molina, Domingo Lopez, or
Nicholas Quintana, and recommended that the complaint be dismissed
,as to them. Thereafter, the respondent and the Independent filed ex-
ceptions to the Intermediate Report, together with briefs in support
of their respective exceptions.
Pursuant to notice and at the request of the respondent, a hearing
was held before.the Board at Washington, D. C., on September 11, 1941,
for the purpose of oral argument. The respondent was represented
by counsel, and presented argument. The Union and the Independent
did not appear. The Board has considered the exceptions to the Inter-
mediate Report, the briefs in support of the exceptions, and the argu-
ments advanced before the Board, and, insofar as the exceptions 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
Phelps Dodge Refining Corporation, a New York corporation with
;ts principal office in New York City, is engaged in copper smelting and
refining and the production of copper sulphate at plants in Laurel Hill,
New York, and El Paso, Texas. The El Paso plant, with which this
proceeding is' concerned, employs between 300 and 400 persons, depend-
ing upon the extent of operations,' and includes a refinery, a copper-
sulphate plant, and accessory buildings.
The principal raw material used by the respondent at the El Paso
plant is crude copper, substantially all of which is obtained outside
Texas.. After the refining process, approximately 90 per cent -of the
finished products, copper and "copper sulphate, are shipped by railroad
to points outside Texas. During the first 4 months of 1940, the El
Paso plant produced approximately 42,000 tons of copper cathodes.
The respondent admits for the purpose of this proceeding that it is
engaged in commerce within the meaning of the Act. •
IT. THE ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the respondent.
Copper Refinery Employees Independent Union No. 1 is an unaffili-
ated labor organization admitting to membership employees of the
respondent. - • - - •
PHELPS DODGE REFINING CORPORATION 1063
III. THE UNFAIR LABOR PRACTICES
A. Domination of the Independent
During the late summer and early fall of 1938 , a number of employ-
ees of the respondent including B. J. Grimm, Sanford Beach, and E. J.
Ferguson , discussed the formation of a labor organization at the re-
spondent 's plant, and in the middle of October of that year they and
S. J. Brown and Domingo Lopez, fellow employees , began securing the
signatures of employees of the -respondent to blank pieces of papers as
evidence of their -,^illingness to associate themselves with the solicitors
in forming some kind of an organization . The solicitation was done
at the plant during lunch periods and during, or just before or after,
working hours.
Grimm called a meeting of the employees of the respondent for
October 25, 1938, to determine what type of labor organization the
employees desired. Notice of the meeting was given to the em-
ployees by Brown, Beach, Ferguson , and others , and the meeting
was held as scheduled at a local hall . Approximately 125 employees
of the respondent attended . this meeting and Grimm presided. After
all speakers , including Grimm, Beach, and Ferguson , had indicated
their - preference for an unaffiliated labor organization with member-
ship restricted to employees of the respondent , those present unani-
mously decided to form such an.organization . The Independent thus
came into existence . Additional signatures were secured to the blank
sheets of paper described above, and the meeting , adjourned. Grimm
appointed a committee to repres 'en't' the embryonic organization in
meeting with the respondent . The committee consisted of Grimm,
Ferguson , Brown, J. E. Evans, and C. W. Maxson.
Inasmuch as the Trial Examiner based his conclusions regarding
the Independent in part upon the character of its sponsors , whereas
the respondent and the Independent contend that none of the mem-
bers of the committee appointed by Grimm, or the other promoters of
the new labor organization , was a supervisory employee, it is appro-
priate at this point to examine the work done by the employees in
question and their relationship to the respondent and to other employees
at the plant.
Grimm is the respondent's head blacksmith and works in the black-
smith shop , a subdivision of the construction and repair department.
The personnel of the blacksmith shop consists of Grimm, Grimm's
helper, an assistant blacksmith or handy man , and the assistant's
helper. Grimm earns 76 cents an hour and apparently is the highest
paid . employee in the blacksmith shop. The foreman under whom
Grimm works is not continually in the shop during the workday.
Grimm testified that in the foreman's absence , and "by request of th
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman," he tells the other three employees "what kind of work they
should do."
Beach, a machinist in the construction and repair department, also
earns 76 cents an hour. When asked for his title, Beach testified
that he was "in charge of the maintenance in the casting department,
running repairs in the casting department," and that he had from 1
to 20 helpers assisting him in his work. In this department the labor-
ers and general helpers are paid, respectively, 40 cents and 431/2 cents
an hour.
Brown was classified as a pumpman in the tank house,4 at the time
the Independent was organized. Although Brown's duties are not
disclosed by.the record, apparently a pumpman is a strawboss and
acts as an "intermediary" for the foreman in conveying the latter's
orders to the employees and reporting on the quality of their work.5
On January 31, 1940, Brown was transferred to the slimes depart-
ment where he is the only shift boss under Foreman W. F. Husband.
At the time of the hearing he was paid 631/2 cents an hour, while
helpers and laborers in his department earned, respectively, 46 cents
and 40 cents an hour.
Ferguson earns 601/2 cents an hour and is the highest paid of four
shift bosses in the blue vitriol department. He is the only day-shift
boss under Foreman Wiley and as such gives instructions to employees
working under him.
Evans is weighmaster in the receiving department. He is paid
601/ cents an hour, while other employees in, his department are paid
from 40 cents to 431/2 cents an hour. Foreman Rule described Evans
as his "Chief Clerk" and stated that the latter issued instructions in
Rule's absence.
In the light of this evidence we are of the opinion, as was the Trial
Examiner, that the above contentions of the respondent and the
Independent are without merit.' Each of the above-named organ-
izers and advocates of the Independent is the highest paid hourly
employee in his respective department and gives instructions and
orders to other employees under him. While they do not have the
power to hire and discharge, we are satisfied under all the circum-
stances that Grimm, Beach, Brown, Ferguson, and Evans are em-
ployees essentially identified with the management and that it reason-
ably appeared to the other employees that these men reflected the
4 The pay roll as of February 1940 shows that only 4 of the approximately 120 employees
in the department were classified as pumpmen
B This finding is based in part on the uncontradicted testimony of Foreman Purdy con-
cerning the work of one van Wagenen, also classified on the pay roll as a pumpman.
The record does not show that Lopez and Maxson, two other organizers of the Inde-
pendent, exercised any' supervisory authority.
0
PHELPS DODGE REFINING CORPORATION 1065
views and opinions of the respondent with respect to labor relations.'
Consequently, the respondent is responsible for their activities on
behalf of the Independent." We find that by the participation of
Grimm, Beach, Brown, Ferguson, and Evans, in the organization of
the Independent the respondent aided it in its formation.
On the morning of October 27, 1938, 2 days after the meeting dis-
cussed above, Grimm delivered to Plant Manager Martin's office the
following letter composed by Grimm and signed by the committee,
together with several sheets of paper carrying signature of 198 employ-
ees which had been obtained by the organizers of the Independent :
El Paso, Texas.
Copper Refinery Independent Union No. 1,"
El Paso, Texas.
It is for the purpose to have this Union Organized by request of
the majority of the Copper Refinery Employees, as under the
Act of the Wagner N. L. R. Law, passed by the Congress of the
United States of America, as Holding Company Unions are
illegal under that law.
This organization is a strictly independent outside Union be-
tween the Copper Refinery Employees only, which will have their
own representatives for collective bargaining with the Company or
Plant Manager.
