Texas Mining & Smelting Company

National Labor Relations Board - Board Decisions

Jul 25, 1939

13 N.L.R.B. 1163 (N.L.R.B. 1939)

In the Matter of TEXAS MINING & SMELTING COMPANY and INTER-
NATIONAL UNION OF MINE, MILL & SMELTER WORKERS, LOCAL.
No. 412
Cases Nos. C-610 and R-664.-Decided July 25, 1939
Antimoi?y Smelting Industry-Interference, Restraint , and Coercion-Company--
Dominated Union: association result of respondent 's expressed opposition to
Union and other unfair practices ; business and civic interests in community
hostile to Union ; election held and plant reopened after economic shut-down in
support of ; disestablished as agency for collective bargaining-Discrimination:
discharges , for Union membership and activity ; sustained as to two employees ;
charge not sustained as to closing of plant to discourage membership in Union-
Unit Appropriate for Collective Bargaining : production employees paid at hourly
rate, excluding employees in blacksmith and repair shops, supervisory and'
clerical employees, and subforemen-Representatives: proof of choice : coin-
parison of membership authorization cards with payroll ; change in majority
representation due to unfair labor practice, disregarded-Collective Bargaining:
employer's refusal to bargain collectively with Union ; refusal to consider pro-
posals by Union relative to proof of its majority status-Duty of Employer:
to cooperate with the Union to a reasonable extent in an inquiry as to claim of
representation ; refusal to negotiate with Union representatives not in respond-
ent's employ ; recognition as exclusive representative-Reinstatement Ordered:
discharged employees-Back Pay: awarded discharged employees-Investigation
of Representatives : petition for, dismissed in view of order to employer to bar-
gain with Union.
Mr. Warren Woods, for the Board.
Neel cC King, by Mr. Nat. B. King, of Laredo, Tex., for the re-
spondent.
Mr. Gobel F. Cravens, of Henrietta, Okla., and Mr. Juan Pena, of
Laredo, Tex., for the Union.
Mr. Philip A. Kazen, of Laredo, Tex., for the Association.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On December 17, 1937, International Union of Mine, Mill and
Smelter Workers, Local No. 412, herein called the Union, filed with
the Regional Director for the Sixteenth Region (Fort Worth, Texas)
a petition alleging that a question affecting commerce has arisen
13 N. L . R. B., No. 110.
1163.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning the representation of employees of Texas Mining and
'Smelting Company, Laredo, Texas, herein called the respondent,
.and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations
Act, 49, Stat. 449, herein called the Act, and an amended charge 1
alleging that the respondent had engaged in and was engaging in
unfair labor' practices' affecting-commerce,- within the -meaning-of
'Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the
Act. 'On January 24, 1938, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act,
'a.nd Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
-authorized the Regional Director to conduct it and to provide for
,an appropriate hearing upon due notice, and, acting pursuant to
Article III, Section 10 (c) (2), and Article II, Section 37 (b), of
the said Rules and Regulations-Series 1, as amended, directed that
the cases be consolidated for the purpose of hearing.
Thereafter, the Board, by the Regional Director, issued its com-
plaint, dated February 5, 1938, alleging that the respondent had
engaged and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (2), (3), and (5) and
'Section 2 (6) and (7), of the Act. The complaint and accompany-
ing notice of hearing, were duly served upon the respondent, the
Union, and Free Employees Association, a labor organization,
'herein called the Association. The complaint alleges, in substance,
that the respondent (1)' on and after November 25, 1937, domi-
nated and interfered with the formation and administration of the
Association, and contributed support to it; (2) on and after Novem-
ber 20, 1937, discouraged membership in the Union by discrimina-
torily discharging and refusing to. reinstate Isidro Cruz and An-
tonio Vasquez; (3) on or about November 25, 1937, closed its plant
to discourage membership in the Union and to encourage member-
ship in the Association; (4) on and after November 14, 1937, re-
fused to bargain collectively with the Union, although it had been
designated as their representative by a majority of the respondent's
'employees within an appropriate bargaining unit; and (5) by the
afore-mentioned acts and refusals to act, and in other ways, inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
Pursuant to the notice, a hearing upon the consolidated cases was
held from February 14 to 25, 1938, at Laredo, Texas, before Harlow
Hurley, the Trial Examiner duly designed by the Board. The Board
'The original charge, designating the Union as "Texas Mine, Mill and Smelter Workers
Union $t 412," was filed on December 7, 1937.
