Shenandoah-Dives Mining Co.

National Labor Relations Board - Board Decisions

Oct 3, 1941

35 N.L.R.B. 1153 (N.L.R.B. 1941)

In the Matter Of SHENANDOAH-DIVES MINING COMPANY and INTER-
NATIONAL UNION OF MINE, MILL & SMELTER WORKERS, LOCAL No. 26
and SAN JUAN FEDERATION OF MINE, MILL AND SMELTER WORKERS,
PARTY TO CONTRACT
Case No. C-1615.-Decided October 3, 1941
Jurisdiction : metalliferous ore mining and milling industry.
Unfair Labor Practices .
In General: employer held responsible for activities of its supervisory employees
regardless of whether it sanctioned or proscribed such acts where the effect
of such coercive acts on the employees is telling.
Company-Dominated Union: employer through its supervisory employees pro-
pelled formation of, by allying itself with an insurgent group of employees
who-voted to withdraw from the outside union, call off strike, and form the
inside union-contributed support thereto : by according recognition and
entering into contract with, although it had not been designated as such
representative by an uncoerced majority of employees in an appropriate unit;
by delegating it authority to determine who should be recalled to work: and
by refusing a union employee who engaged in the strike a recommendation
to aid him in securing work elsewhere.
Discrimination: refusal of employer to reinstate striking employees upon appli-
cation where strike was prolonged by its unfair labor practices.
Collective Bargainu+g- charges of, di iiIs^ed
Remedial Orders : disestablishtnent of dominated organization ordered; contract
with dominated organization abrogated, unfair labor practice strikers ordered
reinstated and awarded back pay from date of refusal of application to offer
of reinstatement; notices ordered posted in mine and mill as well as in the
establishment of an individual where employer customarily posts notices of
interests to its employees.
Messrs. Marion A. Prowell and Paul S. Kuelthau, for the Board.
McCloskey cC Beise, by Messrs. Reese McCloskey and Charles J.
Beise, both of Durango, Colo., for the respondent
Adams, Heckman ct Raso, by Messrs. E. B. Adams, Scott TV. Heck-
man, and Amos Raso, all of Grand Junction, Colo., for the Federation.
Mr. Richard Johnston, of counsel to the Board
35 N L. R. 13, No. 210
1153
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Silverton Miners
-Union No. 26, herein called the Union, affiliated with International
Union of Mine, Mill & Smelter Workers, herein called the Inter-
national , the National Labor Relations Board, herein called the
Board, by the Regional Director for the Twenty-second Region
(Denver, Colorado ), issued its complaint dated October 10, 1939,
and an amendment to its complaint dated October 11 , 1939, against
Shenandoah -Dives Mining Company , Silverton, Colorado , herein
called the respondent , alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (2), and (5) 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,
and copies of the Amendment to the Complaint , were duly served
upon the respondent , the Union , and San Juan Federation of Mine,
Mill and Smelter Workers, herein called the Federation.
The complaint , as amended , alleged in substance ( 1) that the
respondent vilified and publicly criticized the leaders and-officers of
the Union , incited its employees and private citizens of Silverton,
Colorado, to riot and mob violence against representatives of the
International and against members of the Union , actively participated
in such riot and mob violence , condoned acts of violence against
members of the Union , and persuaded' and prevailed upon local
officials of Silverton , Colorado, to deny civil rights to representatives
of the International and to members of the Union ; (2) that in
March 1939 and at all times thereafter the respondent refused and
continues to refuse to bargain collectively in good faith with the
International and with the Union, the exclusive representatives of the
employees in an appropriate unit; ( 3) that on July 16, 1939 , because
of the respondent 's above-stated refusal to bargain collectively in
good faith , the members of the Union went on strike and have re-
mained on strike from that date to the date of issuance of the amend-
ment to the complaint , and that the strike was prolonged by the
respondent 's other unfair labor practices alleged in the complaint;
(4) that in August 1939 and at all times since the respondent domi-
nated and interfered with the formation and administration of the
Federation , contributed financial support thereto, and required mem-
bership in the Federation as a condition of employment; and (5)
SHENANDOAH-DIVES MINING COMPANY 1155
that in September 1939 the respondent entered into an illegal exclusive
bargaining contract with the Federation.
On October 17, 1939, the respondent filed a motion to make the
complaint as amended more definite and certain , and on October 19,
1939 , filed its answer denying that the Board has jurisdiction over the
subject matter of this proceeding or over the respondent , admitting
,that the respondent entered into a contract with the Federation, but
denying the unfair labor practices alleged. On October 20, 1939, the
Federation filed an answer denying that the Board has jurisdiction
over the subject matter of this proceeding or over the Federation,
admitting that the respondent entered into a contract with the
Federation , but denying the unfair labor practices alleged.
Pursuant to notice , a hearing was held at Silverton , Colorado, from
October 23 to October 27, 1939, inclusive , before George O. Pratt, the
Trial Examiner duly designated by the Board.
On November 24, 1939, counsel for the Board, the respondent, the
Union , and the Federation entered into a stipulation to the effect
that certain corrections should be made in the official report of the
proceedings. On November 29, 1939, the Trial Examiner ordered
that the record be corrected in accordance with the provisions of
said stipulation.
On January 31, 1940, the International duly filed further amended
charges. , On April 17, 1940, counsel for the Board lodged with the
Trial Examiner a motion to amend the complaint and to reopen the
hearing in order to take additional evidence . The respondent and
the Federation filed objections to the motion with the Trial Examiner.
The Trial Examiner permitted the complaint to be amended and the
Chief Trial Examiner thereafter ordered that the hearing be re-
opened. The complaint , as amended , alleged, in addition to the,
above-mentioned unfair labor practices , that on and after November
25, 1939, the respondent engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and ( 3) and Section
2 (6) and ( 7) of the Act in that ( 1) on November 25, 1939, the Union
notified the respondent that the strike was terminated ; and (2 ) there-
after 85 named employees were refused reinstatement by the respond-
ent because of their membership in the Union and participation in
the strike . On May 3, the respondent filed its answer to the amended
complaint, denying that it had engaged in or was engaging in the
alleged unfair labor practices , and alleging affirmatively ( 1) that
the. strike was terminated on August 28, 1939; ( 2) that on November
25, 1939, all positions of employment with the respondent were filled;
and (3 ) that persons who applied for employment after November
25, 1939, were hired in the order of their application.
Pursuant to notice , a hearing on the amended complaint was held
in Silverton , Colorado, on May 27, 1940, before Earl S. Bellman,
451270-42-vol. 35-74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner duly designated by the Board. At this sup-
plemental hearing the Trial Examiner reserved ruling on the
admissibility into evidence of certain exhibits offered by the
respondent and, marked Respondent Exhibits Nos. 22, 23, and 24
for identification. Those exhibits are hereby admitted into evidence.
The respondent thereafter filed two briefs.
On June 2, 1940, counsel for the Board, the respondent, the Union,
and the Federation entered into a stipulation to the effect that cer-
tain additional corrections should be made in the official report of
the proceedings in the case. Thereafter the Trial Examiner ordered
that the record be corrected in accordance with the provisions of said
stipulation.
On June 14, 1940, the Board, acting pursuant to Article II; Sec-
tion 37, of National Labor Relations Board Rules and Regulations-
Series 2, as amended, ordered that the proceedings in the case be
transferred to and continued before the Board for action pursuant
to Article II, Section 37, of said Rules and Regulations, that no
Intermediate Report be issued, and that Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order be issued.
On October 2, 1940, the Board issued and served upon all the
parties its Proposed Findings of Fact, Proposed Conclusions of Law,
and Proposed Order. Thereafter, the respondent and the Federa-
tion filed exceptions to the proposed findings and the respondent
filed a brief. ,
Pursuant to notice, a hearing for the purpose of oral argument was
held before the Board in Washington, D. C., on November 14, 1940.
,The respondent was represented by counsel and participated in the
argument.
On November 14, 1940, the respondent moved to reopen the record
to receive further evidence on the proposed findings to the effect
that Carl Bleich, a supervisory employee of the respondent, threw a
rock through a window of the union hall on the evening of August 28,
1939. On November 22, 1940, the Board ordered that the record be
reopened (1) to receive such further evidence, and (2) to receive
further evidence on the circulation of Board Exhibit 75. Board Ex-
hibit 75 is a copy of a doggerel entitled "A Striking Mucker's Last
Refrain." A further hearing was thereafter held at Silverton, Col-
orado, on January 9, 10, and 11, 1941, before Earl S. Bellman, the
Trial Examiner duly designated by the Chief Trial Examiner, on
these two issues.