This Union has no intention of trying to run the Company's busi-
ness. Its only object is to work in harmony and cooperate together
with the Company and its Manager, to obtain and preserve for
all employees a just and reasonable condition of employment with
7 This conclusion is supported by the uncontradicted testimony of Foreman Purdy that
when he laid off Franco , named in the complaint as having been discriminated against,
Purdy considered several complaints lodged against Franco ' s work by Van Wagenen, a
minor supervisory employee classified on the pay roll as a pumpman
8 See International Association of Machinists , Tool and Die Makers Lodge No 35, etc, v
National Labor Relations Board, 311 U. S. 72, enf'g 110 F. ( 2d) 29 ( App D C .) and enf'g
Matter of Serrick Corporation and International Union , United Automobile Workers of
America, Local No. 459, 8 N L R B 621 , in which the Supreme Court said "The em-
ployer, however , may be held to have assisted the formation of a union even though the
acts of the so-called agents were not expressly authorized or might not be attributable to
him on strict application of the rules of respondent supervisor . . . The existence of that
interference must be determined by careful scrutiny of all the factors , often subtle, which
restrain the employees' choice and for which the employer may fairly be said to be re-
sponsible Thus, where the employees would have just cause to believe that solicitors
professedly for a labor organization were acting for or on behalf of the management, the
Board would be justified in concluding that they did not have the complete and unhampeied
freedom of choice which the Act contemplates Here there was ample evidence to support
that inference . As we have said, Fouts , Shocks, Dinnerger , and Bolander [whom the
employer claimed were only `lead men' without supervisory authority ], all had men work-
ing under them. To be sure, they were not high in the factory hierarchy and apparently
did not have the power to hire or fire. But they did exercise general authority over the em-
ployees and were in a strategic position to translate to their subordinates the policies and
desires of the management ." See also National Labor Relations Boa) d v Link-Belt Co,
311 U S 584.
Prior to October 27 Grimm selected the official name of the Independent , as set forth
above, but it was not formally adopted by the organization until November 17, 1938
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to wages, working hours and other terms of employment,
and generally to improve the material and intellectual standards.
Such can only be accomplished through negotiation of collective
agreements.
We therefore ask your consideration of this Plan and recognition
of this Union.
Yours very truly,
THE COMMITTEE :
(s) B. J. Grimm,
(s) S. J. Brown,
(s) E. J. Ferguson,
(s) J. E. Evans,
(s) C. W. Maxson.
That afternoon the Independent's committee held a conference with
representatives of the respondent, including Plant Manager Martin
and W. J. Glasgow, in charge of personnel. Since the respondent's
minutes of this meeting bear upon the antecedents of the Independent,
the then undeveloped status of the Independent, the respondent's atti-
tude toward the embryonic organization, and its future course, they
are here set forth in full :10
Mr. MARTIN. I regret that I was not in when you came to see me
earlier today to present your request and petition. I presume you
are familiar with the law and that this is all voluntarily done and
independent of help of any of the Company's representatives. I
note from the number of names you have here that a substantial
majority is back of this committee, namely : Messrs. Grimm,
Brown, Ferguson, Evans, and Maxson; and that the 198 names
(of signers) out of 312 employees is 63.4 percent of the employees,
which is well over the bare majority, so it seems that you are
justified in the move you are making.
Also, I presume that you will continue to perfect your organiza-
tion and place it on a permanent and legal'basis, so that there can
be no question about your being the chosen representatives for
"collective bargaining." When you get your organization estab-
lished and organized, come to see me again. I feel quite sure
that the company will then be agreeable to recognizing you as
the bargaining agency for the employees of the plant. So far as
I know, that is about as much as we can do today, unless you have
some further suggestions.
Mr. GRIMM. No, I don't believe I have any ' suggestions, Mr.
Martin, for the present.
10 The proceedings of the meeting were transcribed by the respondent and a transcript is
in evidence.
PHELPS DODGE REFINING CORPORATION 1067
Mr. MARTIN. Then the best thing for you to do is to continue
on and perfect your organization and get ready to do business.
Mr. GRIMM. I believe that is the best way to look at it; I
believe we can work in harmony and cooperate with, the com-
pany in this way.
Mr. MARTIN. I believe in working closely with the employees.
I know the problems of the employees, because I have done
manual work myself. I appreciate the attitude you people have
taken. You have always been very fine in solving our prob-
lems through the Employees' Committee.1' I have no criticism
to make, but inasmuch as that Committee seems to be outlawed
by the Labor Board's decision in the enforcement of the Wagner
Labor Act, these steps you are taking seem to be the proper
ones at the present time.
It might be well to have an expression from the members of
the committee whether or not there has been influence of . any
kind from any of the company executives or foremen in your
taking steps to organize this Union.
Mr. GRIMi%i. There has been no influence from anyone in the
plant organization in our doing this. The steps we have taken
have been entirely among the employees in the plant themselves.
Mr. EVANS. Mr. Grimm is the only -man who talked to me
about this.
The committee collectively expressed themselves as having no
influence whatever brought to bear from anyone inside or outside
of the plant in taking steps to organize such a union..
There being no other business, the meeting adjourned at
1:45 p. in.
The committee's letter indicated, on its face, the committee's de-
pendence upon the respondent. By requesting "consideration" of
its plan the committee invited the respondent to approve its organ-
izational efforts. The minutes of the ensuing meeting further dem-
onstrate that the Independent was employer-dominated in its in-
ception. All that was accomplished there was that the Independent
sought and received the respondent's blessing. The committee did
not so much request recognition as seek approval. Martin advised
that the Independent "perfect" its organization. At the same time
Martin assured the committee that it represented a clear majority
and that the steps it was taking were "proper," thus indicating his
approval of the proposed labor organization. Under the circum-
stances Martin's avowed concern over the independence and legality
11 In 1933 an unaffiliated labor organization known as the "employees representation
plan" was organized at the respondent 's plant. It ceased to exist some time after 1936.
Martin testified that when he came to the El Paso plant in that year the "plan" was still
in existence but was not functioning.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Independent cannot obscure the fact that he illegally encour-
aged " it. Martin's actions at the meeting of October 27, 1938, neces-
sarily encouraged and supported the Independent.
On about November 17, 1938, officers were elected and the name
of the Independent, which Grimm had chosen, was formally
adopted. Grimm was elected president, Lopez, vice president, Fer-
guson, recording secretary, and T. R. Ware, a watchman, secretary-
treasurer. Shortly thereafter the "By-Laws and Rules" of the In-
dependent were adopted. Upon Grimm's uncontradicted testimony
we find that on December 5 or 6, 1938, without having brought
the matter up at any meeting of the Independent, he asked Martin
whether it was possible to secure an unspecified wage increase for
the employees. A wage increase of one and one-half cents was
granted, effective December 12, 1938.
On about December 15, 1938, Grimm submitted to Martin a type-
written list purporting to contain the names of 268 employees who
had joined the organization and requested recognition as the col-
lective bargaining agent for the respondent's employees at its El
Paso plant. Martin replied to this letter on December 16, stating
that he would give the matter careful consideration. On January
25, 1939, the respondent addressed the following letter to Grimm :
Since acknowledging receipt of your letter of December 15,
1938, we have carefully examined the evidence submitted, from
which it appears that the Copper Refinery Employees Inde-
pendent Union No. 1, having about 83 per cent of all the hourly-
paid employees in the Phelps Dodge Refining Corporation's
payroll at El Paso as paid-up members, fulfills the requirements
of the Wagner Labor Relations Act.
In reliance on that evidence we recognize your union as the
collective-bargaining agency for our employees.
We have also received your letter of January 18, 1939, con-
taining a list of your officers, of which we have taken due notice
and will be guided accordingly.
,In arriving at the conclusion that the majority of its employees
were members of the Independent, the respondent checked a type-
written list of members against the pay roll. Martin admitted that
he depended upon the representation of the Independent that the
employees on the list were in fact members of that organization.
Here, as at the October 27, 1940, meeting, where he accepted signa-
tures on blank sheets of paper, Martin assumed the validity of the
'Independent's claim of representation at face value without inquiry.
After the recognition of the Independent, on April 19, 1939, Grimm
and the other officers submitted a proposed contract to the respondent.
Martin indicated that the respondent would desire several changes.
PHELPS DODGE, REFINING CORPORATION 1069
At a second meeting, on April 22, the parties entered into an agree-
ment which embodied the respondent's changes 12 This contract was
to run for 1 year, and thereafter until 60 days' after notice' by one
party to the other of a desire to cancel. In it the respondent recog-
nized the Independent as the representative of all the respondent's
El Paso employees. It covered wages, hours, and working conditions,
and provided a method for handling grievances.