TEXAS MINING AND SMELTING COMPANY 1165,
and the respondent were represented by counsel, and the Union was
represented by Gobel F. Cravens, organizer, and by Juan Pena, local
business agent; all participated in the hearing. On February 19,.
1938, the Association appeared by counsel and presented its motion
to intervene, which was granted by the Trial Examiner. Thereafter-
it participated in the hearing and filed a written plea of intervention
which denied that the Association was in any way dominated or in-
terfered with by the respondent. Full opportunity to be heard, to-
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. Pursuant to extensions-
of the time granted by the Regional Director and by the Trial Ex-
aminer, the respondent filed its answer denying the material aver-
ments of the complaint and setting forth affirmative defenses thereto.
During the course of the hearing, the Trial Examiner made a num-
ber of rulings on motions and on objections to the admission of evi-
dence. The rulings are hereby affirmed.
The parties did not avail themselves of the opportunity afforded
at the close of the hearing to apply for argument before the Board,,
but thereafter the respondent filed a brief which the Board has fully
considered.
On May 5, 1938, the Trial Examiner filed an Intermediate Report,.
a copy of which was duly served on all parties. In it he denied cer-
tain motions of the respondent upon which he reserved decision
at the hearing, found that the respondent had engaged in and was-
engaging in unfair labor practices affecting commerce, within the-
meaning of Section 8 (1), (2), (3), and (5) and Section 2 (f;} and
(7) of the Act, and recommended that the respondent cease and desist
from its said unfair labor practices and take certain affirmative action
remedial of their effect.
On May 17, 1938, the respondent filed exceptions to the Interme-
diate Report and to certain rulings made by the Trial Examiner.
The Board has considered these exceptions and in so far as they are-
inconsistent with the findings, conclusions, and order set forth below,.
finds them to be without merit.
Upon the entire record, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation having its principal'
office and place of business in Laredo, Texas. It is engaged in the
business of smelting antimony and in the sale and distribution of
antimony and antimony products. The principal raw material used
by the respondent is antimony ore, 90 per cent of which is imported-
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Mexico via railroad to its plant at Laredo. Approximately 90
-per cent of the finished products manufactured by the respondent
-are shipped to points in the United States outside the State of
'Texas. In 1937, the respondent processed 28,000 tons of antimony
-ore, and the value of its sales exceeded a million and a quarter
-dollars.
II. THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill and Smelter Workers, Local
No. 412, is a labor organization affiliated with the Committee for
Industrial Organization. It admits to membership all the produc-
lion employees of the respondent.
Free Employees Association is an unaffiliated organization, admit-
ting to membership employees of the respondent only.
M. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. , The appropriate unit
The petition filed by the Union states that all production employ-
ees of the respondent, excluding clerical, laboratory, monthly paid,
-and supervisory employees, constitute a unit appropriate for the pur-
poses of collective bargaining. At the hearing representatives of the
respondent, the Union, and the Board were appointed as a committee
-to check the authorization cards of the Union against the respondent's
pay roll. They agreed that a unit restricted to production employees
paid at an hourly rate and excluding employees in the blacksmith
-and repair shops and subforemen, is appropriate. It appears from
the respondent's brief and from testimony adduced at the hearing
that hourly paid employees in the respondent's laboratory are en-
gaged merely in cleaning, and in carrying samples from the produc-
tion process to the laboratory, and are interchangeable with produc-
tion laborers not assigned to the laboratory. It has been our policy,
where the only union involved so requests, to exclude employees who
are on the fringe of the production unit.2 The facts of the instant
case, however, require the inclusion within the unit of the hourly
-paid laboratory employees.
Accordingly, we find that the production employees of the re-
spondent paid at an hourly rate, excluding employees in the black-
smith and repair shops, or in supervisory or clerical capacities, and
subforemen, constitute a unit appropriate for the purposes of col-
lective bargaining and that said unit insures to the employees of
e See Matter of Southern California Gas Company and Utility Wo,kers Organizing Coln-
-mittee, Local No. 132, 10 N. L. R B. 1123.
TEXAS MINING AND SMELTING COMPANY 1167
the respondent the full benefit of their right to self -organization and
to collective bargaining and otherwise effectuates the policies of the
Act.
2. Representation by the Union of the majority in the appropriate
unit
The complaint alleges that on and prior to November 14, 1937, and
at all times thereafter, the Union had been designated as their bar-
gaining representative by a majority of the respondent's employees
in the bargaining unit therein stated to be appropriate, and that on
,or about that date, the Union informed the respondent of its desig-
nation by such majority and attempted to bargain with it. A list
of all the hourly paid production employees on the respondent's pay
roll for the period of November 9 to 16, 1937, in evidence, contains
the names of 234 employees, 3 of whom have been identified as
blacksmith-shop workers, 3 as repair-shop workers, and 8 as labora-
tory workers and subforemen. No definite identification was made
in the record as to how many of the 8 laboratory workers and sub-
foremen are employed in each capacity. Consequently, the number
of employees within the unit which we have found to be appropriate
was, during the pay-roll period under consideration, between 220
and 228.