On January 10, 1941, counsel for the Board applied to the Board
to extend its order reopening the record to receive newly discovered
evidence to the effect that one of the respondent's foremen had
conceived, ordered, and paid for the Federation's original member-
SHENANDOAH-DIVES .MINING COMPANY 1157
ship cards. The application was granted and a further hearing
on this issue was held at Salt Lake City, Utah, on February 7, 1941,
before Earl S. Bellman, the Trial Examiner duly designated by the
Chief Trial Examiner.
The Board, the respondent, the Federation, and the Union were
represented by counsel and participated in the hearings. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
The Board has reviewed the rulings of the Trial Examiners on mo-
tions and on objections to the admission of evidence and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed.
By stipulation of counsel for the Board, the respondent, the Union,
and the Federation, dated April 26, 1941, and approved by the Trial
Examiner, provision was made for certain additional corrections in
the official report of the proceedings. Thereafter, by order of the
Board, this stipulation was made a part of the record in the case.
On May 12, 1941, the Board issued and served upon all the parties
its Amendment and Supplement to Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order. Thereafter, the
respondent and the Federatioi filed further exceptions and the
respondent a further brief.
The Board has considered the exceptions and briefs and, save as
the exceptions are consistent 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
1. THE BUSI=NESS OF THE RESPONDENT
Shenandoah-Dives Mining Company is a Colorado corporation en-
gaged at its mine at Silverton, Colorado, in the business of mining,
transporting, and milling metalliferous ore, and selling as concen-
trates the gold, silver, lead, copper, and zinc contained therein. Dur-
ing 1938 the respondent milled 211,293 tons of ore, from which 7,121
tons of concentrate of a gross value of $1,121,731 resulted. That
year the respondent purchased various materials and supplies cost-
ing approximately $329,000, all of which were completely consumed
in the production of ore. Of the materials and supplies purchased,
5.8 per cent were purchased outside of Colorado and shipped by the
respondent to its mine at Silverton, and approximately 4.6 per cent,
purchased by the respondent from dealers or jobbers in Colorado,
originated outside of Colorado.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent sells all the concentrates which it produces to the
American Smelting and Refining Company. It ordinarily ships all
concentrates except those containing zinc or copper to smelters of
the latter company at Durango, Colorado. Because of a temporary
suspension of operations at the Durango plant, such concentrates
were at the time of the hearing being shipped to smelters of the
American Smelting and Refining Company at Leadville; Colorado.
Concentrates containing zinc and copper, constituting together 8.77
per cent in value of all concentrate produced by the respondent,
are shipped by it to the smelters of the American Smelting and
Refining Company at El Paso and Amarillo, Texas. Concentrates
shipped to Durango and Leadville are there further processed to
produce lead bullion and copper matte, containing gold and silver.
Thereafter the American Smelting and Refining Company ships
the lead bullion to Omaha, Nebraska, and the copper matte to Gar-
field, Utah, for further refining.
At the time of the hearing the respondent employed approximately
200 persons.
II. IHE ORGANIZATIONS INVOLVED
Silverton Miners Union No. 26 is a labor organization affiliated
with International Union of Mine, Mill & Smelter Workers, a labor
organization which in turn is affiliated with the Congress of Indus-
trial Organizations. The Union admits to membership employees of
the respondent.
San Juan Federation of Mine, Mill and Smelter Workers is an
unaffiliated labor organization admitting to membership employees of
the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
1. The appropriate unit
The complaint alleges that the mine and null employees of the
respondent engaged at or near Silverton, Colorado, but excluding
i Although we hereinafter find that the respondent did not refuse to bargain collectively
with the Union, we nevertheless make findings, as to the appropriate unit and the repre-
sentation by the Union of a majority of the employees in the appropriate unit, in order
to determine whether the Federation later became the statutory representative of em-
ployees of the respondent . Ordinarily we make no such findings in a complaint case
when we dismiss allegations of a refusal to bargain collectively Matter of Joseph Levy,
Jack Levy, and Isaac Levy, doing business under the name and style of Leybro Manufac-
turing Company and Leybro Manufacturing Co. of New Jersey, Inc and Children's Dress,
Infants Wear, Housedress and Bathrobe Workers Union , Local #91 , International Ladies
Garment Workers Union, 24 N. L R B 786; Matter of the Triplex Screw Company
and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local
No. 1583, 25 N. L. R B . 1126; Matter of Westchester Newspapers, Inc. Westchester
County, Publishers, Inc. and Westchester Newspaper Guild, chartered by American News-
paper Guild , C. I. 0, 26 N. L. R B. 630.
SHENANDOAH-DIVES MINING COMPANY 1159
office employees, foremen, shift bosses; and other supervisory em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining. The answer of the respondent denies this allegation
solely on the ground that the respondent is without knowledge as to
its truth. The answer of the Federation does not deny the allegation.
Upon the entire record we find that the mine and mill employees of
the respondent engaged at or near, Silverton, Colorado, but excluding
office employees, foremen, shift bosses, and other supervisory em-
ployees, at all times material herein constituted and now constitute
a unit appropriate for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other con-
ditions of employment, and that said unit insures to employees of
the respondent the full benefit of their right to self-organization and
collective bargaining, and otherwise effectuates the policies of the
Act.
2. Representation by the Union of a majority in the appropriate unit
The complaint alleges that prior to June 1939" and at all times
since, the Union represented a majority of the employees of the
respondent in the appropriate unit. The answer of the respondent
denies this allegation solely on the ground that the respondent is
without knowledge as to the truth thereof. The answer of the
Federation admits that prior to June 1939 the Union represented a
majority of the employees in the appropriate unit, but denies that
this was true at all times since June 1939. During April 1939, there
were 243 employees in the appropriate unit. Pursuant to its agree-
ment with the Union, the respondent during that month checked off
to the Union the dues of 203 employees whose assignments of such
dues the respondent held. From July 1 to July 15, 1939, the re-
spondent's last operating period before the strike, there were 242
employees in the appropriate unit, at least 194 of whom were mem-
bers of the Union. At no time prior to July 15, 1939, did the re-
spondent question that the Union represented a majority of the
employees in the appropriate unit.
As will hereinafter appear, a considerable number of employees
on and after August 28, 1939, terminated their membership in the
Union. However, it is plain, and we find, from the facts set forth
below and the record, that such resignations did not result from a
free choice upon the part of the employees, uninfluenced by the re-
spondent's interference, restraint, and coercion within the meaning of
2 The Union admits shift bosses to membership and has bargained for them with the
respondent However, since the Union desires their exclusion from the unit , and since
the respondent has not opposed their exclusion , we shall exclude shift bosses from the
unit. The status as bargaining representative of neither the Union nor the Federation
would be affected by the inclusion in the unit of shift bosses
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. They were therefore ineffective to deprive the Union of its
status as collective bargaining representative.3
We find that on April 1, 1939, and at all times thereafter, the Union
was and now is the duly designated representative of a majority of
the respondent's employees in a unit appropriate for the purposes of
collective bargaining and pursuant to Section 9 (a) of the Act was
and now is the exclusive representative of all employees in such unit
for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
3. The alleged refusal to bargain
On June 1, 1938, the respondent entered into a written contract-
with the Union, recognizing it as the exclusive bargaining representa-
tive of all the respondent's employees eligible to membership in the
Union and governing the wages, hours, and other working conditions
of those employees. This agreement was for a term of 1 year, auto-
matically renewable from year to year thereafter unless one of the
parties thereto should give notice 30 days prior to the expiration of
a yearly term of a desire to modify the agreement. On April 27,
1939, the Union submitted to the respondent a proposed new agree-
ment with a request that the respondent meet and negotiate with the
Union. The Union thus gave notice to the respondent of its desire to
modify the existing agreement. On the following day the respondent
notified the Union of its refusal to consider any contract negotiations
pending determination of the price to be paid for silver mined after
June 30, 1939. In a letter written on May 9, 1939, the 'respondent
reiterated its refusal to participate in contract negotiations pending
determination of the price of silver, but declared-its willingness to
negotiate with representatives of the Union after the price of silver
should have been determined. The respondent proposed that the
existing agreement be amended meanwhile to continue in effect from
month to month after June 1, 1939. The Union refused this offer
and renewed its prior request that the respondent negotiate at once.
