Phelps Dodge Refining Corp.

National Labor Relations Board - Board Decisions

Jan 27, 1942

38 N.L.R.B. 555 (N.L.R.B. 1942)

In the Matter of PHELPS DODGE REFINING CORPORATION and LOCAL
501, INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS,
AFFILIATED WITH THE C. I. O.
Case No. 0-1954.-Decided January 27, 1942
Jurisdiction : copper refining industry.
Unfair Labor Practices
In General
Employer held responsible for the anti-union statements of an employee,
where, with the knowledge of that employee's anti-union animus and his
reputation as a labor spy, it encourages him in such activities, fails to advise
the employees generally that he does not represent the respondent, and there-
after promotes him.
Interference, Restraint, and Coercion: Anti-union statements.
Discrimination: refusal, because of union activities, to comply with previously
expressed intention to reinstate an employee to a less unhealthy job ; refusal,
because of union activities, to reinstate an employee to a less unhealthy job,
as it had done before the commencement of union activities, causing the em-
ployee to quit his employment because of resulting illness ; discharge of em-
ployees for union activities, upon various pretexts.
Remedial Orders : reinstatement to positions from which eiployees had been
discriminatorily excluded or discharged ; back pay.
Mr. V. Lee McMahon and Mr. Albert P. Wheatley, for the Board.
Burges, Burges, Scott d Hulse, by Mr. William H. Burges and Mr.
James F. Hulse, of El Paso, Tex., and Reeves, Todd, Ely d Beaty, by
Mr. Julian B. Beaty, of New York City, for the respondent.
Mr. Mark Robinson and Mr. James Robinson, of El Paso, Tex.,
and Mr. D. William Leider, of New York City, for the Union.
Mr. Milton E. Harris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On charges duly filed by Local 501, International Union of Mine,
Mill & Smelter Workers, affiliated with the Congress of Industrial
Organizations, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Six-
38 N. L. R B., No 119
555
556 DECIS[O S OF NATIONAL LABOR RELATIONS BOARD
teenth Region (Fort Worth, Texas), issued its complaint, dated May
3, 1941, against Phelps Dodge Refining Corporation, El Paso, Texas,
herein called the respondent, alleging that the respondent had engaged
in and was engaging iri 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 accompanying notice of hearing
were duly served on the respondent and the Union.
The complaint, as amended at the hearing, alleged in substance
that the respondent (1) disparaged the Union and warned and
threatened its employees with respect to membership therein; (2)
discriminatorily discharged Edmundo Norte on January 23, 1941,
and Bernardo Acosta on March 21, 1941; (3) discriminatorily trans-
ferred Jose Antonio Reyes on May 6, 1940, and again on December
2, 1940, to less desirable and more difficult employment; and (4) dis-
criminatorily transferred Aurelio Valdez on December 7, 1940, to a
position which was less desirable and more difficult, thereby causing
him to leave his employment with the respondent on December 31,
1940. On May 21, 1941, the respondent filed its answer, in which it
denied that it had engaged ^ in the alleged unfair labor practices and
set forth certain affirmative defenses to the allegedly discriminatory
discharges.
Pursuant to notice, a hearing was held from May. 26 to June 3,
1941, in El Paso, Texas, before C. W. Whittemore, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel, and the Union by
representatives. All parties participated in the hearing, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses,, and to introduce evidence bearing on the issues. At the
close of the Board's case and at the conclusion of the hearing, coun-
sel for the Board and for the respondent joined in motions to con-
form the pleadings to the proof. The Trial Examiner granted the
motions. During the hearing, the Trial Examiner made rulings on
other motions and on objections to the admission of evidence. The
Board has reviewed all the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. At the close of the hearing, counsel for the Board argued
orally before the Trial Examiner, while counsel for the respondent
waived his privilege to present argument. On July 2, 1941, the
respondent filed a brief with the Trial Examiner.
On July 31, 1941, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served on the respondent and the
PHELPS DODGE REFINING CORPORATION 557
Union. In the Intermediate Report; the Trial Examiner found that
the respondent had discriminated against the four named employees
and had otherwise interfered with, restrained, and coerced employees
in the exercise of the.rights guaranteed in Section 7 of the Act, as
alleged. The Trial Examiner recommended that the respondent
cease and desist from engaging in the unfair labor practices and offer
reinstatement and back pay to said four employees.
On September 8, 1941, the respondent filed execptions to the' In-
termediate Report and other parts of the record, and on September
18, 1941, the respondent filed a brief in support thereof, which the
Board has considered. Pursuant to notice, a hearing for the purpose
of oral argument Was held before the Board in Washington, D. C.,
on October 14, 1941. The respondent and the Union were repre-
sented by counsel and participated therein.
The Board has considered the exceptions and, insofar as they are
inconsistent with the findings, conclusions, and order hereinafter
set forth, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a New York corporation with its principal office
in New York City, operates a plant in El Paso, Texas, where it is
engaged in copper refining and in the production of copper sulphate.
The principal raw material used at the respondent's El Paso plant is
crude copper in the form of anodes and so-called "blister' • copper,
approximately all of which is received from sources outside the State
of Texas. After the refining process, approximately 90 percent of the
finished product, copper and copper sulphate, is shipped to customers
outside the State of Texas. During the first 4 months of 1940, the
respondent's El Paso plant produced approximately 42,000 tons of
copper. The respondent admits that it is engaged in commerce,
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Local 501, International Union of Mine, Mill & Smelter Workers,
is a labor organiation affiliated with the Congress of Industrial
Organizations, herein called the C. I. 0.1 It admits to membership
employees of the respondent.
1 In its charter the Union 'was designated as "The El Paso Refinery Workers Union
No 501
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. The activities of Purdy
The case involves a department of the respondent's El Paso plant
known as the tankhouse, where the refining operation is performed.
The tankhouse is in charge of General Foreman George I. Purdy,
and is operated by about 137 employees.
Organizational activities of the Union, particularly among the
employees in the tankhouse, began early in 1940. Edmundo Norte,
an employee in the tankhouse, testified that in February 1940 General
Foreman Purdy asked him if he knew who the C. I. O. organizers
were, and advised him that another employee who, he heard, was
"going around" with such organizers "shouldn't be getting mixed
up in that kind of trouble." Norte further testified that a few days
later Purdy accused him of having signed a union card, and that,
when he denied the accusation, Purdy said, "I don't know what has
come over the men ... They are all excited with the false prom-
ises of those C. I. O. organizers . . . We don't need the C. I. O.
. . . Everything was going along just fine out here until those
organizers came into town."
Early in April 1940 Purdy again asked Norte, according to the
latter's testimony, if he had heard much about the C. I. O. in the
tankhouse; told him that the C. I. O. was not needed and merely
disrupted the previously existing harmonious labor relations; and
asked him to try to persuade his fellow employees to get rid of the
C. I. O. Norte added that toward the end of April 1940 Purdy
asked him if an employee named Mij ares had ever tried to induce
him to join the Union. When Norte replied in the negative, Purdy
said, "That's good."
Bernardo Acosta, another employee, testified that in August 1940
Purdy asked him if he had joined the Union. When Acosta answered
in the negative, Purdy looked at a list of -names which he took from
his desk, insisted that Acosta was a member, and advised Acosta to
go to the organizer's home, the address of which Purdy provided, and
withdraw his membership card. Upon returning from his vacation
2 or 3 weeks later, Purdy asked Acosta if he had withdrawn his card.
Acosta evaded the question. Purdy then urged Acosta to join the
Independent, took from his desk a copy of the contract which the
Independent had with the respondent, and read excerpts from it.