Under the terms of,the contract the respondent and the Independent
have held a number of meetings to consider grievances of the employees
and other matters. In October 1939 the Independent obtained for
all employees a general wage increase of 21/2 cents an hour.
On May 1, 1940, after three meetings between representatives of
the Independent and representatives of the respondent the contract
was extended for another year, with the same automatic renewal
clause. The only substantial disagreement between the parties in
negotiations involved a 10 cent per hour wage increase proposed by
the Independent. The contract, as extended, provided for a 3 cent
per hour increase. -
Notwithstanding the organization of the Independent and the ex-
clusive recognition accorded it in written bargaining contracts with
the respondent, a number of the respondent's employees, some of them
former members of the Independent, sought membership in the Union,
which engaged in organizing activities from about the beginning of
1940.
Luis Mijares, whose discriminatory discharge is hereinafter dis-
cussed, testified that some time in January, 1940, he had a conversa-
tion with Purdy, general foreman of the tank house 13 and blue vitriol
department. Mijares' account of this conversation is that he and
Purdy discussed unions both in Mexico and the United States, and
that after Mijares said he believed in industrial unions such as the
Union, Purdy stated "that that union was just as bad as any other;
that the only thing that they brought about was difficulties between
the companies and the employees; and, that he would like a union
that was only among the employees of a particular plant, like the
union we had at that time, referring to the company union that they
[the respondent's employees] have." Purdy denied having a conver-
sation with Mijares concerning the Union or the Independent. In
February 1940 Aurelio Zacharias, whose discriminatory discharge is
hereinafter discussed, joined the Union. Shortly thereafter, in the
tank house he had a conversation with Purdy during-which unions
were discussed. Zacharias, according to his testimony, pointed out
to Purdy the benefit of a strong union for the protection of the em-
"The record does not disclose the changes made by the respondent.
13 Technically known as the electrolytic refinery.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees and mentioned the Union as such an organization. Zacharias
testified that Purdy responded "that is the union that only brings the
employees nothing but trouble," and after stating that the respondent
could not pay the wages demanded by the C. I. 0., suggested that
Zacharias, who had previously joined the Independent, help make the
Independent strong. According to Zacharias' account, Purdy also
said : "You don't need another union. You have one union here now"
and warned Zacharias that if he continued to work for the Union he
would "have a lot of trouble with the Company."
Purdy admitted having a conversation with Zacharias in which
he told him that he had to operate his department economically in
order to hold his own job, but denied' encouraging Zacharias to work
with the Independent or discouraging him from joining the Union,
and also denied telling him that he would have trouble at the plant
if he did not withdraw from the Union. We find on the basis of
the entire record, as did the Trial Examiner who observed the
demeanor of the witnesses on the stand, that Purdy made substan-
tially the statements attributed to him by Mijares and Zacharias.
Purdy, as general foreman, is a supervisory employee, for whose
interference in employee self-organization the respondent is account-
able. By Purdy's statements to Mijares and Zacharias the respond-
ent manifested preference for the Independent and hostility toward
the Union.
Two employees, Castorena and Valdiviez, testified without con-
tradiction, and we find, that in the first part of 1940 William Van
Gilbert, assistant foreman in the tank house, advised them to go to
a meeting of the Independent at which the employees voted to
accept the respondent's offer of a 3 cent raise for all hourly paid
employees.14 Van Gilbert is clearly a supervisory employee, having
authority to recommend hire and discharge. Van Gilbert, in advis-
ing Castorena and Valdiviez to attend a meeting of the Independent,
further manifested to the employees- the respondent's approval of
the Independent.
B. Conclusions eonee7ming the Independent
We have found above that the Independent was organized and
headed by a group of minor supervisory employees whose activities
with respect to labor relations at the plant are attributable to the
respondent. We have also found above that by Martin's approval
of the committee's "Plan", of organization, the respondent illegally
u Van Gilbert testified that he advised Castorena to go after Castorena asked his advice
and did not testify concerning the circumstances of his request to Valdiviez to attend the
meeting.
PHELPS DODGE REFINING CORPORATION 1071
encouraged the Independent, ultimately recognizing it in success-
sive bargaining contracts as the exclusive bargaining representative
of the respondent's employees, and we have noted that the respondent
accepted as proof of majority representation the mere claim of the
Independent supported by a typewritten list of names.
Having fostered and assisted in the formation of an organization
acceptable to it, the respondent engaged in practices designed to
perpetuate the Independent as the only labor organization at the
plant. In the first part of 1940, shortly after the Union 'began
organizing among the employees, Foreman Purdy, by his remarks
to' Zacharias and Mijares, and Assistant Foreman Van Gilbert, by
encouraging employees to attend meetings,of the Independent, made
it clear to the employees that the respondent favored the Inde-
pendent over the Union. As we shall show, the respondent mani-
fested hostility toward the Union by engaging in surveillance of
union meetings,15 by discharging union members,16 and by other
illegal activities found below, and thereby further assisted the In-
dependent. Under all these circumstances, the employees cannot
have failed to recognize that the Independent bore the respondent's
stamp of approval. Such an organization is incapable of function-
ing as a true representative of the respondent's employees for the
purposes of collective bargaining.
We find, as did the Trial Examiner, that the respondent by the fore-
going acts, dominated and interfered with the formation and admin-
istration of the Independent, and contributed support to it, and inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed by Section 7 of the Act. We find further that
the respondent's collective bargaining agreements with the Independ-
ent are the fruit of the respondent's illegal acts and should be given
ho effect.
C. Further interference, restraint,, and coercion
1. Surveillance of union meetings by supervisory employees ; anti-
union declarations by Purdy
On the evening of February 6, 1940, the ,Union held a meeting in a
hall above the Fashion Clothing Store in El Paso. General Foreman
Purdy and Captain W. A. Simpson, employees whose positions are
such that the respondent is accountable for any interference by them
in employee self-organization," sat for 30 to 40 minutes in Simpson's
ss Section III C , infra.
ie In Section III D, infra, we find that Mijares , Sanchez, and Zacharias were discrimi-
natorily discharged because of their union activities
11 We have found that Purdy is a supervisory employee . Simpson described himself as the
respondent 's "special agent" and as its first aid man, and stated that he is in charge of
1072 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
parked car directly across the street from the Union's meeting hall and
admittedly saw and identified a number of the respondent's employees
who came to the meeting 18 Their explanation at the hearing was that
their presence was fortuitous. According to Simpson, whom Purdy
corroborated, they met by accident that evening at a nearby drug
store and Simpson offered to drive Purdy to his car, some distance
away. Becoming involved in a discussion of safety measures at the
plant, they continued the discussion seated in Simpson's car which
he had parked prior to entering the store. Both men denied having
had any intention of spying on the Union, or any prior knowledge
that there was a union meeting in progress. Simpson admitted that
they remained in front of the meeting hall for 15 or 20 minutes after
becoming aware of the presence of employees of the respondent at the
meeting hall.
The mutually corroborative and ulicontradicted testimony of Simp-
son and Purdy thus offers a plausible explanation of their presence
on the scene of the Union's meeting. If that were all we, should not
infer wrong intent from their otherwise suspicious conduct. How-
ever, twice in the ensuing few days, as noted below, Purdy reproached
employees whom he had identified at the meeting for having attended
it. On April 19, moreover, Simpson again visited the scene of a union
meeting, and his explanation of that incident is such that we must
reject it. Finally, Simpson was instrumental in providing employ-
ment at the plant for Gabe Escajeda who was, on March 21, 1940,
publicly exposed as an informer.
Shortly before the February 6 meeting Purdy had a conversation
at the plant with Salvador Castorena who works under his super-
vision in the tank house. The conversation touched on unions.
According to Castorena, Purdy asked him whether he believed in
unions, to which he replied that he did, in part; Purdy then said:
"Don't you know that most of the unions are rackets?"; and Castor-
ena answered that he believed that some, unions were. According
to Purdy, Castorena first asked what Purdy thought about unions,
Purdy answered "from what I read and heard about them, they
appear to me to be pretty much rackets," and Castorena agreed. We
accept, as did the Trial Examiner, Castorena's version of this con-
versation as substantially accurate. Cas_ torena nevertheless attended
the February 6 meeting and Simpson and Purdy saw him there.