On May 29, •1939, Charles Chase, the respondent's general manager,
notified the Union that he would meet with representatives of the
Union on May 30 or 31. A number of conferences between the Union
and the respondent were thereafter held between May 31 and July
28, 1939. Representatives of both the International and the Union
participated in these conferences. The respondent was represented
by several of its officials.,
3 N L R B v B? a lford Dyeinq Ass'n, 310 U. S 318: Continental Oil Co v. N L. R. B ,
113 F (2d) 473 (C. C A 10) ; remanded on another issue , 313 U 8 212
SHENANDOAH-DIVES MINING COMPANY 1161
At the first conference held on May 31, Chase submitted to the
union committee a letter dated May 30, replying, item by item, to the
Union's proposals of April 27. The Union's demands were then
discussed. The respondent rejected the Union's proposals regarding
seniority, a union shop, and a union hiring hall, and. proposed to
require new assignments from employees before continuing the check-
off. The Union rejected this proposal. The respondent refused to
discuss wages until after the determination of the price of silver.
The respondent agreed to the renewal of certain provisions of the
existing contract, but the parties were unable to agree on certain
other of the Union's proposals.
The price of silver was set on July 5, 1939, at 71.71 cents per ounce;
the former price had been 64.64 cents per ounce.4 The union com-
mittee met again with the respondent's representatives on,July 8 and
July 12. On July 8 substantial agreement was reached regarding a
hiring hall, and regarding several other proposals on which the
parties had previously disagreed. They reached no agreement, how-
ever, on the proposed seniority and union shop provisions or on the
respondent's check-off proposal. The respondent refused to increase
wages as requested by the Union, maintaining that its financial posi-
tion would permit of no increase in expenses.' It proposed instead
to continue the existing wage scale for old employees, computing
wages on a somewhat different basis from that previously used, in
order to achieve compliance with the Fair Labor Standards Act of
1938 without increasing expenses.- The respondent proposed further
a wage differential of approximately 50 cents per day between old
and new employees. The Union opposed these proposals, and no
agreement was reached on wages. No further progress toward an
agreement was made at the conference of July 12. In support of its
contention that it could afford no increase in wages the respondent
offered to submit its complete financial records to a certified public
accountant acceptable to both the Union and the respondent, and to
pay for his examination and report if he should find the respondent's
representations to be false. The Union did not accept this offer. On
the afternoon and evening of July 12, at the Union's invitation, Chase
spoke in defense of the respondent's position at two mass meetings
held by the Union.
• The existing wage scale had been set when silver was valued at 77 cents per ounce
a The respondent suffered a net loss of $29,446.46 in 1938 and a net loss of $96,115.54
In 1939.
e The respondent proposed to pay the same total wages as formerly for an 8-hour work
shift, computing wages at a lower hourly rate for the first 6 hours and at one and
one-half times that rate for the last 2 hours.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 13 the Union, by referendum vote, authorized a strike.
Representatives of the respondent and the Union met again the fol-
lowing day, but made no further progress toward an agreement. On
July 15 the respondent refused a request from the Union to reopen
negotiations. with a prior understanding that both parties would
compromise regarding wages and hours. On July 15 the Union
called a strike, to commence the following day. The respondent was
forced to suspend operations almost completely at its mine and mill
beginning July 16.
Between July 24 and July 28 the respondent and the Union held
six conferences with a conciliator from the United States Department
of Labor. On July 26, at one of these conferences, the respondent
agreed in substance to a new seniority clause drafted by the Union,
but on the following day it withdrew its agreement. The record
does not disclose the respondent's reason for this withdrawal. The
conference of July 28 closed without any understanding having been
reached. Chase affirmed the respondent's willingness to meet again
with the Union upon its.request. No further conferences were held,
and the strike continued.
Although the record, especially concerning the respondent's sub-
sequent relations with the Federation, leaves us with some doubts,
we are nevertheless not convinced of the respondent's bad faith in
bargaining with the Union. The respondent met with representa-
tives of the Union at a number of conferences, engaged in extended
discussions of'the Union's proposals, accepted some of those proposals,
offered reasons for rejecting others, and made counterproposals.
Upon the basis of this record we conclude that the respondent sought
to reach an understanding with the Union and that the respondent
did not refuse to embody any understandings reached in a signed
agreement. Accordingly, we find that the respondent did not refuse
to bargain collectively with the Union. We find further that the
strike was not in its inception caused by unfair labor practices of the
respondent.
B. Interference, restraint, and coercion; the Federation
1. Sequence of events.
Following the final conference with the conciliator on July 28,
1939, no further meetings were held between the Union and the
respondent. The strike continued, and the respondent ceased to
operate the pumps which it had kept in operation since July 16 to
prevent the mine from flooding. About August 15, Chase, the gen-
eral manager of the respondent, authorized the printing on the re-
SHENANDOAH-DIVES MINING COMPANY 1163
spondent's hectograph machine of a doggerel entitled, "A Striking
Mucker's Last Refrain." This verse written in ironic vein, laments
the hardships which befell the striking miners of Silverton who mis-
placed their trust in union leaders. Chase denied at the hearing
that he knew who had written the verse, but admitted that he had
authorized its running on the respondent's hectograph, because he
"thought it was ]lalf-way fun and certainly pertinent."
Also during the strike and prior to the formation of the Federa-
tion, Foreman Hughes ordered and paid for 200 membership cards
subsequently used by the Federation.
Since the town of Silverton is largely dependent on the opera-
tion of the respondent's mine and mill for its prosperity, the strike
and the consequent paralysis of all business activity in the town
soon became the dominant topic of conversation. A regular meeting
of the Union was scheduled to be held at the union hall on the
evening of Monday, August 28, and during the day its was rumored
about town that an insurgent group within the Union would attempt
at the meeting to call off the strike.
There can be no doubt that the respondent was aware of these
rumors and that it was favorable to such an attempt. Chase testi-
fied that he drove through Silverton at about 10 p. in. on August
28, "without seeing anything to offer any encouragement, or to be-
lieve that anything was happening." When he was asked at the
hearing to explain this statement, he further testified, "I have been
fourteen years in this and we have built up this enterprise. It was
dead unless these men who sought to restore it succeeded. As I say,
knowing that there was to be a meeting and having heard that fur-
ther insurrection would be attempted, and seeing the street quiet, I
saw no sign of encouragement."
The Union held its scheduled meeting at 8 p. in. that evening at
the union hall. By the time the meeting ended, shortly after 10
o'clock, a considerable crowd 7 had gathered across the street from
the hall. Among those present in the mob were Albert Edwards,
William Hughes, and Carl Bleich. Edwards was a junior shift boss
in the employ, of the respondent. The respondent contents that he
had been discharged early in August and was not at that time an
employee of the respondent. However, Edwards' "discharge" was
caused by lack of work and was effective only while the mine was
completely shut down. He was recalled to work as a shift boss upon
7 Although Fred Patterson, sheriff of San Juan County, testified that there were at no
time more than 15 or 20 persons in the group, and that there were even less than that
number present when the union meeting adjourned, Charles wing testified that there were
30 or 40 people present and Carl Bleich, the respondent's mechanical foreman, testified
that "there seemed to be a considerable crowd in front of the union hall "
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the resumption of operations.8 We find therefore that Edwards
was simply laid off and that he retained his status as supervisory
employee. Although he was a dues-paying member of the Union,
Edwards was not permitted to attend meetings because of his super-
visory status. William Hughes was a foreman in charge of hiring
for the respondent. Carl Bleich was mechanical foreman at the
respondent's mine. Neither Edwards nor Hughes was called as a
witness at the hearing to explain his presence in the mob. Bleich
testified that he was returning from an automobile drive with his
wife when he observed the disturbance and stopped to learn what
was happening.
The union meeting ended at about 10 o'clock, and as those leaving
the meeting crossed the street, several of them were attacked by the
mob which had assembled there. Frank Scheer, who was subse-
quently employed by the respondent as a miner, initiated hostilities
by kicking A. S. Embree, a member of the Union, on the shins.
Eight or ten others then closed in on Embree. When John Han-
cock, also a member of the Union, attempted to come to Embree's
assistance, he was in turn set upon. Frank Scheer caught Hancock
as he was running toward the union hall and threw him into the
gutter. Hancock finally got back to the hall. Meanwhile Bert Ady,
another union member, was beaten by Claude Deering, proprietor of
it local garage, and Aaron Harper, also a union member, was beaten.