When Acosta replied that he did not like the Independent, Purdy
declared: "You know where you are standing on this C. I. O. matter,
PHELPS DODGE REFINING CORPORATION 559
and [if ] you want to keep your job, you had better get out of the
C. 1. 0.11
Salvador Castorena , another employee, testified that early in De-
cember 1940 , while he was president of the Union, Purdy asked him
if he had noticed that the "boys were kind of worried " about him and
no longer trusted him. Purdy also asked Castorena why he stayed in
the C . I. 0., since no one retained any confidence in him. A few days
later , Purdy urged Castorena to try to obtain Norte's resignation from
the Union , stating that he was sorry to see Norte "get in Dutch with
his old crowd." 2
Purdy denied the foregoing testimony of Norte, Acosta, and Cas-
torena. However , the credibility of Purdy's denials must be appraised
in the light of certain other testimony given by him. He admitted
that he knew of the Union 's activities early in 1940 when they first
began, although the Union had taken no steps at that time to advise
the-respondent of its existence . At one point in the hearing he denied
that he had ever mentioned the C . I. O. to the employees ; he next
admitted that he "may have " done so prior to a Board hearing in
November 1940 in another case involving this plant of the respondent; 8
and he finally claimed that in any event he was certain that he had
not done so thereafter , since that hearing made him realize that a
supervisor should not "even mention the word C. I. 0." The Trial
Examiner , who observed the demeanor of Norte, Acosta, and Castorena
on the witness stand, as well as that of Purdy, credited the testimony
of Norte, Acosta, and Castorena . On the basis of the entire record
we find, as did the Trial Examiner , that Purdy made the statements
substantially as attributed to him by Norte, Acosta, and Castorena.4
We find that , by Purdy's remarks to Norte in February 1940, again
a few days later, again early in April 1940 , and again toward the end
of that month ; by Purdy's remarks to Acosta in August 1940 and
2
Norte had previously been a member of the independent , but had joined the Union in
November 1940.
"Matter of Phelps Dodge Refining Corporation and International Union of Mine, Atilt
and Smelter Workers and Copper Refinery Employees Independent Union No . 1, party to
the contract , 37 N. L R B 1059 , herein called Case No. C-1809 . Case No C-1809
arose upon charges filed by the international union of which the Union herein is a branch
or local. A hearing was held from November 6 to 15, 1940, at El Paso , Texas. On De-
cember 31 , 1941, the Board issued its Decision and Order , finding that the respondent had
interfered with, restrained, and coerced employees , had dominated the formation and
administration of Copper Refinery Employees Independent Union No. 1, herein called the
Independent , and had unlawfully discharged three employees . The Board therein ordered
the respondent to cease and desist from such unfair labor practices, to disestablish the
Independent , and to offer reinstatement to the said three employees with back pay.
It should be observed that six of the eight statements attributed to Purdy occurred prior
to the hearing in Case No. C-1809.
`The respondent argues that Norte's testimony as to occurrences in February 1940 should
not be credited , particularly in view of Purdy ' s denial, and points out that Norte failed to
testify at the November 1940 hearing in Case No . C-1809 , although he was aware of that
hearing and the fact that his testimony would be desired on behalf of the Union. However,
it should be noted that Norte did not join the Union until after the close of that hearing.
560 , DE 'CIISQONS OF NATIONAL LABOR RELATIONS BOARD
again 2 or 3 weeks later ; and by Purdy's remarks to Castorena early
in December 1940 and again a few days later , the respondent interfered
with, restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.'
2. The activities of Escajeda
Jose Gabriel Escajeda has been employed at the El Paso plant since
October 1939. During his employment at the plant he was also on
the regular pay roll of the sheriff of El Paso County as a "special
investigator" of the C. I. 0., and as such he warned his fellow em-
ployees not to join the Union, solicited for the Independent, and made
full reports of his investigations to the sheriff.6
Purdy admitted at the hearing in the instant case that he "may
have" read in the newspapers that Escajeda was on the sheriff's pay
roll as a special investigator of the Union while employed by the re-
spondent, and that lie "remembered something" about Escajeda's dual
employment but that it was "kind of hazy." Purdy also admitted
knowing that Escajeda's status as a labor spy was an issue in the hear-
ing in Case No. C-1809. Immediately after the close of that hearing,
upon Purdy's instructions, Escajeda was transferred to the tankhouse
with an increase in pay. Escajeda's new pay-roll classification, which
had not previously existed, was "utility man." His new work officially
consisted of packing valves, an occasional task theretofore performed
once every 30 or 45 day's by employees regularly engaged at other
tasks.
Soon after Escajeda's transfer in November 1940 it became common
knowledge among the tankhouse employees that he was a labor spy.
Purdy admitted that he was fully aware of current rumors as to the
purpose of Escajeda's employment. Purdy further admitted that he
had never made any effort to dissipate or deny the accuracy of these
rumors.
Escajeda's working hour activities included vigorous campaigning
against the Union and soliciting memberships in the Independent.?
According to the uncontradicted testimony of Valdez, which we credit,
as did the Trial Examiner, Escajeda asked him during working hours,
on or about December 1, 1940, to stop his work and discuss the Inde-
pendent with Escajeda. When Valdez replied that he could not take
time off from his work, Escajeda said that it was all right to talk with
5It will be noted that no testimony was offered and no finding was made in Case No
C-1809 with respect to any of these activities
6
When confronted at the hearing- in this case with the Intermediate Report in Case
No. C-1809 and specifically referred to certain paragraphs therein concerning his testimony
to the above effect, Escajeda admitted the correctness of such testimony.
"As previously stated , the Board found in Case No. C-1809 that the respondent had
dominated and interfered with the Independent and had contributed support to that
organization.
PHELPS DODGE REPINING CORPORATION 561
him and that it would not matter whether Valdez took an hour or
two for such purpose or whether Purdy saw them doing so, since "that
is what he [Escajeda] was there for, to talk to us." Escajeda then
showed Valdez a list of names Purdy had given him, purporting to
be the names of those employees who were expected to join the Inde-
pendent. Valdez's name was included. However, Valdez refused to
join that organization.8
Between December 25, 1940, and January 16, 1941, the efforts of
Purdy and Escajeda resulted in the resignation of at least nine union
members. Following Purdy's advice to Castorena to resign from the
Union,' as found above, Castorena submitted a letter of resignation.
The union organizer would not accept it. Castorena reported this to
Escajeda, who thereupon wrote a letter of resignation for Castorena,
obtained Castorena's signature to it, and mailed it to the organizer.
The next morning, before Castorena had mentioned his action to any-
one (other than Escajeda), Purdy complimented him upon his resig-
nation and declared that other members of the Union would follow
his lead. We find that Purdy learned of the resignation from
Escajeda. Thereafter Escajeda prepared letters of resignation and
obtained the signatures thereon of eight other union members?
In support of Purdy's anti-union campaign and his advice to Cas-
torena to seek Norte's resignation from the Union, as found above,
Escajeda in December 1940 also urged Castorena to make an effort to
obtain Norte's resignation, stating that otherwise Norte might be
put on awet flapper's job or dismissed.1° At the behest of both Purdy
and Escajeda, Castorena then made an effort to secure Norte's resig-
nation, but met with no success. At about the same time, Escajeda
asked Castorena to get the "whole bunch of boys" to resign from the
C. I. O. and told him that if they did not resign they would all get
into trouble. Early in January 1941 Escajeda asked Acosta to help
him build up the Independent. When Acosta refused, Escajeda
asked him if that meant that he was a C. I. 0. man. Upon Acosta's
affirmative reply, Escajeda told him that the C. I. O. organizer was
"nothing but a tramp" and would "screw" Acosta out of his job.