Three or four days later he again conversed with Purdy, and again
their testimony concerning the conversation conflicts. Castorena
the safety department and the fire equipment He receives a straight salary like other
supervisory employees He is responsible for the employment by the respondent of Gabe
Escajeda whose role in labor relations is discussed below. We find that Simpson's position
is supervisory and is otherwise such as to identify him closely with the management.
18 These include Quintana, Lopez, Mijares, Sanchez, and Zacharias, who are named in
the complaint, as well as Salvador Castorena and Manuel Arizpe.
I
PHELPS DODGE REFINING CORPORATTON 1073
testified that Purdy asked him "what kind of a guy" he was, and
that when he inquired what Purdy meant the latter said : "a few days
ago you told me you didn't believe in the C. I. 0., and now you
went to one of the C. I. O. meetings," and added that Castorena
"wasn't very wise in going to those meetings." Castorena testified
further* that he then admitted having attended the meeting but
denied having joined the C. I. 0., and that Purdy said "Oh, yes, you
have" and, upon being challenged, showed Castorena a notebook
listing his name among others.19 Purdy testified that Castorena ap-
proached him and volunteered the statement that he,did not belong to
the Union, that Purdy replied that it made no difference as long
as Castorena did his work well, and that he did not recall "advising
Castorena against attending a C. I. O. meeting, having been "very
careful to avoid such a thing." Concerning the notebook, Purdy
testified that at work he had had' a small black notebook in his
hands innumerable times, but that he did not think he ever showed
Castorena any names in it. We accept Castorena's version of this
conversation over Purdy's, as did the Trial Examiner, and find that
the conversation occurred substantially as Castorena testified.
Zacharias is another employee whom Simpson and Purdy had
observed at the February 6 meeting. On the next working day Jose
Soto, an employee, informed Zacharias that Purdy had told Soto that
he had seen Zacharias and others at the meeting and was angry about
-it. Soto suggested that Zacharias get the matter straightened out
with Purdy.20 Acting on the suggestion, Zacharias sought Purdy in
his office. A conversation ensued, concerning which Zacharias testi-
fied as follows : He repeated to Purdy what Soto had said.. Purdy
replied, "Well, that is true, because I didn't expect that you and I,
after being as good friends as we^ have been, such an old worker
,that you are here would assist the meeting of a union that will bring
nothing but difficulty to the workers." Purdy further stated that he
knew that Zacharias had signed a membership card in the Union, and
urged Zacharias to withdraw the card and bring it to him. Zacharias
promised to do so.
Purdy testified concerning this conversation-as follows : Zacharias
approached him and volunteered the information that he had not
joined the Union, and Purdy replied that he had nothing to fear as
long as he performed his work properly. We find, as did the Trial
Examiner, that Zacharias's version of his conversation with Purdy is
19 Castorena also specifically recalled seeing the name of Alfred Arrenda, another employee.
The record does not disclose when Castorena joined the Union, although at the time of the
hearing he was its president.
20 Our findings concerning Soto's statements to Zacharias are based on the latter's testi-
mony, which Soto corroborated.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially accurate.21 We further find that, after the February
6 meeting and before the above conversation, with Zacharias, Purdy
told Soto that he had seen Zacharias at the meeting and was angry za
We find that by his statements to Castorena, Zacharias, and Soto,
Purdy evidenced hostility toward the Union and toward the employ-
ees who attended the union meeting on February 6 and in effect
warned the employees that membership in the Union would cause
them trouble in the plilnt, and that the respondent thereby interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
We turn to the second occasion upon which Simpson was present
in the vicinity of a meeting of the Union. On April 19, 1940, the
Union held an evening meeting at 3209 Frutas Street in El Paso.
That evening Simpson and Ira Ware, the highest paid watchman
at the respondent's plant,23 sat in Ware's car which was parked on
Frutas Street across the street, and several doors away, from the
Union's meeting place. A number of the respondent's employees
saw Simpson in the car. The latter, however, testified that he "never
saw a soul he knew" while parked on Frutas Street and the he
knew nothing about a meeting until the occurrence of the following.
incident : "Two men walked up to the car on the side that Ware was
on and called for Escajeda'24 and no one answered, so they walked
up to the car and asked us if we wanted to join the C. I. 0."; Ware
asked them "something about where it was and 'what it cost, or some-
thing, and where it was at"; and they replied that the C. I. O. was
holding a meeting down the street. Simpson further testified that
having thus been observed, he and Ware drove away.
Simpson testified that he and Ware were in the neighborhood of
the meeting solely because he had received a letter through the mail
that morning from Chris Fox, Sheriff of El Paso County, Texas,
requesting him and Ware to give Fox "a little help" in searching
21 The testimony of Zacharias is consistent with the evidence respecting Purdy's attitude
as revealed in other conversations with employees . It is consistent , moreover, with either
version of Purdy ' s conversation with Castorena prior to the February 6 meeting , for under
both versions Purdv stated that he considered unions to be rackets
22 Soto made similar representations to Carlos Sanchez , whose discriminatory discharge
is discussed below, and Alfonso Sanchez, concerning Puidy's displeasure upon discovering
employees at the February 6 meeting At the hearing he stated that he "took it upon
himself" to use Purdy ' s name to discourage membership in the Union If this be viewed
as a denial of the truth of what Soto admittedly told Zacharias , we disbelieve it. The
record gives no indication and we are unable to Perceive how Soto could , on the first work-
ing day after the meeting at which Purdy saw Zacharias, have fabricated a story so
consistent with the established facts Purdy himself, as we have found, admitted to
Zacharias the truth of Soto's remarks At the hearing he denied it only to the extent of
testifying that be did not discuss employees with Soto
z3 Ira ( J I ) Ware did not testify at the hearing Ile is a member of the Independent
and-the father of T 'II Ware, the Independent's secretary-treasurer
2{ Escajeda woiked botli for the respondent and for Chris Fox, Sheriff. of El Paso County,
Texas On Maich 21 , 1940, lie testified for the prosecution in a criminal action against a
C 1 0 organizer and was thereafter geneially known by the employees as an informer.
PHELPS DODGE. REFINING CORPORATION 1075
for a fugitive who had robbed a post office.2' This letter, in evidence,
reads as follows :
SHERIFFS DEPARTMENT
COUNTY OF EL PASO
EL PASO-TEXAS
APRIL 19th, 1940.
Mr. W. A. SIMPSON and IRA WARE,
Phelps Dodge Refining Corp., El Paso, Tex.
DEAR CAPTAIN and IRA : Since 1934 we have been trying to get
one CRISTOBAL SAMBRANO who robbed the postoffice in
Mesquite, New Mexico.
He is about 22 or 23 years of age at this time, 5' 5" tall, weight
123 lbs., small build, brown eyes, dark hair and dark complexion.
We have had information several times that he was seen in
Juarez and we have never been able to do any good in getting him
across. Recently we had information that he was coming across
and was hanging around the 3200 block on Frutas Street.
I am asking you two boys to give me a little help on this, know-
ing you as being experienced officers and it might earn you a little
extra money as you know there is always a reward for a post-
office job and too at this time I am a little short on help on account
of the auto theft situation.
If you will assist me in trying to pick up this CRISTOBAL
SAMBRANO I will certainly appreciate same and feel that you
will be helping yourselves in so doing.
Thanking you in advance and with kindest personal regards
and best wishes, I remain
Yours very truly, -
(S)
CHRIS P. Fox, Sheriff.
CHRIS.
El Paso County, Tex.
CPF:S
It may be observed that the letter does not specify any particular
place in the block on Frutas Street where the fugitive might be found,
or any particular company which he might be expected to keep, and
states no day or hour when he might be expected to appear.