All of those attacked managed eventually to regain the shelter of,
the union hall.
June Thomas, the wife of a member of the Union, testified that
while Frank Scheer and others were beating Hancock, she was stand-
ing within 3 feet of Foreman Hughes and directly in front of him,
and that she heard Hughes remark to Charles Wing, "Boy, I sure
picked a good one when I picked Corky Scheer.9 Look at him go.
He is worth his weight in gold." Wing, an employee of Western
Colorado Power Company and a resident of Silverton, testified
that he was standing 2 to 4 feet from Hughes at the time in ques-
tion and that Hughes said nothing to him. Hughes, however, was
not called as a witness at the hearing. We think that Thomas' af-
firmative testimony is entitled to greater weight than the testimony
of Wing, who could at most testify as to whether he had heard
Hughes make the alleged statement. Only Hughes himself could
have testified positively that he did not make the statement at-
tributed to him, and the respondent's failure to call him as a wit-
8 Chase was asked at the hearing whether the respondent had an undeistandmg \%rth
Edwards to the effect that the latter would be reemployed when the mine opened. Chase
replied, "It would be almost obvious that he would be an available candidate for
reemployment."
Frank Scheer is known also as Corky Scheer.
t
SHENANDOAH-DIVES MINING COMPANY 1165
ness is unexplained. Upon the entire record, we find that Hughes
made the statement attributed to him by Thomas.10
After a number of the union members had taken refuge in the
union hall, the mob remained outside, demanding that Embree and
Chester Yates, secretary of the Union, leave town. At the request
of Sheriff Patterson, who acted as intermediary for the mob, the
two men left Silverton that night. Hancock and Ady also left
town that--night to escape further violence at the hands of the mob,
which later searched the building in an unsuccessful attempt to find
them.
After the fighting was over, a group composed mainly of mem-
bers of the Union entered the union hall. There they purported to
hold a special meeting of the Union at 1 minute past midnight on
the morning of August 29. Albert Edwards attended this meeting,
although his honorary membership in the Union did not carry with
it that privilege. Lloyd Jones, editor of the Silverton Standard,
who was allowed to attend the meeting as "press representative,"
testified that he counted 113 persons present. Those present con-
sidered and passed motions to withdraw from the C. I. 0., to call
off the strike, to "abandon" the Union and form a new union, and to
transfer all of the Union's property to the new organization. They
also adopted a constitution for the new organization. Charles
Scheer testified that he and two other employees had prepared this
constitution about August 1, 1939. The meeting ended at about
1:25 a. in.
A few minutes after the adjournment of this meeting, a second
meeting was held for the purpose of organizing the new union.
Everyone interested was invited to attend, and many persons who
were not employees of the respondent were in fact present. Those
present elected officers, adopted as a name "San Juan Federation
of Mine, Mill and Smelter Workers," and voted to open their mem-
bership to everyone in the county who was "concerned." 11 Charles
to In our Proposed Findings issued October 2, 1940 , w e tentatively found that Bleich
"threw a rock through a window of the union hall on the evening of August 28 " Subse-
quently additional evidence was taken upon the respondent 's offer to show that Bleich
was physically incapable of tLrowing such a rock and that other persons had in fact
thrown the two rocks involved Upon the further evidence thus received , we are not
convinced that Bleich was unable to throw a rock through the window of the union ball
On the other hand , each of two witnesses testified that each threw one of the two
rocks thrown Under the conditions of excitement and poor visibility which prevailed,
we believe that the testimony of those two witnesses is more reliable than that of any of
the several witnesses who testified that they saw rocks thrown Accordingly we do not
now find that Bleich threw a rock
11 Leonard Talbot , a member of the union grievance committee , testified that in October
1938 , during a conversation between himself and Cash Cook , the superintendent, Cook
suggested that the respondent ' s employees should have a "company union " ; that "he
had been in the management of a couple of mines that had company unions and they
worked a lot smoother and more satisfactory to the company " Cook denied having sug-
gested that the respondent 's employees should have a "company union " He testified that
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scheer, brother of Frank Scheer and a member of the Union, was
elected president of the Federation. Fenrick Sutherland an em-
ployee, was elected secretary.12 The group decided also to open
negotiations with the respondent and to notify the Board that the
Federation was now -the collective bargaining representative of em-
ployees of the respondent. This meeting lasted until about 3 a. m.
On the following day, August 30, the Federation requested Chase
to meet with a negotiating committee. He consented. After sev-
eral meetings between Chase and the Federation committee, an
agreement was reached on September 5 and a contract was signed
September 6. By the terms of the contract the respondent recog-
nized the Federation as exclusive collective bargaining representative
of all employees eligible to membership in the Federation. Chase
testified that the Federation committee submitted to him a member-
ship list sometime between September 1 and September 4 and that,
one of the respondent's clerks checked that list against the respond-
ent's pay roll either for July 1 to 16 or for May 1939. He did not
testify as to whether the check revealed that a majority of the em-
ployees in an appropriate unit were listed as members of the Federa-
tion. Charles Scheer, president of the Federation, first, testified
that Chase never requested nor did the Federation ever submit to
him a list of its members. He later contradicted this testimony,
stating that such a list was presented to Chase. In any event, a
comparison of the respondent's pay roll for July 1 to 15, 1939, the
last period of operations before the strike, with a list of members
of the Federation from August 29 to September 6, 1939, reveals that
there were 242 employees in the appropriate unit, only 117 of whom
were claimed as members by the Federation. It likewise appears
from the record that less than half the employees in the unit estab-
lished by the contract were claimed as members by the Federation.
It is thus clear, and we find, that on September 6, 1939, when the
respondent signed a contract recognizing the Federation as the ex-
clusive bargaining agency of its employees, the Federation did not
represent a majority of the employees in an appropriate unit. More-
he told Talbot this was his first experience working in a mine where there was a union,
that the nearest we had to anything that could be called a union with any of the large
companies with which I had worked was usually a community league which had no
requirements for membership whatsoever except that they were employees of the company."
Cook admitted telling Talbot that "we would get along without any trouble ' that way,"
but he testified that he told Talbot that he thought such a community league would prob-
ably be illegal under the Wagner Act. Whether or not Cook explicitly suggested the
establishment of an independent union , clearly he expressed a preference for an inde-
pendent "community league" type of union over a union affiliated with one of the large
national labor oiganizations
" Sutherland later resigned because of his position in the respondent 's office. He was
employed by the respondent as a clerk, and it fell within the scope of his employment
to sign time statements which were submitted by the respondent to employees
SHENANDOAH-DIVES MINING .- COMPANY 1167,
over, it is clear that those employees who did join the Federation
did not do so uncoerced by the respondent's unfair labor practices set
forth above.
The contract itself is an adaptation of, the former agreement be-
tween the Union and the respondent. It covers wages, hours, and
other working conditions. It incorporates, in general , the provisions
as to wages and hours which the respondent proposed while nego-
tiating with the Union. It does not provide for a closed shop. Its
other terms are, in general, those agreed upon by the respondent and
the Union during their negotiations. The contract provides that
the respondent shall honor assignments of federation membership
dues, and deduct such dues from the wages of those employees who
submit such assignments, upon the receipt by the respondent of such
assignments from 75 percent of the employees eligible to member-
ship in the Federation. Although the record does not show whether
the respondent received the required assignments, it appears that the
respondent began at an unascertained date to check off and has been
checking off Federation dues.
Upon the advice of their attorney, a committee representing the
Union, and comprising in part the men who had been forced to leave
town, returned to Silverton on September 6, 1939, to demand the
return of the union property of which the Federation had taken
possession13 The party drove to the courthouse where, after some
discussion , they persuaded the sheriff and the marshal to accompany
them to the union hall. At the union hall Reid Robinson, a member
of the committee, demanded the return of the property to the Union's
possession . Charles Scheer, who stated that he was in charge, re-
fused the demand. The committee then left.
While the committee was at the courthouse, Cash Cook, superin-
tendent, William Hughes, foreman, and Max Sarles, master mechanic,
of the respondent, drove slowly past in their automobiles, observing
the union group intently. When the party moved on to the union
hall, where a considerable crowd had gathered, Hughes was again
present, C. L. Hamblin and John Hancock, both members of the com-
mittee, testified that Hughes appeared to be taking notes with pencil
and paper. The respondent did not put Hughes on the stand at the
hearing to-explain his presence on these occasions. Cook testified
that he and Hughes had remained, in town that, day in order to speak
to men who might be interested in working the following day, when
the mine was to reopen. He stated that he was attracted by the crowd
at the union hall, drove past the hall in his auto, and then circled the
block, returning to where he could see what transpired.