The Union introduced 180 signed and dated authorization cards in
evidence. The committee appointed to check the cards found that
signatures on 135 cards corresponded with the signatures of 135
employees on the respondent's pay roll. Four employees identified as
their own signatures which the committee had rejected, thus increas-
ing the number of authenticated authorizations to 139. The cards
bear dates ranging from July 14 to November 17, 1937; 152 of them
are dated prior to November 14, 1937. It appears that the dates on
some of the cards were inserted after the dates upon which they
were signed. However, Cruz, the secretary of the Union, testified
that all of the 135 signed cards approved by the committee were
in his possession on November 14, 1937, and thereafter, until he
turned them over to Pena, local business agent of the Union, on
November 20, 1937. Pena testified, also, that the signed cards were
given to him by Cruz. In the light of this evidence, we find that on
or before November 14, 1937, a majority of respondent's'employees in
the appropriate unit had signed cards authorizing the Union to
represent them.
The respondent contends that the Union's membership was obtained
by means of duress, threats, and intimidation, and that its showing
of a majority is further invalidated by the fact that in most in-
stances the application cards, printed in English, were not explained
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the employees, the majority of whom were unfamiliar with the
English language and consequently were unaware of what they were
signing. In support of this contention, it adverts to false claims
and promises allegedly made by the Union in its efforts to obtain
members, and to the testimony of Pena that he explained only four or
five cards to prospective members. No sufficient evidence was offered,
however, of the presence of such intimidation. or fraud as would
destroy the free will of the respondent's employees in applying for
membership. Nor-does Pena's testimony that he explained only four
or five cards support the inference that the respondent's employees
were unaware that they were applying for membership in a labor
organization. Gallegos, president of the Union, testified that he had
instructed the signers himself; that the cards were interpreted to,
them by Pena; and that within his own personal knowledge the cards
had been explained to each applicant. Gallegos did not testify that
Pena was the only one who explained the cards, and consequently
Pena's testimony that he explained only four or five of the cards is
not a contradictory statement. By signing the applications for
membership, the respondent's employees designated the Union as their
collective bargaining representative.
Between November 27 and December 8, 1937, the Association came
into existence, under circumstances which we shall describe, and a
majority of the respondent's employees purported to repudiate repre-
sentation by the Union and to authorize the Association Committee
to act as their bargaining representative. We have hereinafter found,
however, that the defection from membership in the Union was the
direct and calculated result of the respondent's unfair labor practice.
Under similar findings, we have consistently held that to give effect
to adherence to an organization created and administered under the
domination of an employer would permit an evasion of the obligation
of Section 8 (5) of the Act by the simple expedient of violating
Section 8 (2).3 We will not, therefore, recognize the actions of the
employees in purporting to designate the company-dominated Asso-
ciation and to repudiate the Union, as valid defections from the
Union.
We find that on November 14, 1937, the Union had been designated
by a majority of the employees in the appropriate unit as their agent
for the purposes of collective bargaining, and that it was, on that
date and thereafter, the exclusive representative of all employees in
such unit for the purposes of collective bargaining.
8 See Matter of Bradford Dyeing Association (U. S. A.) (a Co) poration ) and Textile
Woi 1 er's Organizing Committee of the C 1. 0 , 4 N. L R B . 604 ; Matter of Harter Cor-
poration and International Assn of Machinists, 8 N. L. R . B 391; and Matter of Inland
Steel Company and Steel Workers Organizing Committee and Amalgamated Association of
Iron, Steel, and Tin Workers of North America, Lodge Nos . 64, 1010, and 1101, & N L. R. B.
783.