On March 31, 1941, Escajeda was promoted from "utility man" to
"welder" in the tankhouse, at a 58 percent increase in pay. At the
8 Shortly thereafter , as set forth below, Valdez was transferred to a job which seriously
impaired his health He was nevertheless repeatedly refused reinstatement and was subse-
quently caused to resign his employment.
8 The findings in this paragraph are based upon the testimony of Castorena , a disinterested
witness , and Escajeda , a witness called by the respondent . Purdy denied the statements
attributed to him by Castorena The Trial Examiner believed the testimony of Castorena
and Escajeda , and did not credit Purdy ' s denials.
io Castorena quoted Escajeda as stating that if Norte did not resign he might be sent to
"sell horns" in Juarez , across the border from El Paso , a statement which meant that Norte
would be dismissed from his job. Castorena further explained that "selling horns" re-
ferred to street peddling . As to a wet flapper's job, the record establishes that it would
constitute a serious demotion for Norte.
488861-42-vol. 38-37
562 DECISQONS OF NATIONAL LABOR RELATIONS BOARD
same time, the job of packing valves reverted to the employees who
had previously performed this infrequent task at odd moments during
their regular jobs.
Neither the respondent nor Escajeda disputed the testimony of
Escajeda 's activities in opposition to the Union, as set forth above.
Rather, the respondent contends that it cannot be held responsible
for such activities , on the ground that Escajeda was no more than an
ordinary employee whose union activities were protected from em-
ployer interference by the provisions of the Act. As a result of the
November 1940 hearing in Case No. C-1809, however , the respondent
must have known of Escajeda 's purpose to destroy the Union and
build up the employer -assisted Independent . The respondent, nev-
ertheless , did nothing to disavow Escajeda's activities or to restrain
him in his anti -union efforts . On the other hand, the respondent
transferred Escajeda from another department to a theretofore non-
existent position in the tankhouse , where his anti-union activities
would have the maximum effect, and after the desired result had been
accomplished the respondent promoted him to a substantially better
position . It is clear and we find that Escajeda, by reason of his dual
employment status, the favorable treatment and working conditions
afforded him by the respondent , and the latitude permitted for
his anti-union activities during working hours , represented the
respondent in his anti -union activities and was so considered by
the employees 11
We find that , by Escajeda's remarks to Valdez on or about Decem-
ber 1, 1940 , by his remarks to Castorena on two occasions in Decem-
ber 1940, and by his remarks to Acosta early in January 1941; and by
Escajeda's activities in obtaining resignations from the Union, the
respondent interfered with , restrained , and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
3. The activities of Dove
On December 3, 1940 , Purdy posted the following notice on the
tankhouse bulletin board :
Effective today , December 3, 1940, there will be no more loiter-
ing at the water fountains or any other place, nor will men be
permitted to wander around the Tank House.
Men will remain with their own respective gangs or groups
and will not associate with men of other gangs or groups while
at work.
1; International Ass'n of Machinists v. N. L. R . B., 311 U. S. 72, affirming 110 F. ( 2d) 29,
enforcing Matter of The Serrick Corporation and International Union, United Automobile
Workers of America , Local No. 459 , 8 N. L. R. B. 621
PHELPS DODGE REFINING CORPORATION 563
Conversations between men will be limited to those pertaining
to the work. Idle conversations will not be tolerated.
On December 10, 1940, according to Purdy, he assigned Jackson M.
Dove and another employee to the full-time jobs, theretofore non-
existent, of "breaking up idle conversations" among the tankhouse
employees. At the time of his new assignment, Dove was an official
of the Independent. Purdy admitted that Dove "was our represen-
tative, that is, . . . my representative on that particular function"
of breaking up "idle" conversations, and was expected to report all
violations. The respondent's records show that one day later, on
December 11, 1940, Dove was promoted to the position of "straw boss
over metermen and hot-sheet men." Assistant General Foreman San-
ders, Purdy's chief aide, called the metermen and hot-sheet men to-
gether at that time and informed them that Dove was to exercise
supervision over their work.
Norte testified that upon receiving his new assignment Dove pro-
ceeded to enforce the posted instructions only with respect to con-
versations among C. I. O. employees and, but for one instance,
he was never observed breaking up conversations among non-C. I. O.
employees.12 Without contradiction Norte added that on one occasion,
while Escajeda was talking with another employee during working
hours, a member of the Union observed them and called the matter to
Dove's attention. Dove thereupon approached Escajeda and the other
employee and advised them to "break it up" and come back together
again later on after Dove had left.
During working hours sometime in December 1940, according to
Norte's uncontradicted testimony, which the Trial Examiner credited,
Dove asked Norte if he belonged to the Independent and advised
him, "We should try to build up an independent union so as to make
it strong. In that way we don't need the C. I. 0." A few days later
Dove told Norte that the C. I. O. organizer was an alien and in-
quired, "Why does that fellow pick on you ignorant Mexicans
instead of the white men?" About a week later Dove again ap-
proached Norte, then a candidate for president of the Union. Dove
said, "Norte, I found out that you do belong to the C. I. O... .
Believe me, Brother, I am going to break up the C. I. 0." Dove
then warned Norte and his two helpers that they were "surely going
to catch hell" if they "kept on with the C. I. O." Norte remained
in the Union and shortly thereafter was discharged under circum-
v Purdy denied that the respondent sought to discourage C. I. O. membership by means
of Dove's new assignment. That the respondent was aware of Dove's proclivities is never-
theless apparent from the surrounding circumstances and also from the respondent 's state-
ment in its brief that in engaging in anti-C. I. O. activities Dove was "acting on behalf
of his own union" and that, as an "employee" protected by the Act, the respondent could
not be held responsible for his activities even under the circumstances of the assignment.
564 DF 'CISZONNS OF NATIONAL LABOR RELATIONS BOARD
stances reviewed below. In addition, after Castorena had been pre-
vailed upon by Escajeda to resign from the Union, as related above,
Dove also urged him (Castorena) to join the Independent.
Early in January 1941 Dove told Acosta that a certain union
organizer was "nothing but an alien and a Communist and the
F. B. I. is hard after him. . . . Why is it that the C. I. 0. . . . has
picked on the ignorant Mexicans and not on the white men? .. .
You go around with your eyes open and ears open and see and hear
all the talk you can about the C. I. 0. members and their plans and
you come and tell me. . . . Well, suppose there is an election, .. .
You'd better vote against the C. I. 0. because, let me tell you this
much, all these C. I. 0. men working in this department are marked;
and you know ... Norte, ... he is one of them, and you don't
want to be a marked man, do you?" About a week later, Dove told
Acosta that the respondent could "very easily get rid of all the
C. I. 0. men in this plant and they sure can easily do it with you
too," and again solicited Acosta to help him get rid of the C. I. 0.
This testimony is undenied.
In May 1941, shortly after the Board issued its complaint against
the respondent in this case, alleging in part that Dove's activities
constituted unfair labor practices, Purdy created a new job for Dove
in a classification which theretofore had not existed on the respond-
'ent's pay roll: "lead burner learner." In a period of about 1 year
Dove's pay had been increased from 521/2 cents to 60 cents an hour.13
Neither the respondent nor Dove disputed any of Dove's activities
in opposition to the Union as testified to above. Rather, the respond-
ent contends that, as with Escajeda, it cannot be held responsible for
Dove's activities, on the ground that Dove was no more than an
ordinary employee whose union activities were protected from
employer-interference by the provisions of the Act. However, the
respondent made Dove a strawboss over the metermen and hot-sheet
men and assigned him, a partisan of the Independent, to the un-
precedented position of "breaking up idle conversations." Indeed,
Purdy admitted at the hearing that the respondent had made Dove a
management representative for that purpose. Moreover, the
respondent's subsequent promotion of Dove in May 1941 with full
knowledge of the manner in which he had performed his task of
"breaking up" conversations, and the preferred treatment which he
was accorded over a similarly promoted employee who was not shown
to have distinguished himself for anti-union activity, convince us
that the respondent fully ratified and approved Dove's efforts to
is Purdy claimed that another employee with the same technical qualifications was also
made a lead burner learner at the same time as Dove , but admitted that this other employee
was paid less than 75 percent of Dove's rate,
PHELPS DODGE REFINING CORPORATION 565
destroy the Union . We find that the respondent is responsible for
Dove's anti -union activities.