3 The Federation had taken possession of the union hall and of the miners' Union
Hospital
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the Federation's refusal to surrender possession of the
union hall , the officers of the Union commenced injunction proceedings
against the Federation on behalf of the Union and all of the other
members thereof.14 Some 78 persons, whose names were among those
submitted to the court as members of the Union, thereafter filed with
the court printed statements disclaiming any interest in the action and
requesting that their names be stricken from the record as parties
plaintiff in the case. Edward Talbot, an employee of the respondent,
testified that he was instructed by his foreman, Walter Gray, to sign
such a disclaimer . Talbot testified, He told me that I had better
sign it and get it over with." Gray denied having made such a state-
ment. ' He testified that Talbot asked his advice on signing a dis-
claimer, and that he replied he "didn't see any harm" in signing it,
and, "I wouldn't be afraid to sign it myself. You use your own judg-
ment." In view of the fact that Gray admitted having discussed the
strike with other employees, the respondent's admitted partiality
toward the Federation, and the other circumstances of the case, we
find that Gray in substance told Talbot to sign a disclaimer.
Meanwhile, on September 6, 1939, the respondent resumed opera-
tions at the mine. On that date the respondent posted a list of 21
men who were instructed to report back to work that night. Similar
lists were posted on succeeding days, calling additional Wien back to
work. Cook, .the respondent's superintendent, testified that, in re-
sponse to a request by him, the Federation furnished the respondent
with a list of men to start work, and that the first men recalled to
work were selected from that list. Although Chase denied that such
a list was submitted by the Federation, he admitted that he placed
upon the Federation's negotiating committee the responsibility of
determining who should be recalled to work; that the committee asked
him, "Do you think everybody should go back?" and he replied, "The
responsibility is yours"; and that he asked the committee how they
felt about Knut Svedenborg and Roy Sutherland, two employees who
had been active in the Union and who had refused to join the Federa-
tion. Of the 21 men recalled to work on September 6. the first day
of operations, 19 are persons whose names appear on the Federation's
membership list for August 29 to September 6. Of the first 102 men
recalled to work by the respondent, 70 were claimed as members by
the Federation. Upon the testimony of Superintendent Cook, the
admissions of Manager Chase, and the other circumstances in the
record, we find that the respondent delegated to the Federation author-
24 On October 7, 1939, District Court No. 1773 of the State of Colorado issued a
temporary restraining order against the defendant therein but on March 20, 1940, dis-
missed the cause of action because of the plaintiffs ' refusal to comply with an order
of the court requiring them to amend their complaint to make it more definite and certain
SHENANDOAH-DIVES MINING COMPANY 1169
ity to select the persons to be reinstated, upon the respondent's re-
sumption of operations.
On or about October 15, 1939, Knut Svedenborg asked Chase for
a written recommendation to help him in securing another job.
Svedenborg testified, "Mr. Chase explained to me that he didn't
think anyone who would question the fairness of the company regard-
ing wages, considering the low price of metals, was entitled to a
recommendation." Chase admitted refusing to give Svedenborg a
recommendation, and testified that he told him, "... when you had
occasion day after day and "year after year to see the deplorable
grade of ore coming into the mill, and then joined in demands of
that nature, . . . I think you lost a claim to our recommendation
for intelligence. Svedenborg had been a member of the union nego-
tiating committee and had participated in the strike. We think it
clear from the evidence above set forth, and we find, that Chase
refused to give Svedenborg a recommendation-because of his activity
as a, member of the union negotiating committee and his participation
in the strike.
On November 24, 1939, the Union officially terminated the strike.
The respondent's refusal to reinstate the strikers is dealt with below.
On December 7, 1939, Edmund Bronson wrote to Chase, asking
for a recommendation to aid him in obtaining 'work elsewhere.
Bronson was a member of the Union who had worked for the
respondent up to July 15, 1939, and who had thereafter participated
in the strike. Chase's written reply was, in part, as follows :
Always I have understood that your work was competently
done, and willingly and honestly done . . . So, as far as your
work is concerned, it is easy to recommend you.
On the other side, you seem to have maintained loyal devotion
to Silverton Miners' Union through a strike based on demands
that could mean only the destruction of this company and the
community. No word has reached me that you were especially
active in urging the strike, but it seems you did go along.
Your political opinions are your own and I have no reight
(sic) to question them, but when they take such practical form
as to work toward destruction of mines employing you no place
seems left for you in the scheme of things on which this coun-
try is based. I may not reasonably recommend you to a new
employer for your good work when I know that your thought
may be that your new employer ought not to be allowed to
continue in business.
We think it clear from Chase's letter, and we find, that Chase
refused to give Bronson a recommendation because of his member-
ship in the Union and his participation in the strike.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Concluding findings
The acts and statements of Charles Chase, general manager, and
of Cash Cook, superintendent, hereinabove set forth, are, of course,
attributable to the respondent. It is clear also that Albert Edwards,
William Hughes, Max Sarles, and Walter Gray were supervisory
employees at the times they engaged in the statements and acts
hereinabove set forth, that they represented management, and that
these statements and acts also were attributable to the respondent.
Chase testified that Hughes, Sarles, and Gray were among those clas-
sified as supervisory employees, having authority to hire or discharge,
give orders, see that orders were carried out, or bind the respondent
by contract or action. Chase testified that Edwards also was a super-
visory employee prior to August 1939. We have found .above that he
continued to be a supervisory employee thereafter. Upon the entire
record, and in the light of the respondent's policy and the conduct
of its other supervisory employees, we find that Edwards in acting
as above described represented management.
Cook testified that he had instructed the respondent's department
heads that they must. "absolutely avoid anything resembling union
activity." Several supervisory employees testified that they received
such instructions, However, whether or not such instructions were
given, the respondent on this record remains responsible for the acts
of its supervisory employees. The effect on employees of coercive
acts by supervisory employees is telling, regardless of whether such
acts are sanctioned or proscribed by the employer.
By authorizing the printing on its hectograph machine of "A
Striking Mucker's Last Refrain," the respondent participated in an
attempt to foster dissatisfaction and ultimate insurrection among
the striking members of the Union. The circulation of this verse
was calculated to discredit the union leaders in the eyes of the
strikers and to discourage the continuation of the strike.
We have found that the respondent was aware of rumors that an
insurgent group within the Union would attempt to call off the strike
at the union meeting on August 28, and that the respondent was favor-
able to such an attempt. On the evening of August 28 a mob hostile
to the Union formed across the street from the union hall. Among
those present were Edwards and Hughes, supervisory employees of
the respondent, who were never called as witnesses to explain their
presence on this occasion. Hughes, who had purchased membership
cards used by the Federation, praised the chief assailant during the
assault, thereby expressing his approval of the unlawful assault. Ed-
wards, in, addition to lending his support to the anti-union mob by
his presence therein, participated in the formation of the Federation
SHENANDOAH-DIVES MINING COMPANY 1171
in that he attended the meeting, occurring immediately after the
violence, which purported to abolish the Union to clear the way for
the Federation, The respondent did not by notice or other means dis-
associate itself from the unlawful conduct of the mob which in fact
it had anticipated and desired. The dominating interest which the
strike and all attendant activities of the Union had for the community
could not operate to relieve the respondent of its duty to remain aloof
from any movement to effect a change of leadership within the Union.
On the contrary, we think that the circumstances imposed on the re-
spondent an increased duty to refrain from interfering in any way
with the conduct of union affairs. Under the circumstances disclosed
by this record, we find that the respondent allied itself with, and must
therefore be held responsible for, the rioting and violence of August
2811 The respondent thereby demoralized strikers, disrupted the
Union, and propelled employees into forming the Federation.