TEXAS MINING AND SMELTING COMPANY 1169
3. The refusal to bargain
The Union commenced organizing in August 1937, and on Novem-
ber 14, in a letter signed by Jose Gallegos, president, and Isidro
Cruz, secretary, requested recognition from the respondent as the
exclusive bargaining agent for its employees. On November 16, 1937,
the respondent replied to this request, stating that in its opinion a
majority of its employees were not members of the Union, and re-
questioning, among other things, proof of the existence of the Union,
a definite showing of majority membership, and evidence of the citi-
zenship and legal residence in the United States of all officers of the
Union. On November 17, 1937, the Union responded in a letter,
signed as before by its president and secretary, which submitted in
general the information requested, and stated that the union records
were open for inspection by any designated representative of the
National Labor Relations Board. On November 19, 1937, the re-
spondent advised the Union by letter as to what evidence it believed
would "warrant any conversations with representatives of the
Union," and stated therein its opinion that, "The record of the C. I. O.
and preceding radical unions is, wholly that of attempting to take
jobs away from aliens through frequently imposing on them against
their personal advantage." The following day, Cruz was discharged
by the respondent.
On November 24, 1937, in a letter signed by Cruz, as secretary,
and, by Nathan Kleban, C. I. O. field representative, the Union ex-
pressed its willingness to submit the evidence requested by the
respondent, suggesting that an impartial citizen of Laredo, or the
respondent itself, check the union membership cards and signatures
against the respondent's pay roll, and stated that if neither proce-
dure met with the respondent's approval, the customary procedure
would be, to ask the Board to conduct an election. It also informed
the respondent that the president of w union was empowered to rep-
resent it without special authorization, and that the Union would
be willing to submit the minutes authorizing representatives of the
Union to act as negotiators in its behalf.
On November 27, 1937, the respondent answered the Union's letter
of November 24, addressing its reply to Gallegos, as president of the
Union, and stating that Cruz had been discharged for cause, that
Kleban was not an employee of the respondent or a resident of the
community, and that, in the absence of proof of a union majority,
the respondent would prefer not to discuss union matters addressed
to it by persons who had been discharged or were not in its employ.
Thus negotiations between the Union and the respondent relative to
recognition terminated.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the Union's efforts to obtain recognition, the re-
spondent contends in its brief that the Union was derelict in its
duty, inasmuch as the correspondence outlined above constituted the
"only" efforts made, and emphasizes the difficulty and complexity of
its endeavors to ascertain who was the authorized representative of
the Union. In presenting this contention, the .respondent overlooks
the fact that it was informed that the president of the Union was
empowered to represent it without special authorization, and that
the Union would be willing to submit the minutes as proof of the
authorization of its chosen negotiators. The Union could offer little
more to alleviate the doubts of the respondent; its proposals were
apparently fair, practicable, and not unduly burdensome methods of
substantiating its claims. The ascertainment of the representative
status of the Union needed but the respondent's acceptance of the
proffer made by the Union. In the circumstances herein set forth,
the respondent's duty to bargain collectively included the duty to
cooperate with the Union to a reasonable extent in an inquiry as to
that organization's claim to have been designated as the exclusive
bargaining representative. However, the respondent not only failed
to show any inclination to cooperate by an acceptance of the Union's
offer of proof, but instead responded with a flat refusal to negotiate
with an officer of the Union whom it had discharged, or with anyone
not in its employ and not a resident of the community. Such a
refusal raised no question as to the authority of Cruz and Kleban
to represent the Union, and consequently belies the sincerity of the
respondent in its assertion that it never objected to negotiating with
any authorized representative of the Union. We are convinced that
the respondent did not attempt to carry out its duty to cooperate in
determining who represented its employees, but sought only to ob-
struct the Union's efforts to bargain. The respondent's alleged
ignorance of the Union's status was due to its own dilatory tactics,
and affords no justification of its failure to recognize and bargain
with the Union as the exclusive representative of its employees.
Although not admitting its refusal to bargain, the respondent con-
tends that because of the change in affiliation of its employees who
Joined the Association it was under no duty to bargain with any
other organization than the Association. As previously stated, how-
ever, the majority membership in the Union was dissipated as a
result of the respondent's unfair labor practices. To refrain, under
these circumstances, from ordering the respondent to bargain col-
lectively with the Union would be to approve the destruction by the
respondent of the freely expressed will of the majority of its
employees.
TEXAS MINING AND SMELTING COMPANY 1171
We find that, on and after November 27, 1937, the respondent
refused to bargain collectively with respresentatives of a majority of
its employees within an appropriate unit, and thereby interfered.
with, restrained, and coerced its employees in the exercise of rights,
guaranteed in Section 7 of the Act.