We find that within the framework of its manifest hostility to the
Union the respondent , by Dove's remarks to Norte some time during
December 1940 , again a few days later , and again about a week later;
by Dove's remarks to Castorena after Castorena resigned from the
Union, and by his remarks to Acosta early in January 1941 and again
about a week later; and by Dove's activities in "breaking up" con-
versations only among C. I. O. employees , has interfered with, re-
strained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. Discrimination with respect to employment; further interference,
restraint , and coercion
1. Reyes
In the latter part of March 1940 Jose Antonio Reyes was trans-
ferred from his position of hot-sheet man, which he had filled satis-
factorily for more than a year , to the job of repairing sections. He
was again transferred on May 6, 1940, to the job of wet flapping,
with the explanation , according to Purdy, that the transfer was tem-
porary and that he would be retransferred to hot-sheet work after
having acquired some wet-flapping experience . In November 1940
he was a witness at the hearing in Case No . C-1809, testifying in part
that he was a member of the Union. Thereafter he repeatedly asked
Purdy to transfer him back to hot-sheet work. On December 2,
1940 , he was again transferred , on this occasion to the scrap gang,
where he was still employed at the time of the hearing . The com-
plaint in substance alleges and the answer denies that the latter two
transfers and the respondent's refusal thereafter to reinstate Reyes
to hot -sheet work were discriminatory.
Two hot-sheet men are assigned to each meterman , who is in charge
of 4 or 5 sections of tanks. The major duty of the hot-sheet men is
to break short circuits which occasionally form between the anodes
and cathodes in the tanks , and to straighten and properly space the
cathodes . Wet flappers also work in pairs, lifting out of each tank the
bars from which the cathode sheets are suspended. The sheets are
spread upon a steel board , and are then struck repeatedly with wooden
paddles, thereby flattening them. Each section of tanks is "flapped"
twice before the finished cathodes are permanently removed. On the
first occasion the bar and sheets weigh between 20 and 30 pounds; on
the second between 40 and 75 pounds . Members of the scrap gang,
which numbers from 2 to 4, lift from each tank the worn -out anodes,
or scrap , and replace them with new anodes. Pieces of scrap range
566 , DECISIONS OF NATIONAL LABOR RELATION 'S BOARD
in weight from 20 to 300 pounds. The pay is the same for each of
the 3 jobs: hot-sheet man, wet flapper, and member of the scrap gang.
Although Reyes had joined the Union in March or April 1940,
there is no satisfactory evidence in the record that Purdy knew of
his union membership at the time of his transfer to wet flapping.
However, the respondent must have learned of that fact by November
15, 1940, the date of the close of the hearing in Case No. C-1809, at
which Reyes testified that he was a member of the Union. Thereafter,
on November 25, 1940, Reyes sought to be reinstated to hot-sheet work,
and complained that wet flapping was undermining his health. Purdy
said that he expected to hire five or six more men as wet flappers in a
few days and would then put Reyes back on his old job. The fore-
going finding is based upon Reyes' testimony, credited by the Trial
Examiner. Purdy admitted that he knew that Reyes wanted to be
put back at his old job as hot-sheet man and that on November 25
Reyes had asked him to be transferred from wet flapping because his
health was becoming impaired. While Purdy denied that he had
promised to give Reyes any particular job, the Trial Examiner did
not accept Purdy's denial as truthful, particularly since Purdy had
originally explained the transfer to wet flapping by saying that a
hot-sheet man should have some experience at that job.
On December 2, however, instead of being sent back to hot-sheet
work Reyes was instructed to report to the scrap gang, of which Van
Gilbert was foreman. Reyes testified that when he protested to Van
Gilbert that he was not strong enough for the heavy work, Van Gilbert
agreed but declared that the orders came from Purdy and that the
only concession that could be granted would be to permit Reyes to
"take it easy for a few days." For the next few days it was repeatedly
necessary for Reyes to be treated at the first-aid station, which he
attended with the full knowledge and approval of Van Gilbert. Al-
though Van Gilbert denied having agreed that Reyes was too light
for the work, the Trial Examiner found the denial not convincing in
view of Van Gilbert's later admission that "people do forget" and "I
am just an ordinary human being," and his subsequent burst of candor
in stating, in explanation of his faulty memory, "I wish I could have
memorized that, but I didn't, so that's that." We find, as did the Trial
Examiner, that Van Gilbert agreed that Reyes was not strong enough
for work in the scrap gang and stated that the assignment was pur-
suant to Purdy's orders.
The record shows without contradiction that shortly after his trans-
fer to the scrap gang Reyes asked another employee to speak to Purdy
and try to arrange a meeting with Purdy so that Reyes could request
a transfer to lighter work. The employee spoke to Purdy as re-
quested, but Purdy replied, "Well you go back and tell those men
[that is, Reyes] we have a contract with the Independent ... and
PHELPS DODGE REFINING CORPORATION 567
that if they want to, to come through the Independent ... I am not
listening to them."
On or about December 5, Reyes approached Purdy, confronted
him with his promise, and asked why he had been transferred to
an even harder job than that of wet flapping. According to Reyes,
Purdy replied, "Reyes, as long as you don't quit the wrong crowd,
you will never get your job back again." Purdy denied making the
statement, but the Trial Examiner did not credit Purdy's testimony,
nor do we. Sometime during the same month, at the Union's annual
election, Reyes was elected a trustee, an office which he still held
at the time of the hearing.
After Reyes'transfer in May 1940, the respondent hired about 20 new
hot-sheet men. When asked at the hearing why he did not put Reyes
back on hot-sheet work, Purdy answered merely, "I don't want to
put him back on this work."
While we share the Trial Examiner's doubts as to the accuracy
of Purdy's statement that Reyes was transferred to wet flapping in
May in order to give him experience, since Purdy could recall but one
other instance of a similar transfer in many years, the record fails
to establish that Reyes' union membership was known or suspected
by the respondent at that time. Hence it is not found that this transfer
was discriminatory, and it is unnecessary to determine whether or not
the transfer was a demotion.
It is plain, however, that at the time of the transfer Reyes was
informed of Purdy's intention to keep him on the wet-flapping job
only temporarily. In December, after the respondent knew of Reyes'
union membership as a result of the earlier hearing and had brought
Escajeda into the tankhouse to break up the Union, Purdy refused to
act in accordance with his previously expressed intention to transfer
Reyes back to hot-sheet work, but assigned him to the scrap gang
instead. When Reyes protested, Purdy told him in effect that he
never would regain his old hot-sheet job, at which his work had been
admittedly satisfactory, until he quit the Union. Many new hot-sheet
men were thereafter employed, and the only explanation Purdy gave
for not reinstating Reyes to that job was that he did not "want"
to do so.
The record does not show that cause existed for the respondent's
refusal, on and after December 2, to comply with Purdy's previously
expressed intention to reinstate Reyes to hot-sheet work. Yet Purdy
knew that Reyes' desire for such a transfer was based on reasons of
health and not personal caprice, and that Reyes was a union member
and had testified for the Board about a month before. In defending
against the charge of discrimination, the respondent argues merely
the general proposition that it would impair managerial authority
568 DECTSTONB OF NATIONAL LABOR RELATIONS BOARD
to require the transfer of union employees to work requested by them.