On September 6, 1939, the respondent signed a contract recognizing
the Federation -as exclusive collective bargaining representative of
its employees, although, as we have found, the Federation had not at
that time been designated as such representative by an uncoerced ma-
jority of the employees in an appropriate unit. Moreover, as we have
found, the Union continued to be the statutory representative of the
respondent's employees during this period. Consequently, the re-
spondent could not lawfully extend the Federation recognition as such
representative.16 We find that by signing the contract with the Fed-
eration, the respondent unlawfully contributed substantial support
to it.17
When the respondent resumed operations on September 6, it dele-
gated to the Federation authority to determine who should be recalled
to work. By its action the respondent placed in the hands of the
Federation a powerful weapon to be wielded in securing additional
members among the respondent's employees. We find that by giving
the Federation and authority to determine who should be recalled to
work the respondent contributed support to the Federation.-
Considered in the light of the respondent's activities during the
strike and its dealings with the Federation, Hughes' unexplained
presence, both at the courthouse and at the union hall, when the union
committee returned to Silverton on September 6, together with the
conduct of Cook and Sarles on that occasion, constituted an additional
manifestation of hostility to the Union and of partiality toward the
15 Cf. N. L. R. B. v. Elkland Leather Co ., 114 F. ( 2d) 221 (C. C. A. 3), cert . denied,
311 U. S. 705.
ie See N. L. R . B. v. Jones & Laughlin Steel Corp . 301 U. S 1.
a Cf. N. L. R. B v . Pennsylvania Greyhound Lines , Inc., 303 U S 261.
u+ The respondent 's delegation of such authority to the Federation was not made
pursuant to any contract covered by the proviso to Section 8 (3).
4 51270-42-N of 35-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federation. Such behavior by these supervisory employees demon-
strated that the respondent was carefully observing the activities of
union members, and necessarily acted as a further restraint upon the
exercise by union members of their right under the Act to engage in
concerted activities.
Chase's refusal to give recommendations to Svedenborg and Bron-
son was clearly motivated by their membership in the Union and
participation in the strike. We are of the opinion that the expectancy
of receiving such a recommendation upon request, for work well done,
is one of the ordinary incidents of employment. The refusal of such
a recommendation because of an employee's union activity, when it
becomes known to other employees, necessarily operates as a deterrent
to subsequent participation in similar activities by those employees.
We find that by refusing to give recommendations to Svedenborg and
Bronson the respondent interfered with and restrained its employees
in the exercise of rights guaranteed in the Act.
We find that by authorizing the printing on its hectograph machine
of "A Striking Mucker's Last Refrain"; Foreman Hughes' ordering
and paying for membership cards subsequently used by the Federa-
tion; the presence of Albert Edwards and William Hughes in the
mob outside the union hall on August 28, 1939; the statement of Wil-
liam Hughes to Charles Wing on that occasion; the presence of Albert
Edwards at the first meeting of the Federation on August 29, 1939;
the signing of an exclusive representation contract with the Federa-
tion on September 6, 1939; the delegation to the Federation of author-
ity to determine who should be recalled to work; the conduct of Wil-
liam Hughes , Cash Cook, and Max Sarles , on September 6, 1939, when
the union committee returned to Silverton; Walter Gray's telling Ed-
ward Talbot to sign a disclaimer ; Charles Chase's refusal to give accom-
mendations to Knut Svedenborg and Edmund Bronson; the respond-
ent's discrimination in regard to hire and tenure of employment dis-
cussed below ; and the threats and discrimination involved in these
statements and acts of the respondent, the respondent dominated and
interfered with the formation and administration of the Federation
and contributed support to it, and otherwise interfered with, re-
strained, and coerced its employees in the exercise of the rights to self-
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes
of collective bargaining, as guaranteed in Section 7 of the Act.
C. Effect of the unfair labor practices upon th e, strike
The strikers remained employees within Section 2 (3), of the Act
on and after July 16, 1939, the day the strike began. Such was their
SHENANDOAH-DIVES MINING COMPANY 1173
status on or about August 15 and on August 28, when unfair labor
practices, as hereinabove set forth, took place. Thereafter some
employees succumbed to such coercion and abandoned. the strike.
Others, however, remained loyal to the Union which did not termi-
nate the strike until November 24. They did not acquiesce in the
abandonment of the strike.19 They evidenced their continuance of
the strike between August 28 and November 24 by refraining from
applying for, or accepting, reinstatement prior to November 25, and
by applying thereafter. Although a number of them received bene-
fits under a State unemployment compensation statute which ap-
parently purports to deny unemployment compensation to strikers,
this fact alone cannot on this record alter our finding, and we ac-
cordingly find, that such persons before and after obtaining benefit
payments and the other loyal union members remained away from
work prior to November 25 in connection with their dispute with
the respondent. Moreover, we find that the unfair labor practices
on and prior to August 28 prolonged the strike and that unfair labor
practices thereafter prolonged it further.
D. The discriminatory refusal, to reinstate
The complaint, as amended, alleges that on November 25, 1939,
and thereafter; the respondent refused to reinstate to their former
positions of employment 85 employees who participated in the strike
of July 15, 1939, for the reason that they remained members of the
Union and participated in the strike. It is further alleged that, by
such refusal to reinstate, the respondent discriminated and is dis-
criminating in regard to the hire and tenure of employment of the
85 individuals, thereby discouraging membership in the Union, in
violation of Section 8 (3) of the Act. The respondent denies these
allegations.
As stated above,-after signing a contract with the Federation, the
respondent resumed operations at its mine on September 6, 1939.
From day to day thereafter it posted lists of persons who were
instructed to return to work at specified times. By November 1939,
the respondent had on its pay roll 224,mine and mill employees ex-
clusive of office and supervisory employees. One hundred sixty-
eight of these employees were persons who had worked, for the
respondent at some time prior to the strike; fifty-six were new
employees. On.November 24, 1939, the Union officially terminated
19 The employees who voted to end the strike on August 29 could not and did not
thereby foreclose other employees from engaging in a strike or other concerted activity
Cf Matter of Washougal Woolen Mills and Local 127, Textile Workers Union of America,
23 N L R B 1 -
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike. On November 25 the Union notified the respondent of
this action, and acting in behalf of the strikers, requested their re-
instatement. On December 7, 1939, the Union made written applica-
tion to the respondent for the reinstatement of 84 named indi-
viduals.20 A considerable number of these 84 persons also made
individual applications for reinstatement either by letter or in person.
Charles Setterquist, named in Appendix A, is the only person
named in the complaint who is not among the 84 persons in whose
behalf the Union applied for reinstatement. Nor does it appear that
he personally applied for reinstatement. His name is not on the
respondent's pay roll for July 1 to 15, 1939, the last operating
period before the strike, and there is no evidence that he partici
pated in the strike. We find that the respondent did not discrimi-
nate against Setterquist in regard to the hire and tenure or terms
and conditions of his employment. With respect also to six other
persons named in Appendix A, who were also among the 84 persons
for whose reinstatement the Union applied, the record fails to sup-
port the allegations of discrimination. Chester Yates, one of the
six, quit his job with the respondent in June 1937 to accept a full-
time position as secretary of the Union. This position he held con-
tinuously until the time of the strike, in which he participated. At
the time of the hearing he had not been reinstated. There is no
reason to believe that Yates intended, when he quit, to return to his
job, or that he would have been reemployed by the respondent had
the strike not occurred. The remaining five persons named in Ap-
pendix A worked for the respondent at one time, but they left the
respondent's employ prior to the commencement of, the strike on
July 15, 1939.21 There is no evidence that any of these individuals
participated in the strike in any way, that they intended to return
to their jobs, or that any of them would have been reemployed by
the respondent had the strike not occurred.
We find that the respondent did not discriminate against the per-
sons named in Appendix A in regard to the hire and tenure or terms
and conditions of their employment.
The remaining 78. persons of the 84 named in the Union's request
for reinstatement are listed in Appendix B. Special mention need
be made of only 5 of these persons. Joe Kinterknecht and Claude
Robinson have been recalled to work by the respondent'22 but the
2° The respondent 's argument , that the applications of November 25 and December 7
are insufficient because filed by the Union is without merit because , among other reasons,
the respondent's refusal to reinstate the strikers was not based on this ground.
21 Lovingood last worked for the respondent on June 27 , 1939; Maynes on March 23,
1939 ; Miskinis on May 30, 1939 ; Raskovich on May 9, 1939 ; and Smith on April 7, 1939.
Miskinis was subsequently reemployed by the respondent on.May 19, 1940.
22 Kinterknecht was recalled to work on February 10, 1940, and Robinson on May
18, 1940.
SHENANDOAH-DIVES MINING COMPANY 1175
record does not show whether they have been reinstated to their
former or substantially equivalent positions with full seniority and
other rights and privileges. Elmer Dosher and Aaron Harper are
union members who temporarily left their jobs prior to the strike,
after requesting and receiving from the respondent permission to
do so and assurances that their jobs would be held open for them.23
Dosher returned to Silverton during the strike, on July 28, 1939.