The respondent, admitting that Simpson was in the vicinity of the
union meeting on April 19 contends, as it did in connection with the
first case of surveillance discussed above, that Simpson's presence was
w Both Simpson and ware are Texas Rangers and peace officers of El Paso County.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a mere coincidence. It argues that on the night in question Simpson
and Ware were on official business for Sheriff Fox. _
If the genuineness of the letter were accepted, Simpson's expla-
nation of his presence on Frutas Street is far from persuasive. Sheriff
Fox also testified about the incident, however, and when his testimony
is considered, with that of Simpson, it is impossible to believe that the
letter is genuine, or that Simpson went to Frutas Street for any reason
other.than to spy on the union meeting.
Fox testified that he had received a "hot tip" on the fugitive in
question at about 7 a. in. on April 19, that he tried to get hold of
Simpson that morning but could not, and so he wrote the letter. He
gave no testimony to explain why he did not attempt to telephone Ware,
who is also addressed in the letter. Fox stated that he did not know
how the letter reached Simpson and Ware, but testified that if letters
"are urgent, we take them over to the Post Office when we go to get
the 9, 00 o'clock mail after we get the early mail, or else they put them
in the box outside, or take them to the Post Office at noon, either way."
As to his reason for recommending that Simpson and Ware watch
the 3200 block on Frutas Street, Fox testified : "Well, we didn't know
exactly that morning, when we got the information, just exactly where
this place was going to be, and yet we knew it was a meeting place
where this group under Mr. Robinson [the C. I. O. organizer] were
meeting." When asked if he did not have the C. I. O. meeting hall
in mind Fox replied : "Well, he [the fugitive] happened to fraternize
with a few of these boys, and I assumed that where they vent, he
might have appeared, too." He further testified that he wrote the
letter requesting Simpson's help because Simpson "'knew his em-
ployees, he could tell' them, and would have occasion to observe if this
man were there."
The implication of Fox's testimony is,that the fugitive was not an
employee of the respondent, but associated or was believed to associate
with certain of the C. I. O. members among them, so that Simpson's
services were enlisted to watch the meeting with a view to identifying
a stranger among the employees who went there. When ,it is recalled
.that Simpson explained his presence on Frutas Street solely,upon the
basis of the letter, that the letter does not make the explanation given
by Fox at the hearing, and that Simpson testified that he went to
Frutas Street and sat there pursuant,to the instructions in the letter,
but knew nothing about a meeting until he and Ware were accosted
and, invited to join the C. I. 0., the letter assumes the aspect of a
clumsy piece of fabrication, designed solely to give Simpson an excuse
for his presence at the union meeting place. In view of the testimony
concerning, its dispatch and receipt and the entire record, we are not
even persuaded that it was in existence at the time of the occurrence
under discussion.
PHELPS DODGE REPINING CORPORATION 1077
. We-.are of the opinion, and find, that Simpson went to the vicinity
of the Union's meeting place on the evening of April 19, 1940, knowing
that there was to be a meeting, because he desired to ascertain the
identity of those attending, and that he watched the meeting place
with that purpose until he was observed.
Under all the circumstances, moreover, we cannot accept Simpson's
and Purdy's explanation of their presence in the vicinity of the
Union's earlier meeting on February 6, but conclude that at that time
they also were there for the purpose of surveillance. We find that
the respondent, through Simpson and Purdy on February 6, 1940,
and through Simpson on April 19, 1940, engaged in surveillance of
meetings of the Union, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. The employment of Escajeda
Since January 1939, Sheriff Fox has employed Gabe Escajeda as
a special secret investigator to obtain information concerning cer-
tain alleged radical activities in El Paso County. In October 1939
Escajeda, while still in the employ of Fox, was employed by the
respondent, through Simpson, as a common laborer. Thereafter,
the respondent promoted Escajeda with a wage increase to the posi-
tion of mechanic's helper, which job he occupied at the time of the
hearing. Thus, since October 1939 Escajeda has been in the employ
of both the respondent and Fox.
While occupying this dual employment status, Escajeda engaged
in espionage, allegedly only for Fox, at the respondent's plant by
questioning the employees concerning their membership in the Union,
their attitude toward, the Independent, and their radical or com-
munistic leanings. The record is replete with instances, many ad-
mitted by Escajeda, when he not only sought information, but told
the respondent's employees that the Union was subversive, that it
could not obtain the higher wages it promised, and that the employees
were foolish to join it.
The respondent denies that it employed Escaj eda for the purpose
of spying on the union activities of its employees and disclaims'
responsibility for, his conduct, contending that the evidence shows
that all his informing and anti-C. I. O. activity was "for and under
the direction of the Sheriff of the county." Escajeda testified that
he never discussed his- employment by Fox with Simpson. Fox
testified that he had nothing to do with Escajeda's employment by
the respondent and that he had no discussion with Simpson con-
cerning it. Fox admitted, however, that he expected -Escajeda to
continue his "communist work" and obtain information on the
433257-42-voL. 37-69
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. I. 0.211 while in the employ of the respondent. Escajeda testified
that he reported to Fox information concerning the Union and its
membership at the respondent's plant obtained through his employ-
ment, there. Fox admitted that the information concerning the
Union which was reported to him by Escajeda2i had been "given
out," but failed to mention any names. Simpson did not testify as
to whether or not the information obtained by Escajeda was made
available to Simpson or the respondent.
Since the employment and use of a labor spy is usually the result
of a secret understanding predicated upon facts and circumstances
known only to the principals, the respondent's denial of responsibility
for Escajeda's activities, as well as the foregoing testimony, must, be
examined in light of all the objective facts bearing upon the activi-
ties of the parties involved and their relationship to each other. In
this connection we observe that Escajeda secured his employment with
the respondent through the instrumentality of Simpson; that Fox,
according to his testimony, was a frequent visitor at the respondent's
plant, became acquainted with many of its officials, and had a "very
close and sentimental interest" in the respondent's plant; 28 that Fox,
like the respondent, encouraged membership in-the Independent and
discredited the Union; 29 and that Fox was involved with Simpson in
the latter's illegal surveillance of a union meeting.
Under all the circumstances we infer, and find, that Simpson caused
Escajeda to be employed by the respondent, knowing that he was
also in the employ of Fox as an informer; to enable Escajeda to
engage in activities at the plant to discredit the Union and to obtain
information concerning the union activities of the respondent's
employees .31
Moreover,,even after it was publicly acknowledged on March 21,
1940, that during his employment by the respondent Escajeda was also
21 When asked if Escajeda was not expected to give information on the C. I. 0., Fox
replied : -
Well, not directly C. I 0., but I wasn't smart enough to be able to separate one from
the other, and I guess we just kind of took it that way.
Z'' Soto, an employee, whose anti -union activities are discussed below, testified that
Escajeda had given him the names of union members in the plant. '
2 In 1928 or 1929 Fox, before becoming sheriff, was employed by the respondent as
"trucking and rigging contractor" during the construction of the respondent 's plant.
21 Fox admitted that he addressed a meeting of the Independent , which we have found
above to be employer-dominated, stating that in his opinion the C. I. 0. was not a good
organization because it 'could not be distinguished from the Communist party and because
it was in close association with the C . T. Al., a labor organization in Mexico.
80 Cf. Matter of Baldwin Locomotive Works and Steel Workers Organizing Committee, 20
N. L. R B, 1100; Matter of Montgomery , Ward and Company and Warehouse Employees'
Union No. 20 , 297, affiliated with the A. F. L., 17 N. L. R. B. 191, enf'd Montgomery, Ward
and Company v. National Labor Relations Board, 115 F. (2d) 700 (C. C. A. 8) ; Matter
of Bethlehem Steel Corporation , a Delaware corporation, et al., and Steel Workers Organiz-
ing Committee, 14 N. L. R. B. 539; enf'd Bethlehem Steel Co. v. National Labor Relations
Board, 120 F (2d) 641 , (App. D C ). -
PHELPS DODGE REFINING CORPORATION 1079
employed as an informer, at least for Fox,31 the respondent continued
Escajeda's employment without repudiating, or disassociating itself
from, the surreptitious activities of Escajeda which had occurred on
the respondent's premises and time. By thus continuing Escajeda's
employment without taking any affirmative action to -disavow his
informing activity, the respondent encouraged its employees in the
belief that Escajeda had acted with its consent and approval and
that the results of his espionage had been made available to it. This
course of conduct tended to thwart the organizing work of the Union
and to strengthen its rival, the employer-dominated Independent.