The real issue, however , is whether the respondent 's refusal was merely
an exercise of its unquestioned right to manage its own business affairs
or whether the action represented a reprisal for past union activities
and a warning with respect to future union activities . We are of the
opinion that the refusal to retransfer Reyes to hot -sheet work in
December 1940 and thereafter was due to the latter reason and was
plainly intended to discourage union membership.
The respondent also argues in effect that work on the scrap gang
was not shown to be less desirable or more difficult than hot-sheet
work. With respect to Reyes, however , the facts clearly show that
work on the scrap gang was less desirable and more difficult than hot-
sheet work, regardless of how other employees might consider the com-
parative desirability of these two jobs. The argument is without
merit.
We find, as did the Trial Examiner , that Purdy's refusal in
December 1940 and thereafter to reinstate Reyes to a job as hot-sheet
man constituted discrimination in regard to his hire and the terms and
conditions of his employment . Under all the circumstances , includ-
ing the respondent 's general anti-union animus, we find that the re-
spondent thereby intended to and did discourage membership in the
Union and that it thereby, and by Purdy's statements that Reyes
would be reinstated to hot-sheet work only upon quitting the Union,
interfered with, restrained , and coerced its employes in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Valdez
In 1936 , after having been regularly engaged as a stripper'14
Aurelio Valdez was transferred to a wet-flapping job. Due to the
vapor from the hot acid, with which the Nzet-flapping job brought
him into close and prolonged contact , the work made him ill; and he
complained to Purdy, who promptly returned him to his stripper
duties. He thereafter remained on the stripping job for about 41/2
years, until, after having joined the Union, he was again transferred
to wet flapping on December 7, 1940 . Following repeated but futile
efforts to obtain reinstatement once again to his regular job of strip-
ping for the same reasons of health as in 1936, he ceased work on
December 31, 1940 . The complaint in substance alleges and the answer
denies that on December 7, 1940, he was transferred to work for which
he was physically unfitted , refused reinstatement thereafter, and
caused by the respondent to leave his job on December 31, 1940, all
to discourage membership in the Union.
"The work of a stripper is not clearly described in the record
PHELPS DODGE REFINING CORPORATION 569
Valdez joined the Union early in 1940. As hereinbefore found, on
or about December 1, 1940, Escajeda urged him to join the Inde-
pendent, but Valdez openly questioned the advantages of that organi-
zation. On December 4 he made a speech at a union meeting, in which
he reported that Escajeda was vainly seeking his support for the presi-
dency of the Independent on the plea that he (Escajeda) was a
Mexican running against five Americans. On December 6 the list
of strippers for the ensuing week was posted. Valdez saw that his
name was omitted therefrom and asked Purdy's assistant, Sanders,
about it. Sanders replied that it was done on orders from Purdy.
Valdez then went to Purdy's office, where he found Purdy and
Escajeda, and asked why he was being transferred. Purdy replied
merely that it was "necessary" to transfer Valdez to wet flapping.''
When Valdez met Escajeda at the time clock the next morning, De-
cember 7, the latter, according to Valdez's uncontradicted testimony,
said "Now let the C. I. O. get you out of the wet flappers, you son-of-a
bitch." Valdez was unable to continue at the wet-flapping job for the
full day because he became ill from the comparatively strenuous work
and the vapor given off by the hot acid, and -was sent home. He re-
turned to work a day or two later but again succumbed to the same
illness. On this occasion Sanders asked why he was not keeping up
with the others and told him to see the visiting physician, Dr. Miller.
Valdez was examined by Dr. Miller on December 14 and again on De-
cember 24. Although Valdez repeatedly asked Sanders and Purdy
during this period to transfer him to lighter work because of his ill-
ness, both foremen refused to do so. On December 31, 1940, he
ceased working for the respondent.
Valdez then visited Dr. Breck, an X-ray specialist and orthopedic
surgeon not employed by the respondent. Dr. Breck, whose quali-
fications counsel for the respondent conceded, examined and treated
Valdez on January 3 and 8. On January 4, Dr. Breck gave Valdez
a letter stating that in his opinion Valdez should be given work not
involving heavy lifting, and that he could perform other types of
manual labor. The next day Valdez presented Dr. Breck's letter
to Dr. Miller, who telephoned to Dr. Breck and asked his more de-
tailed opinion concerning Valdez's physical condition and whether
he knew "any more about the man." When Dr. Breck answered
in the negative, Dr. Miller stated in substance that Valdez was "mixed
up with certain labor activities" and was not a satisfactory employee
"No evidence was offered to support Purdy's claim that the transfer was "necessary "
On the contrary, up to the time of the hearing, in May 1941 , no one had been placed in the
wet-flapping gang after Valdez ceased work at that job on December 31, 1940 , although the
monthly production records show that a substantially greater tonnage of copper was pie-
duced after Valdez ceased wort: than before he was transferred to wet flapping on
December 7, 1940
570 , DE'CIJSTONS OF NATIONAL LABOR RELATIONS BOARD
for that reason 16 Valdez also submitted Dr. Breck's letter to Purdy,
who said that it meant nothing and informed Valdez that the only
work he could have was as a wet flapper.
The Trial Examiner did not consider it necessary, nor do we, to
determine whether or not Valdez's transfer on December 7, 1940, was
a demotion, a relative term susceptible of varying interpretations.-
The only issue is whether or not, under all the circumstances, his
transfer was designed to discourage union membership, within the
meaning of the Act.
Escajeda's part in Purdy's anti-union campaign, and his status
as a representative of the respondent with respect to his anti-union
activities, have been established above. The circumstances surround-
ing Valdez's sudden transfer from his regular job, including the undis-
puted fact that Escajeda ascribed it to his union activities, are so
strongly persuasive that it is difficult, as the Trial Examiner stated,
to come to any conclusion except that Purdy gave Valdez the wet-
flapping work because of his union activities, and his refusal to join
the Independent. Purdy's refusal to reinstate Valdez to his regular
work as a stripper, after the latter had complained of illness caused
by the wet-flapping job, was even more clearly discriminatory. His
repeated refusals were in marked contrast to his immediate granting
of a similar request in 1936, before the Union was organized. When
Purdy's conduct succeeded on December 31 in causing Valdez to
cease Work, the respondent in effect constructively discharged
Valdez."
The true explanation of the respondent's motive for its treatment
of Valdez, as the Trial Examiner found, is contained in Dr. Miller's un-
guarded comment to Dr. Breck to the effect that Valdez was unsatis-
factory to the respondent because of his union activities. Nor does
the respondent argue that it had any reason for transferring Valdez
to and keeping him at wet flapping, other than the unsupported asser-
tion that it was "necessary." Rather, the respondent rests upon the
18 This finding rests upon the testimony of Dr. Breck , which the Trial Examiner credited.
The respondent stated in its brief that during a recess just before the hearing closed, its
attorney told the Trial Examiner that Dr. Miller was performing an emergency operation
and was not immediately available to testify . A stipulation was thereupon agreed to that
Dr. Miller , if called , would deny Dr. Breck's testimony concerning the respondent 's animus
against Valdez because of his labor activities , and would assert that his statements to Dr.
Breck were based on the thought that Valdez might be preparing a claim for an industrial
accident . We accept Dr. Breck's testimony , as did the Trial Examiner , despite the fact
that the stipulated testimony contradicts him, since Dr. Breck, not being connected with
either the Union or the Company, had no motive for testifying other than accurately.
17 Compare Escajeda 's statement to Castorena , hereinbefore set forth , that Norte might
be transferred to a wet-flapping job if he did not resign from the Union.