B. The alleged discriminatory shut-down
On November 23, 1937, 3 days after the discharge of Cruz, and_
during its correspondence with the Union in regard to bargaining,
the respondent partially closed its plant, allegedly because of eco-
nomic necessity. During the shut-down period, which terminated on
December 13, 1937, the respondent retained approximately 160 men
.on its pay roll, although only 40 to 60 men were employed at any
one time. The record fails to show that there was any discrimina-
tion by the respondent against members of the Union in alloting
work to its employees during this period. At the hearing, the re-
spondent introduced financial data which shows that during the last
4 months of 1937 the respondent's cash balance and sales dropped.
more than two-thirds, while the inventories almost doubled in ton-
nage. Despite the fact that the closing of the plant was suspiciously-
coincident with the respondent's exhibition of hostility toward and
reluctance to bargain with the Union, and with its discharge of the
union secretary, the evidence is insufficient to support a finding that
the shut-down was occasioned by a desire to discriminate against,
members of the Union.
Accordingly, we shall dismiss that portion of the complaint which,
alleges that the respondent, by closing its plant, discriminated in,
regard to hire and tenure of employment, thereby discouraging
membership in a labor organization.
C. The discharges
Isidro Cruz and Antonio Vasquez were employed as ordinary
laborers at the time of their discharge; Cruz having worked for the
respondent since 1933, and Vasquez since 1931. Both men joined
the Union in August 1937, and were active in its organization. Cruz
was elected secretary and treasurer of the Union, and Vasquez was
,made a subsecretary and collector of dues. On the morning of No-
vember 20, 1937, Cruz was engaged in a conversation with Mike
O'Hara, master mechanic at the plant, in the presence of Vasquez,,
who was working nearby. Cruz and Vasquez testified that O'Hara
told Cruz that "the C. I. O. was nothing but rebels," that they were
"shameless," and that he was going to prove to Cruz that "within
24 hours from now" Cruz would be without a job. Although O'Hara
1172 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied telling Cruz that he would be discharged within 24 hours,
he admitted having discussed the Union with Cruz. O'Hara also
admitted that he had strong anti-C. I. O. convictions, and that he
had told some of the employees the Union would not be of any help
to them. We find that O'Hara made the statements attributed to
him.
Shortly thereafter, at 10 a. in., Cruz and Vasquez were summoned
,to the office by the timekeeper, Azios, and informed of their discharge.
-Both Cruz and Vasquez testified that they were told their discharge
was "for unionism," although Azios testified that he had told them
they were discharged because they had left their work and had
molested others while working. Cruz and Vasquez then protested
to Graveling, the general manager, but were given no further ex-
planartion than that Azios had informed them of the reasons for their
,discharge.
'Shortly before their discharge, the respondent had placed a printed
notice in the pay envelopes of its employees, cautioning them not to
leave their work to discuss other matters, and stating that a violation
thereof would result in discharge. Thereafter, the respondent re-
ceived a complaint from one of its employees, Agapito Facundo, who
-reported an altercation with Cruz and Vasquez during the lunch
hour. The respondent, however, did not inform Cruz and Vasquez
,of this complaint, nor did it seek to verify Facundo's version of the
trouble. Graveling testified that the decision to discharge Cruz and
Vasquez was made principally because of this incident. Prior to
-their discharge neither Cruz nor Vasquez was warned personally by
-the respondent that a continuance of their conduct would merit
dismissal.
The respondent contends that the discharges of the two men were
justified because their activity during working hours not only im-
-paired their own efficiency but materially affected the work of other
.employees. In support of this position, the respondent points out
that a number of employees testified that they had seen Cruz and
Vasquez leave their work to talk to other employees concerning union
-matters. However, the evidence shows that none of these employees
`had complained that they were molested thereby nor-had they men-
tioned it to anyone until such time as they were questioned in prep-
aration for the hearing. The record not only fails to show actual im-
-pairment of efficiency, but also shows that the respondent, prior to
-their discharge was unaware in most instances of the fact that
Cruz and Vasquez had left their work to discuss union matters with
-the other employees. There is nothing in the record to indicate that
previous to the inception of negotiations between the Union and the
-respondent the work of Cruz and Vasquez had been either inefficient
TEXAS MINING AND SMELTING COMPANY 1173
or the cause of complaint. Juan Ziniga, general foreman, testified
that their work was "fair" and just about the "run of the mine."
Had the alleged inefficiency resulting from their activity been the
only reason for their discharge,discharge, we feel that Cruz and Vasquez
would have received some warning other than that contained in the
printed notice distributed generally to the respondent's employees.