We find that by the employemnt of Gabe Escajeda under the cir-
cumstances described above the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
3. Purdy and the anti-union statements of Jose Soto
Jose Soto has been employed for 9 years as a meter man in the tank
room, one of the departments under General Foreman Purdy. Al-
though Soto may be classed as an old and trusted employee, his duties
are not supervisory.u Soto testified that he told almost every em-
ployee in the tank room that the Union was dangerous to the employees,
that it would get them into trouble, and that it was communistic.33
By his own admission, he consistently represented that his declara-
tions represented the viewpoint of Purdy and were made with Purdy's
authority. On several occasions, and particularly after the -union
meeting of February 6, 1940, which had been observed by Simpson
and Purdy, he told employees that Purdy had said that he was angry
because of their associations with the Union, and sometimes told them
that they should square themselves with Purdy. We have found above
that Soto made such a representation to Zacharias which was affirmed
by Purdy when Zacharias confronted him with it. Another employee,
Manuel Arizpe, who had also been observed by Simpson and Purdy
8 Escajeda stated at the hearing that he testified on the above date in a criminal pro-
ceeding against a C. I. 0. organizer, and that it then became generally known that he was a
special investigator for Sheriff Fox.
3' A meter man carries a millevolt meter by which he reads the voltage drop between the
copper cathodes and anodes within an electrolytic tank, and thereby determines where the
electric circuits are bad. Upon finding a bad circuit or a dirty contact , lie marks the
sheet of copper with a piece of chalk. Two hot-sheet men follow each meter man, spot the
sheets which are so marked , and adjust the trouble One meter man and two hot-sheet men
are included in the group which does this work . The meter man does not give instructions
to the hot-sheet men and he has no supervisory authority.
83 Soto testified that he had developed strong repugnance to the C. I. 0. and the Union
for the following reasons: ( 1) He was aware "of the difficulties of many of the fellow
workers that went into the C I. 0." with a local bakers' labor organization ; ( 2) "My
friend , Gabe Escajeda , has shown me many papers that show or prove that the C. I. 0.
was communist" ; ( 3) Sheriff Fox , in a speech to the Independent , had stated that Robinson,
the C . I 0. organizer , "carried a membership of.tlie communist party in his back pocket."
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the union meeting of February 6, was told by Soto, just after the
discharge of Carlos Sanchez on March 27, 1940, hereinafter discussed,
that someone had informed Purdy that Arizpe was soliciting union
memberships inside the plant. This led Arizpe to tell Purdy what
Soto had said and to ask that Purdy tell him the name of the man
that gave him such information. Purdy replied that he was not in
the habit of repeating what people said to him.
The respondent contends that because Soto did not exercise super-
visory authority and because it did not authorize him to make state-
ments against or concerning the Union with or without Purdy's name,
the respondent is not bound by his statements. However, we attribute
Soto's remarks to the respondent on grounds other than the nature
of Soto's work. Purdy's admission to Zacharias, as found above, that
he had made the anti-union remarks to Soto which the latter had,
repeated to Zacharias and that those remarks correctly reflected his
attitude, made it -clear to Zacharias as well as the other employees,
especially since on other occasions both Purdy and Soto had expressed
similar hostility toward the Union, that Purdy intended to and did
hold Soto out to the employees as his spokesman for the purpose of dis-
couraging membership in the Union. Moreover, Purdy, after being
informed that Soto was freely using his name as authority for anti-
union statements took no effective remedial steps to disclaim responsi-
bility for them.3 We are of the opinion that Purdy thereby intended
that the employees consider such statements as his utterances. Under
the circumstances the respondent is responsible for Soto's anti-union
remarks. _
We find that the respondent, through Soto, evinced its hostility
toward the Union and its members, influenced its employees against,
and interfered with their participation in, the Union, and thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
D. The discriminatory discharges
The complaint alleges that during February and March 1940 the
respondent discriminatorily discharged Domingo Lopez, Nicholas
Quintana, Genaro Franco, Ladislao Molina, Luis Mijares,, Carlos
Sanchez, and Aurelio Zacharias. In its answer the respondent alleges
84 Although the record shows that Soto was mildly reproached by Purdy for using his
name in the anti-union conversations with the employees , the employees were never in-
formed of this. Moreover, we note that in contrast with the mild approach to Soto for
his conduct in this connection , another employee , White, was discharged , according to
Purdy's testimony , for spreading falsehoods in the plant concerning the respondent 's over-
time practices . Cf. Swift & Company v. National Labor Relations Board, 106 F. (2d) 87
(C. C. A. 10), rehearing denied 106 F. (2d) 94, enf 'g Matter of Swift & Company, a Cor-
poratcon and Amalgamated Meat Cutters and Butcher Workmen of North America, Local
No. 641, et al., 7 N. L. R. B. 269. -
PHELPS DODGE REFINING CORPORATION 1081
that Zacharias was discharged for cause and that the remaining em-
ployees named above were -laid off because of curtailment in pro-
duction.35
In or before the middle of December 1939, Martin, the respondent's
works manager, was informed by the respondent's New York office that
beginning in January 1940 there would be a decrease in the volume
of copper shipped to the El Paso refinery. Martin relayed this in-
formation to the several department heads at the plant with instruc-
tions to prepare for a reduction in the number of employees. There-
after, copper receipts decreased from 14,733 tons in December 1939,
to 9,882 tons in April 1940, and the copper production showed a cor-
responding decrease. The record shows that between January 1 and
March 31, 1940, in which period the discharges complained of oc-
curred, a total of 14 production employees including Zacharias, who
the Company alleges was discharged for cause, were separated from
the pay roll. In the following September production operations in-
creased and by October the respondent had a normal pay roll.
We find that, as the respondent contends, curtailment of production
required the dismissal of a number of employees. , As to the six em-
ployees other than Zacharias, the issue remains whether in selecting
them for dismissal, the respondent was motivated by anti-union bias.
In selecting employees for lay-off, the respondent's stated policy is to
lay off the least efficient first and where efficiency is deemed to be equal,
length of service is controlling. Purdy, general foreman of the tank
house and blue vitriol department, testified that he observed this policy
in laying off Mijares, Sanchez, and Franco; J. A. Rule, foreman of
the receiving department, testified that he followed it in laying off
Lopez, Quintana, and ,Molina.
Mijares and Sanchez
Luis Mijares was first employed by the respondent in August 1937
as an apprentice to a hot-sheet man and within two months he was
promoted to a regular hot-sheet job. His employment record shows
that he worked steadily until January 31, 1938, when he was laid off; 36
that he returned to work on November 9, 1938, and was laid off again
on January 31, 1939; and that his last period of'employment was from
April 24, 1939 to March 19, 1940, when he was discharged. He joined
the Union on or about February 3, 1940, and attended its February 6
meeting, discussed above.
as While the respondent states that Lopez, Quintana, Franco, Molina , Mijares, and Sanchez
were laid off, it is apparent that they in effect were discharged . Their names were removed
from the pay, roll and their employment relationship was severed . Lopez, Quintana , Franco,
and Molina , were thereafter rehired in the fall of 1940, but were then considered new
employees for all purposes.
-m Apparently on January 31, 1938,'there was a general lay-off at the plant.
1082 DECISIONS OF - NATIONAL - LABOR RELATIONS BOARD
Carlos Sanchez-was first employed by the respondent on September
9, 1937, and worked until January 31, 1938, when he was laid off. He
was reemployed on August 15, 1938, and worked as a hot-sheet man
until he was discharged on March 27, 1940. He joined the Union in
the first part of 1940 and attended its February 6 meeting.