18 See Matter of Sterling Corset Co ., Inc., and Universal Brassiere & Justrite Corset Co.,
Inc., and International Ladies' Garment Workers' Union, Local 85, 9 N. L. R. B. 858,
N. L. R. B. v. Sunshine Mining Company, a corporation, 110 F . ( 2d) 780 (C. C. A. 9), cert.
den. 312 U. S . 678, 713, enf 'g Matter of Sunshine Mining Company and International Union
of Mine, Mill and Smelter Workers, 7 N. L. R. B. 1252
PHELPS DODGE REFINING CORPORATION 571
claim that the evidence fails to establish discrimination. The record,
however, clearly reveals that Valdez's continued employment at the
wet-flapping job, which was seriously impairing his health, was not at
all "necessary," and further establishes that the respondent could not
have had a non-discriminatory motive in transferring him to wet
flapping or in thereafter refusing to reinstate him to his regular job
of stripping.
Under all the circumstances, including the respondent's anti-union
animus, we find, as did the Trial Examiner, that the respondent on
December 7, 1940, transferred Valdez to the wet-flapping job, there-
after refused to reinstate him to his regular work as a stripper, and
thereby in effect discharged him on December 31, 1940, all because of
his union activities. We further find that the respondent thereby
discriminated in regard to the terms and conditions and the tenure of
V aldez's employment; that it thereby intended to and did discourage
membership in the Union; and that it thereby, and by Escajeda's re-
marks to Valdez on December 71 1940, interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed in Section 7
of the Act.
3. Norte
Except for a period of about a year, Edmundo Norte was employed
by the respondent from 1930 until January 23, 1941, when, shortly
after joining the Union, he was discharged. At the time of his dis-
charge he was a meterman, a position which he had held continuously
from the early part of 1940 and had previously held for a period in
1936-37. The complaint in substance alleges and the answer denies
that Norte was discriminatorily discharged. The answer affirmatively
alleges that he was discharged for inefficiency and for repeatedly
interfering with the work of other employees.-
It has been found that in February 1940 and thereafter, Purdy.
Escajeda, and Dove made many efforts to restrain Norte from joining
the Union. On November 20,1940, Norte nevertheless joined the Union
and in the following month was a candidate for president, as Purdy
admitted knowing at the time. At the same time Norte was elected a
trustee of that organization. Thereafter the efforts of Purdy, Esca-
jeda, and Dove were directed to securing his resignation from the
Union. Failing in this scheme, Dove told Acosta early in January
1941 that Norte was a "marked man," as found above.
19 During the hearing Purdy testified that he discharged Norte because of his inefficiency
and because of "interfering with other men." However, no evidence was adduced in sup-
port of the latter assertion except as the respondent might have so characterized Norte's
union activities. In its brief the respondent contends only that Norte "was discharged for
inefficiency." We find, as did the Trial Examiner, that Norte was not discharged because of
any interference with other employees.
572 DE''CISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about January 18, 1941, Dove approached Norte and told him
that certain tanks in one of his sections were cold, indicating that the
circulation of the heated electrolytic solution through such tanks had
become obstructed.20 Norte requested Dove to report the matter to
Acosta, a pumpman whose duties included the repair of this difficulty,
since he (Norte) was then busy at another section. Later the same
morning Norte asked Dove if he had reported the matter to Acosta,
and Dove replied that he had not. Thereafter, Norte met Acosta near
his sections and inquired if Acosta had been informed that the tanks
needed attention. According to the uncontradicted testimony of Norte
and Acosta, Dove observed them in conversation, immediately went
over to them, and rebuked Acosta for talking to Norte. Acosta, over
whom Dove had no supervision, said that it was none of Dove's busi-
ness with whom he talked. Norte then asked Dove to tell Acosta about
the defective circulation, and left them. Instead of telling Acosta
about the trouble, Dove proceeded to Purdy's office and reported the
two employees for talking. Somewhat later Purdy sent for Acosta,
and demanded to know why Acosta had been talking to Norte. Acosta
explained, and was then told by Purdy that he was not supposed to
talk any more than was necessary at his work. He was also told that
Dove was there for the purpose of breaking up conversations.
Soon after the lunch hour the same day, Purdy accused Norte of
getting Acosta into trouble. Norte related the details of the incident,
and Purdy thereupon dismissed it. Norte then asked Purdy about
the efficiency of his sections, which he felt were not operating properly,
and Purdy replied that their efficiency was low. When Norte asked
why that was, Purdy merely invited him into the office to look at the
ampere-efficiency records of the sections as compared with those of the
seven other metermen.21 After looking at the records, Purdy and
Norte discussed possible causes for the low efficiency of the sections
under Norte's charge. Norte pointed out that his record had been
higher than that of his predecessor on the sections until repairs were
begun on the heating unit in the summer of 1940. Purdy suggested
that perhaps it was the fault of his two helpers or his own "mental
attitude" toward his work. Norte then asked if Purdy thought that
he had "let his work down." Purdy replied, "No, I can see you have
been trying to do the best you can ... There is only one other man in
20 The electrolyte used in the tanks is constantly circulated through a heating unit
costing $30,000 to $40,000, and requiring the services of many pumpmen and others for
proper maintenance. The normal inference to be drawn from these facts is that the
reason for using the heating unit is to increase the efficiency of the electrolytic process
The respondent did not explain why it incurred these substantial expenses if not for
this purpose.
21 For each section of tanks the respondent kept ampere-efficiency records, which showed
the percentage of actual copper production as against the theoretical production which
the same amount of electricity should have yielded under perfect conditions.
PHELPS DODGE REFINING CORPORATION 573
the tankhouse that is more conscientious than you and that is Jose
Soto." The interview terminated when Purdy finally said to Norte,
"Well, we will just have to keep on working and try to find an answer
to this." Nothing further was said during this conversation concern-
ing Norte's talking with Acosta earlier in the day, nor was he warned
that he would be discharged if the low efficiency of his sections
continued.22
Later the same day, Purdy approached Acosta at his work. Accord-
ing to Acosta, he inquired if Purdy had cleared up the matter of the
Dove-Norte conversation, and Purdy replied that it was "all fixed
up." Purdy then explained that trouble was being experienced with
the employees because of the C. I. O. organization. He cited the case
of Zacarias,23 a discharged employee who had been reinstated by the
respondent after the hearing in Case No. C-1809, and pointed out that
Zacarias had "seen the light," resigned from the Union, and was
having no more trouble. After discussing the C. I. O. and other mat-
ters, Purdy asked Acosta if he would try to persuade the union leaders,
including Norte, to come to his office to discuss an arrangement whereby
they might break up the Union. Acosta agreed to see the other lead-
ers and find out whether or not they would come. Purdy admitted
having had a conversation with Acosta to the above effect, but denied
that the Union had been mentioned. The Trial Examiner did not
credit the denial, nor do we. We find that Acosta's testimony is a
substantially correct reflection of the facts. Acosta thereafter inter-
viewed some of the employees, but did not report to Purdy prior to
Norte's discharge 5 days later.
On January 23 Purdy called Norte to the office, informed him that
he was discharged, and exhibited a discharge slip upon which he
had written : "Inefficiency in his work, interference with other man ;
this man had been cautioned several times."
Later in the afternoon of the day of Norte's discharge, Acosta re-
marked to Purdy that he understood that Norte had been discharged.
Purdy admitted the fact. Acosta testified that in response to his
inquiry about the meeting which Purdy had requested with the union
leaders Purdy replied that his request had been made several days
before, that he had heard nothing in the meantime, and that Norte had
had his chance. Acosta then declared that if the Board conducted
an investigation of the discharge of his friend Norte he would "say
whatever he knew." Purdy corroborated most of Acosta's version of
this conversation, but denied that any reference had been made to the
22 The above findings with respect to Norte's conversations with Purdy prior to his dis-
charge are based upon Norte's testimony , undenied by Purdy and credited by the Trial
Examiner.