This conviction is evidenced by Graveling's reply to the question
of what he would have done if Moreno had been seen engaged in
Association activity during working hours : "Well, I would have
reprimanded him first, I think." The hostility of the respondent
exhibited toward the Union and its reluctance to recognize the Union
as the collective bargaining agent of its employees points to the true
reason for the discharge. We are convinced that it was the deter-
mination of the respondent to rid itself of those leaders who were
most effective in promoting the interests of the Union. It is espe-
cially significant that Cruz, who in his official capacity signed all
correspondence between the respondent and the Union relative to
its recognition as the bargaining agent, should be discharged at a
time when it so conveniently served the purpose of affording the
respondent an excuse for the discontinuance of negotiations. From
all the evidence, we are satisfied that when the respondent discharged
Cruz and Vasquez for their activities at the plant, it was because
their activities there and elsewhere were devoted to union matters,
and not because they impaired their efficiency or that of their fellow
employees.
When discharged, Cruz and Vasquez were earning 22 cents an
hour. Since that time, Vasquez has been employed by the Works
Progress Administration, receiving $13.25 for 53 hours work. Cruz
has earned $1.90 since leaving the respondent's employ.
We find that Isidro Cruz and Antonio Vasquez were discharged
because of their membership in and activities in behalf of the Union,
and that by their discharge the respondent has discriminated in
regard to hire and tenure of employment, thereby discouraging mem-
bership in a labor organization and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
D. Origin and history of the Association
On November 26, 1937, the day preceding the respondent's refusal
to bargain with the Union, there appeared in the South Texas
Citizen, a local newspaper published in Laredo, under the caption
"C. I. O. MAY DESTROY LOCAL INDUSTRY," a report printed
in English and in Spanish of an interview with H. P. Henderson,
the respondent's president. In it, Henderson, in response to a ques-
187930-39-vol 13--75
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion concerning his attitude toward the C. I. 0., is quoted as saying :
"We believe that our employees know that their best chance for
steady work at good pay will come from relying on us, rather than
by working against us with strangers from a distance who without
knowing anything of the antimony business make big promises;
which no one could honestly make without knowing the particulars
of the business and which no one knowing the antimony business
could make honestly." At the hearing, Henderson admitted having
authorized publication of the interview and admitted the accuracy
of the report, stating that proofs thereof had been submitted to him
before publication.
The same issue of the South Texas Citizen printed an article by
the president of the local Chamber of Commerce, of which the re-
spondent is a member, condemning allegedly lawless tactics of the
C. I. 0., and a full-page advertisement, purportedly sponsored by "a
group of patriotic, civic-minded firms and individuals," warning the
C. I. O. to "KEEP OUT" of Laredo.
On the following day, in the atmosphere created by the publica-
tion of the foregoing interview, article, and advertisement, the Asso-
ciation came into being.
At the request of Rafael Moreno and several other employees of
the respondent, Kazen, an attorney, prepared a petition bearing the
caption "Free Employees Association," and stating that the signers
thereof authorized an unnamed committee of four to represent them
as sole collective bargaining agents, and that they repudiated any
such representation by the Union. The petition was then circulated
throughout the plant, and, by December 8, 1937, 176 signatures were
secured. Several witnesses testified that the petition was circulated
during working hours by Moreno who threatened them with loss of
work if they did not sign. The only testimony contrary thereto was
by witnesses who stated that they personally had not seen such
solicitation. In the light of all the testimony adduced, we conclude
that Moreno did circulate the Association petition upon the respond-
ent's time and property. The names of the four representatives on
the Association committee were not inserted in the petition until
December 8, 1937, after the signatures had been affixed thereto. On
that day at an informal meeting of short duration held just outside
the plant, a group of employees who had signed the petition. by a
show of hands elected Rafael Moreno, G. J. Shreeve, Natividad
Castro, and Fermin Trevino as members of the committee which the
petition stated would represent them. The petition was thereupon
presented to the respondent.
On December 9, 1937, immediately following receipt of the Asso-
ciation petition, the respondent by letter informed both the Union and
TEXAS MINING AND SMELTING COMPANY 1175
the Association committee of its intention to hold an election to
determine whether or not it should recognize the Association as the
collective bargaining agent of its employees. In its letter to the
Association Committee the respondent suggested that the committee
"arrange an election" on December 11, 1937, but did not inform the
Union of the election date until the following day. The election was
held as scheduled in the gate house of the respondent's plant under
the supervision of Judge Penn of the local County Court, the assist-
ant district attorney, and several deputy sheriffs. The Union refused
to participate officially, and distributed handbills to the employees
urging them not to vote. The Association Committee received a
majority of the 164 votes cast and was immediately recognized by the
respondent as the collective bargaining agent for the employees.
On December 13, 1937, at the request of the Association, the respond-
ent resumed full-time operations and equalized wages in similar
types of work at the different furnaces. Thereafter, no further
attempts to bargain for the respondent's employees was made by the
Association.