Harper returned to the mine a few days before the strike and asked
for his job back. Cook, the superintendent, refused to give him
work, giving as a reason the imminence of the strike, but said he
would put Harper "on the list" for work after the strike was over.
Both of these men participated in the strike as pickets. Neither
had been reinstated at the time of the hearing. Andy Sutyak is also
a member of the Union. He had worked for the respondent about 5
years when he was injured on the respondent's tram on October 30,
1937. Because of his injury, he was unable to work thereafter until
early in the summer of 1939. He then accepted light work with an:
other employer. A few days before the strike commenced, Sutyak
met Cook and Hughes in a Silverton hardware store. He told them
what he was doing, and they assured him that he could return to the
mine at any time he was ready and that the respondent would give
him light work to do. Sutyak participated in the strike as a picket.
The Union applied for his reinstatement on November 25, 1939.
Thereafter, on December 13, he applied personally to Chase for rein-
statement. He testified -that Chase refused him, saying, "No, Andy,
there is no job for you. You were too much of a destroy to the com-
pany. You stick with the wrong people ; you go down there and
make a bunch of lies and come up here and want your job back with
the company and ask for sympathy." When Sutyak protested that
he had done nothing to destroy the respondent, Chase replied, "No,
Andy, you didn't, but you sure tried your damndest." Chase heard
Sutyak's testimony and testified that it was substantially correct.
We find that Chase made a statement to Sutyak substanially as
alleged. Suyak had not been reinstated at the time of the hearing.
Since the strike was called as a consequence of and in connection
with a current labor dispute, and since, as we have found, it was pro-
longed by the respondent's unfair labor practices, the strikers named
23 Dosber stopped working on June 7, 1939 , because of illness, and left Silverton several
days later on his doctor ' s orders Before leaving he told Verne Hamish, his shift boss,
of his reason for going, and stated that he might be away for "a couple of months."
Hamish replied , "Go right ahead , Elmer. Take your time because you will always have a
job when you come back ." Dosher's brother, Charles, also spoke to Hamish and received
similar assurances that Elmer Dosher's job would be waiting for him upon his return.
Harper, on April 18, 1939, asked and received from the respondent permission to
leave his job temporarily to take other work, with the understanding that if he should
decide to return his job would be held open for him.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Appendix B remained employees of the respondent within the
meaning of Section 2 (3) of the Act.24 Because the strike was pro-
longed by the respondent's unfair labor practices, these-striking em-
ployees were entitled to reinstatement to their forlner or substantially
equivalent positions upon application therefor. The failure of the
respondent thus to reinstate the persons named in Appendix B by
displacing, if necessary, persons hired after August 28, 1939,25 who
were not employees of the respondent on that date, constituted dis-
crimination against such employees in regard to the hire and tenure
and terms and conditions of their employment, 'thereby discouraging
membership in the Union and encouraging membership in the Fed-
eration.26 ,
Moreover, the record reveals the respondent's intention to discrimi-
nate against the striking employees because of their membership in
the Union and participation in the strike. The delegation to the Fed-
eration of authority to determine who should be recalled to work
indicated such an intention. Chase's refusal to give recommendations
to Bronson and Svedenborg because of their union activities, and his
refusal of employment to Sutyak for the same reason, further demon-
strated the respondent's intention to discriminate against the strikers.
Chase testified-,at the hearing that he considered that those employees
who continued as members of the Union and participated in the strike
after the formation of the Federation were working toward the de-
struction of the respondent and of the community. Finally, so far as
the record shows, only 12 of the 32 persons hired by the respondent
between November 25, 1939, and April 30, 1940, had previously worked
for the respondent; 20 were new employees.
We find that by the foregoing refusal to reinstate the striking em-
ployees listed in Appendix B the respondent discriminated with re-
24 Dosher , Harper, and Sutyak did not permanently quit their jobs, nor were they
discharged by the respondent . The mere fact that they were not physically working for
the respondent when the strike began does not affect their status as employees under
the Act. Matter of Western Felt Works , a corporation and Textile Workers Organizing
Committee, Western Felt Local, 10 N. L. R. B. 407; Matter of Suehne Manufacturing
Company and Local No. 1791, United Brotherhood of Carpenters and Joiners of America,
7 N L R B 304.
2 The unlawful assault took place on August 28. Despite a prior unfair labor practice
in connection with the doggerel , we have selected August 28 as determinative because the
precise date of the first unfair labor practice is unknown , and no new employees were hired
between its occurrence and August 28.
z" Black Diamond Steamship Corp. v. N. L. R. B.,' 94 F. (2d) 875 (C. C A 2 ), cert.
denied, 304 U. S 579, enf 'g Matter of Black Diamond Steamship Corporation and Marine
Engineers ' Beneficial Association , Local No. 33 , 3 N. L. R B . 84; N. L. R. B. v. American
Manufacturing Company, 106 F. (2d) 61 (C. C. A 2), 60 S. Ct. 616 , enf'g as mod.
Matter of American Manufacturing Company; Company Union of the American Manu-
facturing Company; the Collective Bargaining Committee of the Brooklyn Plant of the
American Manufacturing Company and Textile Workers ' Organizing Committee , C. 1. 0.,
5 N L R B. 443; Matter of Western Felt Works, a _ corporation and Textile Workers
Organizing Committee, Western Felt Local, 10 N. L . R. B. 407; Matter of McKaig -Hatch,
Inc and Amalgamated Association of Iron, Steel , and Tin Workers of North America,
Local No 1139 , 10 N. L. R. B. 33.
SHENANDOAH-DIVES MINING COMPANY 1177
gard to the hire and tenure and terms and conditions of employment
of those employees, thereby discouraging membership in the Union
and encouraging membership in the Federation, and that the respond-
ent thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act
and to restore as nearly as possible the conditions which existed prior
to the commission of the unfair labor practices.
We have found that the respondent dominated and interfered with
the formation and administration of and contributed support to the
Federation. We shall order the respondent to cease and desist there-
from. In order to free the employees from the effects of the respond-
ent's domination and interference with and contribution of support
to the Federation, to restore to them the rights guaranteed in Sec-
tion 7 of the Act, and otherwise to effectuate the policies of the Act,
we shall also order the respondent to disestablish the Federation and
to withdraw all recognition from that organization as the represent-
ative of any of its employees for the purposes of, collective
bargaining.
Since the agreement between the respondent and the Federation,
constitutes an unfair labor practice, the fruit of unfair labor prac-
tices, and a means by which to perpetuate them, we shall order the
respondent to cease giving effect to this contract, or to any extension,
renewal, modification, or supplement thereof or any superseding con-
tract with the Federation.27 Nothing in the order, however, shall
be taken to require the respondent to vary those wages, hours, and
other such substantive features of its relations with the employees
themselves, which the respondent may have established in perform-
ance of its contract with the Federation.
27N. L. R. B. v. Stackpole Carbon Company, 105 F. (2d) 167 (C. C. A. 3 ) ; Hamilton-
Brown Shoo Company, a corporation v. N. L. R. B., 104 F. (2d) 49 (C. C. A. S).
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that the employees listed in Appendix B ceased
work as a consequence of and in connection with a current labor dis-
pute, that unfair labor practices occurred which had the effect of
prolonging the strike, and that the respondent discriminated against
them in- regard to the hire and tenure and terms and conditions of
their employment by refusing to reinstate them upon application
therefor made in their behalf. Although Joe Kinterknecht and
Claude Robinson had been recalled to work at the time of the hear-
ing, it does not appear whether or not they had been reinstated to
the positions to which they were entitled.
We shall, therefore, order the respondent to offer reinstatement
to their former or substantially equivalent positions to all employees
listed in Appendix B and to give them back pay.
The offer of reinstatement shall be without prejudice to their
seniority and other rights and privileges. Such reinstatement shall
be effected in the following manner : The number of persons hired
after August 28, 1939, who were not employees of the respondent
on that date, whose dismissal may be required to provide immediate
reinstatement, shall be dismissed. If, despite such discharges, there
is not, by reason of a reduction in the force of employees needed, suf-
ficient employment immediately available for the remaining em-
ployees, including the employees named in Appendix B, all available
positions shall be distributed among such remaining employees in
accordance with the respondent's usual method of reducing its force,
without discrimination against any employee because of his union
affiliation or activities, following a system of seniority to such extent
as has heretofore been applied in the conduct of the respondent's
business. Those employees remaining after such distribution, for
whom no employment is immediately available, shall be placed upon
a preferential list prepared in accordance with the principles set
forth in the previous sentence and shall, thereafter, in accordance
with such list, be offered employment as it becomes available and
before other persons are hired for such work.
