The Canyon Corp.

National Labor Relations Board - Board Decisions

Jul 30, 1941

33 N.L.R.B. 885 (N.L.R.B. 1941)

In the Matter of THE CANYON CORPORATION and BLACK HILLS MINE
& Mn,L WORKERS UNION, No. 22417, (A. F. OF L.)
Case No. C-1826.-Decided July 30,1941
Jurisdiction : gold mining industry.
Sale and shipment of entire product of gold bullion across state line to
U. S. Government mint, under licensing arrangement which limits sale to
Government alone, constitutes commerce.
Unfair Labor Practices
Interference, Restraint, and Coercion: surveillance ; disparagement of union ;
efforts to persuade employees that they should not have joined and should not
remain members of the union ; instigation of formation of a non-union com-
mittee to compete with union ; threat of shut-down if union activity continued ;
threats of discharge for union activity.
Publicizing of wager against union's winning Board election in order to
discourage employees from voting in favor of the union constitutes a violation
of Section 8 (1) of the Act.
Discrimination: discharge of two employees because of their union membership
and activity ; charges of negligence and insubordination without merit as
justification for discharge.
Remedial Orders: reinstatement and back pay awarded.
Practice and Procedure
Acts of interference, restraint, and coercion which occurred prior to a
settlement agreement to which Board agent was a party, considered by
Board and found to be in violation of the Act, where such acts continued after
and in violation of agreement.
Mr. Lee Loevinger, for the Board.
Hayes d Rentto, by Mr. Robert C. Hayes and Mr. Alex Rentto, of
Deadwood, S. Dak. ; and Goldwater & Flynn, by Mr. Monroe Gold-
water, of New York City, for the respondent.
Mr. Paul M. Peterson, of Salt Lake City, Utah, for the Union.,
Miss Mary E. Perkins, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges 1 duly filed by Black Hills Mine
& Mill Workers Union, No. 22417, affiliated with the American Feder-
ation of Labor, herein called the Union, the National Labor Relations
1 The original charge was filed on July 17, 1940, and amended charges were filed om
October 7 and November 23, 1940.
33 N. L. R. B., No. 163.
1 885
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, herein called the Board, by the, Regional Director for the
Eighteenth Region (Minneapolis, Minnesota) issued its complaint
dated November 23, 1940, against The Canyon Corporation, Dead-
wood, South Dakota, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations 'Act, 49 Stat.
449, herein called the Act. Copies of the complaint, accompanied by
notices of hearing, were duly served upon the respondent and upon
the Union.
With respect to the unfair labor practices, the complaint alleged in
substance: (1) that the respondent discharged Clarence Payne on or
about September 17, 1940, and discharged Ernest Pierce on or about
November 2, 1940, because they joined and assisted the Union, and
has at all time since said dates failed and refused to employ them for
the same reason; (2) that the respondent advised, urged, threatened,
and warned its employees to refrain from becoming or remaining
members of the Union, and from assisting the Union or any other
labor organization; and (3) that the respondent, by these and other
acts, has interfered with, restrained, and coerced its employees in their
exercise of the rights guaranteed in Section 7 of the Act.
On or about December 4, 1940, the respondent filed its answer deny-
ing the unfair labor practices and denying that it is engaged in inter-
state commerce within the meaning of the Act, and affirmatively al-
leging that it discharged Clarence Payne solely because of careless-
ness, inefficiency, and negligence; and that it discharged Ernest Pierce
solely because of insubordination, evasion, and refusal to perform
duties regularly assigned to him. On the same date, the respondent
filed a motion to make more specific the paragraphs of the complaint
which alleged that the respondent had engaged in unfair labor prac-
tices within the meaning of Section 8 (1) of the-Act.
Pursuant to notice, a hearing on the complaint was held at Dead-
wood, South Dakota, from December 9 to 14, 1940, before Peter F.
Ward, the Trial Examiner duly designated by the Chief Trial Exam-
iner. The Board and the respondent were represented by counsel, and
the Union by a union official. All parties participated in the hearing
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
At the hearing the Trial Examiner denied the respondent's motion to
make the complaint more specific, reserving to the respondent, how-
ever, the privilege of making a motion for adjournment upon a show-