E. Conclusions regarding the Association
We have shown that the respondent, by discharging union officials
and, by refusing to bargain collectively with the Union, interfered _
with the right of its employees to organize into and bargain through
the Union. We find that the authorized publication of Henderson's
interview during the negotiations for recognition had the purpose
and the necessary effect of further demoralizing adherence to the
Union. The respondent's desire to develop anti-C. I. O. sentiment
among its employees and in the community was shared by an articu-
late section of the local business interests, as is evidenced by the pub-
lication, simultaneously with Henderson's interview, of the article
and the advertisement above referred to, expressing hostility toward
the C. I. O.
Under the pressure of the respondent's unfair labor practices, and
in the atmosphere of hostility toward the Union to which the res-
pondent contributed, the employees abandoned the Union and joined
the Association.
We are of the opinion that the Association came into existence as
the consequence, not of independent action by the employees, but of
the respondent's unfair labor practices. Success of the respondent's
campaign against the Union entailed one of two results, each
destructive of the employees' rights; either that the organizational
efforts of the employees be crushed, or, as actually occurred, that such
efforts be diverted into channels more acceptable to the respondent.
Both consequences were reasonably within the respondent's con-
1176 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
templation when it resorted to unfair labor practices designed to
destroy the Union.
In addition to providing the stimulus for the formation of the
Association, the respondent permitted the circulation of the Associa-
tion petition during working hours and on its property, gave hurried
attention to the claim of the Association that it represented a major-
ity, and proceeded to arrange for an election upon but 1 day's notice
to the Union. No question was raised by the respondent as to the
authority of the Association representatives, nor as to any other
information and evidence like that so specifically requested of the
Union. Such action was in marked contrast to the incredulity and
dilatory demands with which the respondent received the claim of
the Union that it represented a majority of the respondent's em-
ployees. Nor did the respondent, in like manner, accuse the Associa-
tion of intimidation or coercion in securing its apparent member-
ship, although nine employees testified that Moreno had threatened
them with the loss of their jobs if they did not join the Association,
in some instances on company time and property. All but two of
these employees further testified that they joined the Association
because of these threats.
That the election held by the respondent confirmed the transfer
of affiliation was to be expected in view of the surrounding circum-
stances and the short notice given the Union to prepare for it. The
respondent's selection of Judge Penn to supervise the election was
another factor which undoubtedly contributed to the success of the
Association. It was to him that Pena, local business agent for the
Union, went shortly before the election to ask for food for the unem-
ployed and their families. Judge Penn, who was head of the county
relief board, admittedly told Pena that the employees had brought
their predicament on themselves. This known attitude on the part
of Judge Penn was a factor which detracted from the fairness of the
election.
While contending that it closed the plant because of economic
necessity, the respondent admits that it was reopened at the request
of. the Association and because the men were asking for work. The
respondent was undoubtedly aware of the need of its employees for
work when it was allegedly forced to curtail its operations during the
period in which the Union was seeking recognition. We believe
that the respondent readily acceded to the request of the Association
to resume operations in the face of such economic conditions as were
alleged to exist because it desired to strengthen and support the
Association.
Upon the entire record, we find that the respondent has dominated
and interfered with the formation and administration of the Asso-
TEXAS MINING AND SMELTING COMPANY 1177
ciation and has contributed support to it; that it has thereby inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, A, C, D, and E above, occurring in connection with the opera-
tions of the respondent, described in Section I above, have a close,
intimate, and substantial relation to trade, traffic, and commerce
among the several States and with foreign countries, and tend to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed support to it. In order to effectuate the policies of the
Act and free the employees of the respondent from such domination
and interference, and the effects thereof, which constitute a con-
tinuing obstacle to the exercise by the employees of rights guaranteed
them, by the Act, we shall order the respondent to withdraw all
recognition from the Association, and to disestablish it as a repre-
sentative of the employees for the purposes of collective bargaining.
The respondent will, in addition, be required to bargain collectively
with the Union as the exclusive representative of its employees in
the unit herein found to be appropriate.
We have also found that the respondent discriminated against
Isidro Cruz and Antonio Vasquez, and shall therefore order the
respondent to reinstate them to their former positions and to make
them whole for any loss of pay they have suffered by reason of their
respective discharges by payment to each of them of a sum equal
to the amount which he normally would have earned as wages from
the date of his discharge to the date of the offer of reinstatement,
less his net earnings i during said period.