11 Zacarias ' revocation of union membership had already been obtained by Escajeda
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. We do not credit the denial and find, in agreement with the
Trial Examiner, that Acosta's account corresponds with the facts.
On January 27, 1941, Acosta and Raoul Norte, the brother of
Edmundo Norte, were summoned to Purdy's office in connection with
a statement which Raoul Norte had made to Acosta to the effect that
Acosta would be the next to be discharged. According to Acosta, the
following occurred : Raoul Norte, in explanation of his statement,
told Purdy in Acosta's presence that he well knew that Edmundo was
"going to get it," and that he had pleaded with Edmundo to "get out
of" the Union while there was still time. Purdy pointed out that
Edmundo had been warned, and asked Acosta why he should "mind."
Acosta replied that Edmundo was his friend. Purdy thereupon asked
Acosta if he could expect a recommendation from the union organizer
if he too remained in the Union and was "fired" Purdy admitted that
the meeting with Acosta and Raoul Norte occurred and that they dis-
cussed the rumor started by Raoul Norte. However, he denied that any
reference was made to the Union, its organizer, or Edmundo Norte's
discharge. We believe Acosta's version, which the Trial Examiner
credited, and find in accordance therewith.
The respondent introduced in evidence its ampere-efficiency records
covering all eight metermen from May 1940 (when Norte was assigned
regularly to that work) to May 1941. These records reflect that the
average efficiency of all the sections on Norte's electrical circuit (there
was also another electrical circuit) varied during this 1-year period
from a high of about 89 percent (from May through August 1940) to
a low of about 69 percent (for November 1940) ; and that the sections
assigned to Norte fell from 1 to 3 percent below this varying average
from July through November 1940, and had the lowest efficiency of all
the sections on the circuit during this period. However, Purdy ad-
mitted that prior to the discharge he had seen the December 1940
records, reflecting that the efficiency of Norte's sections had increased
to within one-half of 1 percent of the average, and that the sections
assigned to Puga, another meterman, had an efficiency 1.3 percent
lower.24 In addition, the respondent admitted that its efficiency rec-
ords represented the composite result of several factors besides the
metermen's individual diligence, and that a crucial factor was the
efficiency of the circulation of the hot acid solution or electrolyte
through each separate tank. The record does not contain any indi-
cation of the significance which the respondent attributed in the past
to a small variation in the efficiency of certain sections as compared
with the average efficiency of all the sections, especially in view of the
m The respondent never spoke to Puga , a member of the Independent , about his low
efficiency. On the contrary, Puga testified that he NN as told during this time that his work
was good.
PHELPS DODGE REFINING CORPORATION 575
wide range of 20 points (between 69 and 89 percent) through which
the monthly averages fluctuated; and there was likewise no evidence
that any other metermen had ever been discharged or even warned on
the ground of the efficiency ratings of his sections.
Norte was replaced by Zacarias on January 24, 1941, the day after
the discharge. Omitting from consideration the efficiency records
for January 1941 in order to avoid any question of apportionment,
the respondent's records show that the average efficiency of all the
sections on the circuit involved increased from the November 1940
low of 69 percent to 81 percent in February 1941, and remained
within 2 percent of that figure during-March, April, and May, 1941;
that the efficiency of Zacarias ' sections fell 2.4 percent below the
monthly average in February and 2.3 percent below in May; and
that the efficiency of Puga's sections fell more than 2 percent below
the monthly average in March and April. However, there was no
evidence that any warnings or reprimands were given to Zacarias,
who had "seen the light," resigned from the Union, and was "having
no more trouble"; and, as previously stated, neither had any warn-
ings or reprimands been given to Puga, a non-union employee.
As found above, Norte was repeatedly warned by Purdy, Escajeda,
and Dove, directly and indirectly, that if he joined or remained in
the Union he would be dismissed or demoted. He did not heed the
warnings but joined the Union and became a popular leader among
a large proportion of the union members, as is attested by the fact
that he lost the election for president by only one vote. Shortly
thereafter he was discharged.
The respondent in effect contends that Purdy testified that the
reason for Norte's discharge was the record of the low efficiency for
the preceeding 41/2-month period of the sections in his charge; that
this testimony was not rebutted by evidence of high efficiency; and
that, when considered together with the lack of testimony that
Norte was discharged for any other reason and with the undisputed
testimony that other union members were not discriminated against,
the record wholly fails to prove discrimination against Norte. We
do not believe, however, nor did the Trial Examiner, that the re-
spondent took the view that the quality of Norte's work warranted
his discharge. On the contrary, we are convinced that the re-
spondent found Norte's efficiency satisfactory, since it left unex-
plained (1) the fact that it allowed the average efficiency of all the
sections on Norte's electrical circuit to drop as low as 69 percent
for the month of November 1940; (2) the fact that in the following
month, while the sections assigned to Norte had an efficiency of 77
percent, it did not explain how this figure could be entirely at-
tributed to Norte as an individual, in view of the fact that un-
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obstructed circulation (the lack of which Norte had frequently but
vainly complained about) is an important factor in the resulting
efficiency figures; (3) the fact that at no time did it give Norte any
warning that his efficiency, if not improved, was sufficiently low to
occasion his discharge; and (4) the fact that it did not point to any
other example of a discharge or even a warning on the ground of
low efficiency.
Under all the circumstances, including the respondent's anti-union
animus, we find, as did the Trial Examiner, that the respondent on
January 23, 1941, discriminated in regard to the tenure of employment
of Edmundo Norte, thereby discouraging membership in the Union ;
and that the respondent thereby, and by Purdy's remarks to Acosta
on January 18, 23, and 27, 1941, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
4. Acosta
Bernardo Acosta had been employed by the respondent at its El Paso
plant during various periods since 1930. He was discharged in the
summer of 1938 for failing to execute an order promptly; was re-
employed shortly thereafter ; was again discharged in July 1939, on
the ground that his work was not satisfactory and that he refused to
follow instructions ; and was again reemployed in September 1939, as
a "pumpman."
As found above, Purdy made repeated attempts as soon as the
Union was organized to restrain Acosta from becoming a member.
Acosta nevertheless joined the Union early in 1940. We have also
found that Purdy, aided and abetted by Escajeda and Dove, then
made repeated efforts to secure Acosta's resignation from the Union.
Despite the respondent's efforts, Acosta remained active in the Union.
Immediately after Norte's discriminatory discharge in January 1941,
Acosta frankly told Purdy that he would "say whatever he knew" in
the event that the Board investigated the discharge. In March 1941
a Board representative visted El Paso in connection with the Board's
investigation of Norte's discharge and other unfair labor practices
charged by the Union, and obtained statements from Acosta and
others?5
During the morning of March 21, 1941, Dove followed Acosta at his
work, although without supervision over him. While Acosta was
taking volt readings at certain tanks, a meterman approached him,
and requested that he come over to the meterman's section as soon as
possible and inspect the circulation pumps. Dove immediately told
them both to report to Purdy for talking. Acosta followed Dove to
zs With Escajeda in the respondent's employ, the Trial Examiner found that it was not
unreasonable to believe that Purdy knew of this fact.
PHELPS DODGE REFINING CORPORATION 577
Purdy's office. When they reached the office Dove told Acosta to wait
outside while he went in. This caused an argument. Acosta asked
whether it was really Purdy who wanted to see him, and asserted that
Dove was not his boss. Dove then threatened to "fix" Acosta, where-
upon Acosta again declared that he knew Dove was making reports
to Purdy, said that both Dove and Purdy should keep a "clear mind"
so that if they were called before the Board they "would not go saying
lies," and returned to his work. Somewhat later Purdy sent for
Acosta, who went to Purdy's office and found that Dove was present.