As of January 30, 1940, Mijares had seniority over approximately 4,
and Sanchez over approximately 6, of the 23 persons classified on the
respondent's pay roll as hot-sheet men.37 So far as the record dis-
closes, Mijares and Sanchez were the only hot-sheet men discharged
between January 1940 and the time of the hearing.
Mijares testified that when he was given his cease-work slip on
March 19, 1940, Purdy told him that he was being discharged for
spending too much time "molesting" his fellow employees by talking
with them about the Union, stating, however, that Mijares' work was
satisfactory. At the hearing Purdy admitted telling Mijares that the
latter had spent too much time talking with his fellow employees, but
denied mentioning the Union in the conversation, stating that he did
not know the subject of Mijares' conversations. We accept Mijares'"
version of the conversation which is consistent with Purdy's avowed
hostility toward the Union, as found above.
Sanchez testified without contradiction and we find that on March
27, Purdy told him that he was being discharged because five sections
had been stopped ; and that in reply to Sanchez's remark that men with
less service were being retained, Purdy said that Sanchez was being
discharged "especially."
In support of the respondent's contention that Mijares and Sanchez
were laid off because curtailed operations necessitated a reduction of
the force, Purdy testified that when it became necessary to reduce the
force he went over the list of employees with his assistant foremen,
Van Gilbert and Saunders, and certain employees were selected to be
laid off. Purdy further testified that Mijares was selected because hei
had spent too much time during the past 12 or 14 months talking to
his fellow employees 36 and because he was less efficient than the other
employees who were retained; and that Sanchez was chosen for the
lay-off "upon the basis of ability," after taking into consideration his
length of service with the respondent. We are not impressed by
Purdy's vague and general testimony concerning the alleged reasons
why Mijares and Sanchez were selected for the lay-off instead of the
S'' According to the respondent' s policy, when an employee 's name is removed from the
pay roll he loses his seniority status and if he is subsequently rehired , his seniority is
calculated from the date of his reemployment. Thus, Mijares' seniority dated from April
24, 1939, and Sanchez's from August 15, 1938.
' The 'record affirmatively shows and we find that Mijares had never been reprimanded
for this alleged deficiency and that it was never mentioned to him until he was discharged.
It is evident that either Mijares' conversations with his fellow employees did not materially
affect his efficiency or that until be joined the Union the respondent failed to attach any
significance to-his conversations.
PHELPS DODGE' REFINING CORPORATION 1083
other hot-sheet men who were junior to both of them in length of serv-
ice. Except as indicated above. Purdy failed to testify concerning
.the relative efficiency of these two men and the other junior employees
who were retained.39 Assistant Foreman Van Gilbert who, according
'to Purdy, assisted in selecting these two employees for the lay-off,
testified at the hearing but did not advert to Purdy's testimony set
'forth above or otherwise explain why Mijares and Sanchez were se-
lected for the lay-off. On the other hand, Mij ayes' employment card,
in evidence, bears the notation "a good worker" and no complaint had
ever been lodged against his work or that of Sanchez. We conclude,
notwithstanding Purdy's testimony, that both men were capable and
efficient employees:
While the respondent failed to establish any convincing reason
why General Foreman Purdy selected Mijares and Sanchez as the
only two hot-shot men to be laid off, it is apparent from our fore-
going findings that the- respondent was desirous of eliminating the
'Union and its adherents. Both Mijares and Sanchez were mem-
bers of the Union and were observed at the union meeting of Feb-
ruary 6 by Purdy. Despite the respondent's many hostile acts and
statements calculated to discourage membership in the Union, as
found above, these two employees remained loyal union members
and thus became logical persons for Purdy to discharge on any
pretext in furtherance of the respondent's plan to destroy the Union.
We conclude from all the evidence that the respondent. utilized its
reduction of force to effect the discharge of Mijares and,Sanchez
because of their union activities.
We find that the respondent discharged Luis Mijares on March
27, 1940, and Carlos Sanchez on March 28, 1940, because of their
membership in and activity on behalf of the Union and that it
thereby discriminated in regard to their hire and tenure of em-
ployment, discouraged' membership in the Union, and interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Aurelio Zacharias
Zacharias , was continuously employed by the respondent from
November 15, 1930, until March 28, 1940, when he was discharged
by General Foreman Purdy. He was first employed as a hot-sheet
man and several years later he was promoted to work as a meter
man in the tank room, the job he held at the time of his discharge.
During his 10 years of employment he received a number of wage
81 Sanchez testified without contradiction that Ausencio Valdez , a hot-sheet man, junior to
him in length of service , who was not included in the instant lay-off, had been included in
a previous lay-off in 1939 ; at which time Sanchez , instead of being laid off, was given
work on the night shift.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increases, was never laid off, and received no complaints concerning
this work. In 1932 when the number of employees in the tank room
was reduced from approximately 100 to 14, Zacharias continued at
work. In 1938 Zacharias joined the employer-dominated Inde-
pendent, remaining a member for about 3 months. On or about
February 3, 1940, he joined the Union.
On the morning of March 27, 1940, Zacharias failed to report for
work at the plant. At approximately 10: 30 that morning, at the
request of Zacharias' sister who spoke no English, one Delegado
informed Purdy by telephone that Zacharias would not be at work
that day because of an automobile accident suffered by friends;
Purdy replied that "It was perfectly all right." When Zacharias
returned to work the following day, March 28, Purdy requested an
explanation for his absence on the preceding day. Zacharias ex-
plained, as Delegado had previously informed Purdy, that he,
Zacharias, had gone to get an automobile belonging to friends which
had broken down in Mexico and that it had been impossible for
him to return to work. Purdy then discharged Zacharias. While
Purdy was making out Zacharias' time slip, Zacharias said, "Mr.
Purdy, you know we have discussed this many times and this is why
I have always told you that we need a union that will protect all
the employees in the plant." Purdy replied, "Well, I am sorry but
I can't do anything else."
At the hearing Purdy testified that Zacharias was discharged because
•he failed to report for work on March 27 40 and on three or four prior
occasions and ' because Purdy did not believe the excuse offered by
Zacharias for his absence on March 27 41 As the reason for his dis-
charge, Zacharias' employment card states "Failure to show up for
work. This is the 4th or 5th time." The record shows that during his
10 years of employment by the respondent, Zacharias had failed to re-
port for work on several occasions and that on one occasion in 1939
Purdy threatened Zacharias with a lay-off for failing to report for
work. Zacharias testified that at that time Purdy said that the next
time Zacharias was absent from work he would be laid off several days
as a penalty. In this connection Purdy testified that he did not specify
the duration of the lay-off. In any event it is clear that Purdy did not
contemplate a discharge for such an offense.
a Although there is a custom at the plant for the employees to give the respondent ad-
vance notice if they intended to be absent from work , Zacharias ' failure to give such notice
of his absence on March 27 does not appear to have been a decisive factor in his discharge.
"As the basis for discrediting Zacharias ' excuse for his absence Purdy testified that on
the morning of March 26 , the day before Zacharias ' absence, Purdy , over another telephone
extension , overheard part of a telephone conversation at the plant between Zacharias and
a woman, in which the latter greeted Zacharias in affectionate terms and requested him
to come immediately to a local hotel ; that after the conversation , Zacharias , "with a long
,sorrowful face, " asked permission to be off for the remainder of the day as someone in his
family was ill ; and that after this request was denied, Zacharias failed to report for work
the next day.
PHELPS DODGE REFINING CORPORATION - 1085
Although Zacharias had been absent from his work on three or four
occasions, the record does not disclose that such absences were con-
sidered excessive over the period of his employment or that he had
indulged in this practice more often than had other employees of the
respondent.42 In light of Zacharias' long, continuous, and satisfactory
service record, mentioned above, we do not believe that Zacharias would
have been given the extreme penalty of discharge, if the respondent
had not been motivated by reasons other than those here asserted.
On the other hand, Zacharias was one of the employees who belonged
to and assisted the Union, which the respondent desired to destroy.