4By "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-
wheie 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 Lambei Company and United Brotherhood of Carpente , s and Joiners of Ainei-
ice, Lumber and raicnnll Woikcrs Union , Local ?;90, 8 N L R B 440 Monies received
for work performed upon Federal , State, county, municipal , or other work-relief projects
are not considered as earnings , but, as provided below in the Order, shall be deducted from
the sum due the- employee . and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal . State , county, municipal , or other government or governments
which supplied the funds for said work-relief projects
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE PETITION
In view of the findings in Section III above as to the appropriate
bargaining unit and the designation of the Union by a majority of
the respondent's employees in the appropriate bargaining unit as
their representative for the purpose of collective bargaining, it is
not necessary to consider the petition of the Union for certification
of representatives. Consequently the petition will be dismissed.
Upon the basis of the above findings of fact and upon the record
in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. International Union of Mine, Mill and Smelter Workers, Local
No. 412, and Free Employees Association are labor organizations
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Isidro Cruz and Antonio Vasquez, thereby discouraging mem-
bership in the Union, the respondent has engaged in and is engaging
in an unfair labor practice, within the meaning of Section 8 (3) of
the Act.
3. The production employees of the respondent paid at an hourly
rate, excluding employees in the blacksmith and repair shops, or in
supervisory or clerical capacities, and subforemen, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
4. International Union of Mine, Mill and Smelter Workers, Local
No. 412, was on November 14, 1937, and at all times thereafter has
been, the exclusive representative of all employees in such unit for
the purposes of collective bargaining, within the meaning of Sec-
tion 9 (a) of the Act.
5. By refusing to bargain collectively with International Union
of Mine, Mill and Smelter Workers, Local No. 412, as the exclusive
representative of all its employees in such unit, the respondent has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (5) of the Act.
6. By dominating and interfering with the formation and adminis-
tration of the Association and by contributing support to it the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (2) of the Act.
7. 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.
TEXAS MINING AND SMELTING COMPANY 1179
8. 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 findings of fact and conclusions of law and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
Texas Mining & Smelting Company, and its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union of Mine, Mill
and Smelter Workers, Local No. 412, or any other labor organization
of its employees by discriminating in regard to hire or tenure of em-
ployment or any terms or conditions of employment;
(b) Refusing to bargain collectively with the exclusive representa-
tive of its production employees paid at an hourly rate, excluding
employees in the blacksmith and repair shops, or in supervisory or
clerical capacities, and subforemen in respect to rates of pay, wages,
hours of employment, and other conditions of employment;
(c) In any manner dominating or interfering with the administra-
tion of Free Employees Association, or the formation or administra-
tion of any other labor organization of its employees, and from con-
tributing support to Free Employees Association, or any other labor
organization of its employees;
(d) 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 ac-
tivities for the purpose 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 Isidro Cruz and Antonio Vasquez immediate and full
reinstatement to their former positions, without prejudice to their
seniority and other rights and privileges;
(b) Make whole Isidro Cruz and Antonio Vasquez for any loss
of pay they have suffered by reason of their discharge, by payment
to each of them respectively of a sum of money equal to that which
he would normally have earned as wages during the period from the
date of his discharge to the date of such offer of reinstatement, less
his net earnings during said period; deducting, however, from the'
amount otherwise due to each of the said employees, monies received
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by him during said period for work performed upon Federal, State,
county, municipal, or other work-relief projects, and pay over the
amount, so deducted, to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(c) Withdraw all recognition from Free Employees Association
as a representative of any of its employees for the purposes of dealing
with the respondent concerning grievances, labor disputes, rates of
pay, wages, hours of employment, or other conditions of employment,
and completely disestablish Free Employees Association as such
representative;
(d) Upon request, bargain collectively with International Union
of Mine, Mill and Smelter Workers, Local No. 412, as the exclusive
representative of its production employees paid on an hourly rate,
excluding employees in the blacksmith and repair shops, or in super-
visory or clerical capacities, and subforemen in respect to rates of pay,
wages, hours of employment, and other conditions of employment;
(e) Post immediately in conspicuous places throughout its plant
notices to its employees stating (1) that the respondent will cease and
desist as aforesaid and (2) will take the affirmative action required
by paragraphs 2 (a), (b), (c) and (d) of this Order;
(f) Maintain such notices for a period of at least sixty (60) con-
secutive days from the date of the posting;
(g) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent, by closing its
plant, has engaged in unfair labor practices within the meaning of
Section 8 (3) of the Act, and that the petition for investigation
and certification of representatives filed by International Union of
Mine, Mill and Smelter Workers, Local No. 412, be, and it hereby is,
dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.