The respondent will also be required to pay each of the employees
named in Appendix B an amount equal to that which he would have
earned from November 25, 1939, to the date of the offer of reinstate-
ment, less his net earnings 28 during that period, had the respondent
21 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 Unsted 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 . Republic Steel Corp. v. N. L. R . B., 311 U. S. 7.
SHENANDOAH-DIVES MINING COMPANY 1179
not discriminated in regard to his hire and tenure of employment.
Even if we were to 'assume that the respondent's denial of re-
instatement to the employees listed in Appendix B when the Union
made application on their behalf did not constitute an unfair labor
practice, we should, nevertheless, under the circumstances, award re-
instatement and back pay to these employees in the manner set
forth herein. The strike having been prolonged by unfair labor
practices, any refusal by the respondent of a request for reinstatement
made by the employees was at all times subject to such order as the
Board in executing the purposes and policies of the Act might make,
directing the respondent to reinstate said employees, to dismiss per-
sons hired since August 28, 1939, who were not employees of the
respondent on that date, for the purpose of making positions avail-
able for such reinstatement, and to compensate such employees for
any loss of wages sustained by virtue of a refusal.29
Our order will include a provision for the posting of certain no-
tices. Since the respondent has an agreement with Lloyd Jones for
the use of a part of his printing establishment in Silverton as a hiring
hall, and customarily posts there the names of men whom it desires
to report for work, we shall order the respondent to post a notice
in a conspicuous place in the printing establishment of Jones as well
as in its mine and mill.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Silverton Miners Union No. 26 of the International Union of
Mine, Mill & Smelter Workers and San Juan Federation of Mine,
Mill and Smelter Workers are labor organizations within the meaning
of Section 2 (5) of the Act.
2. The mine and mill employees of the respondent engaged at or
near Silverton, Colorado, but excluding office employees, foremen,
shift bosses, and other supervisory employees, at all times material
herein, constituted and now constitute a unit appropriate for the
purpose of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment within
the meaning of Section 9 (b) of the Act.
3. Silverton Miners Union No. 26 of the International Union of
Mine, Mill & Smelter Workers was on April 1, 1939, and at all times
°Black Diamond Steamship Coip . v. N. L. R B, 94 F. ( 2d) 875, cert . den. 304 U. S.
579, enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers'
Beneficial Association , Local No. 33, 3 N L. R. B . 84; Matter of McKaig-Hatch, Inc. and
Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No 1139,
10 N. L. R. B. 33 ; Matter of Western Felt Works, a corporation and Textile Workers
Organizing Committee , Western Felt Local, 10 N. L. R. B. 407.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter has been, the exclusive representative of all such employees
for the purposes of collective bargaining, within the meaning of Sec-
tion 9 (a) of the Act.
4. By dominating and interfering with the formation and admin-
istration of San Juan Federation of Mine, Mill and Smelter Workers
and by contributing support to said organization, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act.
5. By, discriminating in regard to the hire and tenure and terms
and conditions of employment of the employees listed in Appendix B,
thereby discouraging membership in Silverton Miners Union No. 26
of the international Union of Mine, Mill & Smelter Workers and
encouraging membership in San Juan Federation 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.
6. 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.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
8. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act, or within the meaning of
Section 8 (3) of the Act with regard to Charles Setterquist, Chester
Yates, Victor Lovingood, Sam Maynes, Pete Miskinis, Nick Rasko-
vich, or Michael Smith.
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, Shenandoah-Dives Mining Company, and its officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of San
Juan Federation of Mine, Mill and Smelter Workers, or with the
formation or administration of any other labor organization of its
employees, or contributing support to San Juan Federation of Mine,
Mill and Smelter Workers, or to any other labor organization of its
employees;
(b) Recognizing San Juan Federation of Mine, Mill and Smelter
Workers as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
SHENANDOAH-DIVES MINING COMPANY 1181
rates of pay, wages, hours of employment, or other conditions of
employment ;
(c) Giving effect to or performing its contract with San Juan
Federation of Mine, Mill and Smelter Workers relating to rates of
pay, wages, hours of employment, and other conditions of employ-
ment, or any extension, renewal, modification,. or supplement thereof
or any superseding contract with such Federation;
(d) Discouraging membership in Silverton Miners Union No. 26
of the International Union of Mine, Mill & Smelter Workers, or any
other labor organization of its employees, or encouraging membership
in San Juan Federation of Mine, Mill and Smelter Workers, or any
other labor organization of its employees, by 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 employ-
ment ;
(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 of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid and protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from San Juan Federation of Mine,
Mill and Smelter Workers as the representative of any of its em-
ployees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, and completely disestablish San
Juan Federation of Mine, Mill and Smelter Workers as such repre-
sentative ;
(b) Offer to the employees listed in Appendix B immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and priv-
ileges, such offer to be effected in the manner set forth in the section
entitled "The remedy," placing those employees for whom employ-
ment is not immediately available upon a preferential list in the
manner set forth in said section, and thereafter, in said manner, offer
them employment as it becomes available;
(c) Make whole the employees named in Appendix B for any losses
of pay they may have suffered by reason of the respondent's discrim-
ination in regard to their hire and tenure and conditions of employ-
ment, by payment to each of them, respectively, of a sum of money
equal to that which each would normally have earned as wages during
1182 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
the period from November 25, 1939, to the date of the offer of rein-
statement, less his net earnings, if any, during said period, had the
respondent not discriminated in regard to his hire and tenure and
terms and conditions of employment;
(d) Post immediately in conspicuous places throughout its mine
and mill and in the printing establishment of Lloyd Jones, in Silver-
ton, 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; (3) that the
respondent's employees are free to become or remain members of Sil-
verton Miners Union No. 26 of the International Union of Mine, Mill
and Smelter Workers and the respondent will not discriminate against
any employee because of membership or activity in that organization;
(e) Notify the Regional Director of the Twenty-second 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, in so far as it alleges
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (5) of the National Labor Relations Act, and
in so far as it alleges that the respondent has engaged in unfair labor
practices within the meaning of Section 8 (3) of the said Act with
regard to the employees named in Appendix A, be, and it hereby is,
dismissed.
APPENDIX A
Victor Lovingood
Sam Maynes
Pete Miskinis
Nick Raskovich
Charles Setterquist
Michael Smith
Chester Yates
APPENDIX B
Joe Aschenbrenner
John Aschenbrenner
James Bell
W. R. Bodine
Louis Bodo, Jr.
Henry Boglino
Mike Borcich
Edmund Bronson
C. N. Campton
Victor Cassagranda
Frank Cerniwey
Gene Clay
Manuel Cordova
P. G. Cuddigan
Joe Dalpra
Charles Dosher
Elmer Dosher
Wilfred Downtain
John Drganc
Emory Earle
SHENANDOAH-DIVES MINING COMPANY 1183
Marion Everett
Arthur Freeland
Ernest Gallagher
George Gallagher, Sr.
Joe Giecek
Anton Girodo
Allen Godfrey
Delmer Godfrey
Joe Grande
C. L. Hamblin
Aaron Harper
Joe Herrera
Cecil Higman
Orley Imes
Tom Jackson
Amos Jaramillo
Levi Jaramillo
Levi Jeantet
Jack Kennedy
Joe Kinterknecht
William Loftus
Donovan Long
Curtis Lyons
D. L. McCluer, Sr.
Tim McCluer
Otis Mays
Emil Millich
William Morgan
Oscar Nelson
Jack Parnell
Tony Perez
Roy Peters
Dave Purdy,
Steve Purdy
Claude Robinson
Joe Romero
Charles Roney
C. S. Rosenstock
Ed Ross
Alfonza Roy
Tappo Salmine
M. J. Stefan
Wilmer Stoddard
Victor Strsky
Roy Sutherland
Andy Sutyak
Knut Svedenborg
Leonard Talbot
Charles Thomas
Joseph Todeschi
Harry Turner
John Turner
Joseph Velardi
Gus Von Fintel
William Walker
John Weiss
Norman Wells
George Yates