As found above, he refused Purdy's personal request to assist the em-
ployer-dominated Independent and was warned by Purdy that if he
continued to work for the Union he would "have a lot of trouble with
the Company." Despite this admonition, Zacharias continued his
activity on behalf of the Union and attended its meeting on February
6, 1940, where he was seen by Purdy who had that meeting under sur-
veillance. We are of the opinion that Purdy used Zacharias' failure to
report for work as a pretext for his discharge in order to penalize
Zacharias for his union activities and to convince other employees that
membership in the Union would result in discharge on the slightest
provocation.
Upon the entire record we find, as did the Trial Examiner, that on
March 28, 1940, the respondent discharged Zacharias because of his
membership and activity in the Union, and thereby discriminated in
regard to his hire and tenure of employment, discouraged membership
in the Union, and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
In his Intermediate Report the' Trial Examiner, after discussing in
detail the cases of Franco, Molina, Lopez, and Quintana, found that
these persons were not discharged because of their union activities
and recommended that the complaint be dismissed as to them. We
have carefully examined the entire record and agree with the con-
clusions of the Trial Examiner in this respect. The Union has filed no
exceptions to the Intermediate Report. We shall dismiss the com-
plaint as to Franco, Molina, Lopez, and Quintana.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, oc-
curring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
"The respondent failed to introduce documentary evidence showing the number of times
other employees had failed to report for work. Although Purdy named two other employees,
Rivera and Nunez, as having been laid off, although subsequently reemployed, for being
absent too many times , he did not mention the number of occasions on which they had
failed to report to work and over what period of time.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes, burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in and is engaging
in certain unfair labor practices in violation of the rights guaranteed
employees by Section 7 of the Act, we shall order it to cease and
desist from engaging in such practices and take certain affirmative
action designed to effectuate the purposes of the Act.
We have found that the respondent dominated and interfered
with the formation and administration of the Independent and con-
tributed support to it. In order to effectuate the policies of the
Act and free the employees of the respondent from such domination
and interference, and the effects thereof, which constitute a continu-
ing obstacle to the exercise by the employees of the rights guaran-
teed them by the Act, we shall order the respondent to withdraw
all recognition from the Independent as the representative of any
of the respondent's employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, and conditions of employment, and completely
to disestablish it as such representative. Having found that the
collective bargaining agreements with the Independent are the fruit
of the respondent's unfair labor practices, we shall further order
the respondent to cease and desist from giving effect to any and all
outstanding agreements with, the Independent, as well as to any ex-
tension, renewal, modification, or supplement thereto. Nothing in
this Decision or in our Order should be taken, however, to require
the respondent to vary those wage, hour, and other substantive fea-
tures of its relations with the employees themselves, if any, which
the respondent established in the performance of such contract as ex-
tended, renewed, modified, supplemented, or superseded.
We have found that the respondent has discriminatorily discharged
Luis Mijares, Carlos Sanchez, and Aurelio Zacharias. The respondent
in its answer alleges that Mijares and Zacharias are citizens of, and
reside in, the Republic of kfexico; that Sanchez is an American citi-
zen' residing in Juarez, Mexico; and that the respondent has not
sought to reemploy Mijares, Zacharias, and Sanchez because "it is
informed and believes that it could not legally make contract with
them in Mexico for them to come back here [El Paso] to work." 4"
In this connection, however, we observe that on several occasions fore-
" In support of this position , the respondent adverts to the "contract labor law," 8 U. S.
C. A., Section 136' (h ), which excludes certain aliens from admission to the United States,
and Section 139, the companion penal statute.
PHELPS DODGE REFINING CORPORATION 1087
men of the respondent requested certain employees to notify other
laid off employees of the respondent, who were in Juarez, to report
for -work at the, plant. Sanchez is an American citizen to whom the
-law in question could have no application. We are satisfied moreover
that the statute here involved does not affect our plenary power under
Section 10. of the Act to issue an order -requiring the respondent to
take such hflirmative remedial action with respect to these employees
as will effectuate the policies of the Act. Accordingly, we shall order
the respondent to offer these employees immediate and full reinstate-
ment to their respective former or substantially equivalent positions,
without prejudice to their respective seniority or other rights and
privileges, and to make each of them whole for any loss of,pay 44
he may have suffered by reason of the respondent's discrimination
against him by payment to each of them of a sum of money equal to the
amount which he normally would have earned as wages from the date
of his discriminatory discharge to' the date of the respondent's offer
of reinstatement less his net earnings during such period.45
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF LAw
1. International Union of Mine, Mill and Smelter Workers, and
Copper Refinery Employees Independent Union No. 1 are labor or-
ganizations, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of Copper Refinery Employees Independent Union No. 1, and
contributing support to it, the respondent has engaged- in and is
engaging in unfair labor practices, within the meaning of Section
8 (2) of the Act.
3. By discharging and refusing to reemploy Luis Mijares, Carlos
Sanchez, and Aurelio Zacharias, and thereby discouraging member-
ship in International Union of Mine, Mill and Smelter Workers, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act. -
" The respondent offered at the hearing to reinstate these three men upon - application.
This offer does not, however , operate to reduce the amount of back pay otherwise due
these employees because said offer of reinstatement did not include back pay and the
restoration of seniority or other rights and privileges which these men had at the time of
their discriminatory discharge See Matter of Dixie Motor Coach Corporation and Sunshine
Bus Lines, Inc and Brotherhood of Railroad Trainmen , 25 N. L. R B.,,No 98.
41 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for,
work performed upon Federal , State, county , municipal, or other work-relief projects shall
be considered as earnings . ' See Republic Steel' Corporation v. N. L. R. B., 311 U. S. 7.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. By laying off Genaro Franco, Ladislao Molina, Domingo Lopez,
and Nicholas Quintana, the respondent has not engaged in unfair
labor practices, within the meaning of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Phelps Dodge Refining Corporation, El Paso, Texas, its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Copper
Refinery Employees Independent Union No. 1, or the formation or
administration of any other labor organization of its employees, and
from contributing support to Copper Refinery Employees Inde-
pendent Union No. 1, or to any other labor organization of its
employees ;
(b) Recognizing Copper Refinery Employees Independent Union
No. 1 as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of
employment;
(c) Giving effect to its contacts above described, or any other con-
tracts or agreements it may have entered into, with Copper Refinery
Employees Independent Union No. 1, in respect to wages, hours, or
other conditions of employment;
(d) Discouraging membership in International Union of Mine,
Mill and Smelter Workers or any other labor organization of its em-
ployees, by' discharging or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire or
tenure of employment, or any terms or conditions of employment;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives oftheir 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.
PHELPS DODGE! REFINING CORPORATION 1089
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Copper Refinery Employees
Independent Union No. 1 as the representative of any of its em-
ployees for the purpose of dealing with the- respondent 'concerning
grievances, labor disputes, wages, rate of pay, hours of employment
or other conditions of employment, and completely disestablish Cop-
per Refinery Employees Independent Union No. 1 as such repre-
sentative;
(b) Offer to Luis Mijares, Carlos Sanchez, and Aurelio Zacharias
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges;
(c) Make whole Luis Mijares, Carlos Sanchez, and Aurelio Zach-
arias for any loss of pay they may have suffered by reason of the
respondent's discrimination in regard to their hire or tenure of em-
ployment by payment to each of them of a sum of money equal to
that which he would normally have earned as wages from the date
of his illegal discharge to the date of the respondent's offer of rein-
statement, less his net earnings during said period;
(d) Immediately post in conspicuous places at its El Paso refinery
and maintain for a period of at least 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), (b), (c), (d), and
(e), of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), and (c) of this Order; and
(c) that the respondent's employees are free to become or remain
members of International Union of Mine, Mill and Smelter Workers,
and that the respondent will not discriminate against any employee
because of membership or activity in that organization;
(e) Notify the Regional Director for the Sixteenth Region in
writing "within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent has discriminated
against Genaro Franco, Ladislao Molina, Domingo Lopez, and Nich-
olas Quintana in regard to their hire and tenure of employment, with-
in the meaning of Section 8 (3) of the Act.
MR . GERARD D. REILLY took no part in the consideration of the
above Decision and Order.