Purdy told Dove to write down what had happened, and Dove did
so.26 Purdy read the statement to Acosta, who declared that it was
correct. Purdy asked what Acosta meant when he told Dove not to
"go saying lies in court," and Acosta replied that he referred to "the
Labor Boards." At this point, according to Acosta, Dove asked Purdy
if Acosta "was going to get away with it." Purdy said to Acosta,
"Go ahead with your work; I don't want to hear any more about it."
Nothing more was said at that time, and Acosta thereupon returned
to his work as Purdy had instructed him to do.
A little later, however, Purdy's assistant told Acosta to stop his
work and go to Purdy's office again. Acosta did so, and Purdy then
said to him, "Mr. Martin [the plant manager] and I just talked
this thing over and we don't like anybody that makes threats and
I am going to let you go . . . You look down and see what I am
putting down on your discharge slip." Acosta then watched Purdy
write on the discharge slip the word, "Insubordination."
When asked by the respondent's attorney why he had discharged
Acosta, Purdy testified :
Well, for several reasons there. To begin with, he was some-
what haughty and defiant in his attitude with Dove and ques-
tioned his authority to ask him to come to my office and when
he came to my office he was certainly defiant in there and I
considered this threat of having me in court as also an act of
insubordination, and an accumulation of those various things
made me make that decision.
The respondent contends that the asserted reasons for Acosta's
prior discharges in 1938 and 1939 support Purdy's claim that the
cause of Acosta's discharge on March 21, 1941, was his "somewhat
haughty" attitude toward Dove, both before coming to the office and
while in the office, and also his so-called "threat" of having Purdy
and Dove answer for their anti-union conduct in a Board proceed-
ing. However, Purdy did not tell Acosta, at the first conference
"Dove's written statement stated that Acosta had said to him, "I know what you are
doing, you are just spying on us and taking it to the office, and you are going to have to
answer for it, and Purdy too "
438861-42-vol. 38-38
578 DE 'CISQ'ONIS OF NATIONAL LABOR RELATIONS BOARD
in his office on March 21, that he considered Acosta's conduct insub-
ordinate or warranting any disciplinary action. On the contrary,
Purdy rejected Dove's demand for disciplinary action against
Acosta, told Acosta to return to his work, and said that he did not
"want to hear any more about it."
It is clear that Dove had no supervision or authority over Acosta,
a pumpman. It is also plain that whatever remarks were made by
Acosta with respect to a Board hearing followed and were aroused
by Dove's actions. Moreover, Dove himself had threatened a wit-
ness who had just testified in these proceedings.27 In addition,
Acosta had repeatedly been threatened by Purdy with discharge if
he did not abandon the Union. Acosta's remark to Purdy that
resort might be had to the Act in order to remedy the respondent's
alleged unfair labor practices was thus directly occasioned by the
acts of Purdy and Dove, both representatives of the respondent, and
cannot be considered "insubordination." 28
We are convinced, as was the Trial Examiner, that Acosta was
not discharged because of his remarks on March 21, 1941, but because
he had refused to yield to coercion and resign from the Union, as
had other union members, and because Purdy believed that Acosta
would "say whatever he knew" in regard to Norte's discriminatory
discharge. Under all the circumstances, including the respondent's
anti-union animus, we find, as did the Trial Examiner, that the re-
spondent on March 21, 1941, discriminated in regard to the tenure
of employment of Bernardo Acosta, thereby discouraging member-
ship in the Union; and that the respondent thereby interfered with,
restrained, and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent described in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
27 Dove, although present at each day's session of the hearing by instruction of the re-
spondent 's counsel , was not called as a witness by the respondent . During the noon recess
of the hearing after Norte, the Board 's first witness , had completed his testimony, Dove
confronted him in the corridor and, in the presence of many witnesses , threatened him with
these words , "You son-of-a-bitch , I will kill you." After one of the witnesses had been
called by the Board to testify as to Dove 's threats , counsel for the Board offered to call
several others who had been present . The Trial Examiner, however , called Dove to the
stand. The latter admitted the threats and name-calling but denied having threatened to
kill Norte. Dove admitted that he was "mad" and "did tell Mr. Norte a few things."
Upon request of the Trial Examiner, counsel for the respondent, who acknowledged responsi-
bility for Dove's presence , openly warned Dove against repeating such conduct.
28 Compare Section 8 (4) of the Act , which prohibits an employer from discriminating
against an employee for filing charges or giving testimony under the Act.
PHELPS DODGE REFINING CORPORATION 579
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
We have found above that the respondent discriminatorily dis-
charged Norte and Acosta; that it discriminatorily refused to rein-
state Reyes to his former position as a hot-sheet man; that it
discriminatorily transferred Valdez to a wet-flapping job, there-
after refused to reinstate him to his former position as a stripper,
and thereby caused him to leave his employment; and that it thereby
and by other acts interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act. To effectuate the policies of the Act and in accordance with
our usual practice, we shall order the respondent to cease and desist
from such unfair labor practices and to offer to Reyes, Valdez,
Norte, and Acosta reinstatement to their former or substantially
equivalent positions, and to make them whole for any loss of pay
they may have suffered by reason of the respondent's discrimination
against them, by the payment to each of them a sum of money equal
to the amount he would normally have earned from the date of the
discrimination against him to the date of the offer of reinstate-
ment, less his net earnings 29 during the respective period of
discrimination.-
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local 501, International Union of Mine, Mill & Smelter Workers,
affiliated with the C. I. 0., is a labor organization, within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment and the terms and conditions of employment of Jose Antonio
'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.
ao The respondent 's attorney stated at the oral argument that Reyes had been reinstated
to hot -sheet work after the hearing. However , there is no evidence before the Board of
this alleged reinstatement . On the other hand, the record indicates that Reyes suffered
no loss of pay as a result of the discrimination against him . We shall , therefore , not order
the respondent to make him whole for any loss of pay, but our reinstatement order shall
be construed to require the respondent to offer him reinstatement to hot -sheet work. Of
course, our order of reinstatement herein does not require the respondent to repeat such
affirmative action as it may already have taken.
580 DECISTONS OF' NATIONAL LAEOR RELATIONS 180ARD
Reyes, Aurelio Valdez, Edmundo Norte, and Bernardo Acosta.
thereby discouraging membership in Local 501, International Union
of Mine, Mill & Smelter Workers, affiliated with the C. I. 0., the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Phelps Dodge Refining Corporation, El Paso, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 501, International Union
of Mine, Mill & Smelter Workers, affiliated with the C. I. 0., or any
other labor organization of its employees, by discharging, transfer-
ring, or refusing to reinstate any of its employees, or in any other
manner discriminating in regard to hire or tenure of employment or
any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Jose Antonio Reyes, Aurelio Valdez, Edmundo Norte,
and Bernardo Acosta, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, in the manner set forth in the
section entitled "The remedy" above;
(b) Make whole Aurelio Valdez, Edmundo Norte, and Bernardo
Acosta for any loss of pay they have suffered by reason of the re-
spondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount he would normally have earned
as wages from the date of the discrimination against him to the date
of the offer of reinstatement, less his net earnings during such period ;
PHELPS DODGE REFINING CORPORATION 581
(c) Post immediately in conspicuous places throughout the re-
spondent's plant at El Paso, Texas, 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) and (b) of this Order; (2) that the respondent will take the
affirmative action set forth in paragraphs 2 (a) and (b) of this
Order; and (3) that the respondent's employees are free to become or
remain members of Local 501, International Union of Mine, Mill &
Smelter Workers, affiliated with the C. I. 0., and that the respondent
will not discriminate against any employee because of his membership
in or activity on behalf of that organization;
(d) 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.