ing that it had been surprised by any material evidence. No such
motion was thereafter made by the respondent. At the conclusion of
THE CANYON CORPORATION 887
the Board's case, and again at the close of the hearing, the respondent
moved to dismiss the complaint on the grounds (1) that the Board was
without jurisdiction over the matters involved; (2) that there had been
a settlement of certain of the unfair labor practices alleged in the
complaint; and (3) that the evidence was insufficient to support the
allegations of the complaint with respect to the unfair labor practices.
The Trial Examiner reserved decision on the respondent's motion in
so far as it rested on the ground that the Board was without jurisdic-
tion, and denied it on the remaining grounds. The motion to dismiss
for lack of jurisdiction was denied by the Trial Examiner in his Inter-
mediate Report. At the conclusion of the hearing, counsel for the
Board moved to amend the pleadings to conform to the proof, and the
motion was granted without objection. During the hearing the Trial
Examiner made rulings on other motions and on objections to the
admission of evidence. The Board has reviewed all the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are'hereby affirmed.
On February 12, 1941, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the respondent and the
Union, in which he found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
Act. The Trial Examiner recommended that the respondent cease
and desist from the unfair labor practices found, reinstate Payne and
Pierce with back pay, and take certain other action to remedy the
situation brought about by its unfair labor practices.
On March 17,1941, the respondent filed its exceptions, and on April 12,
1941, its amended exceptions, to the Intermediate Report; and on April
12, 1941, a brief in support of its exceptions. On May 15, 1941, pur-
suant to notice duly served on the respondent and the Union, a hearing
for the purpose of oral argument was held before the Board in Wash-
ington, D. C. The respondent was represented by counsel and partici-
_ pated in the hearing. - The Board has considered the respondent's
exceptions to the Intermediate Report and the brief in support of its
exceptions and, to the extent that the exceptions are inconsistent with
the findings of fact, conclusions of law, and the 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. TIIE BUSINESS OF TIIE RESPONDENT 2
The Canyon Corporation is a Delaware corporation having its prin-
cipal office and place of business at Maitland (near Deadwood ), South
2 Facts concerning the business of the respondent were stipulated by the parties.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dakota, and is engaged in mining, refining, and selling gold bullion.
It has no parent or subsidiary corporation and it is not affiliated with
any other corporation. In the operation of its mine and mill near
Deadwood, South Dakota, the respondent uses electric power, natural
gas, cyanide, dynamite, steel, machine-shop supplies, lime, and mis-
cellaneous materials. The electric power is generated in Deadwood,
South Dakota. The natural gas comes from the State of Montana by
a pipe line, passes through a metering station in Deadwood, South
Dakota, and is then transmitted through pipes to the respondent's
mine. The dynamite, cyanide, and steel come largely from outside the
State of South Dakota. The materials which are shipped to the com-
pany from outside the State of South Dakota are shipped to Dead-
wood, South Dakota, by railroad and then transported to the respond-
ent's mine, near Deadwood, by trucks owned and operated by inde-
pendent contractors hired by the respondent.
The gold bullion refined and sold by the respondent contains 90 per
cent gold, about 7 per cent silver and about 3 per cent lead, copper,
zinc, and other impurities. During the period from November 1, 1939,
to October 30, 1940, the respondent sold $419,943.25 worth of such
bullion, all of which was shipped by the respondent by railway express
from Deadwood, South Dakota, to the United States Government mint
at Denver, Colorado, and there sold to the United States.
The respondent challenges the Board's jurisdiction, contending that
it is not and was not at the time of the alleged unfair labor practices
engaged in a business substantially affecting commerce, since its busi-
ness is that of mining and refining gold bullion, which must be sold
and shipped to the United States Government, and consequently is not
an article of trade and commerce; and that the supplies and material
shipped to it from outside the State are purchased by the respondent
at its plant and are used and consumed by it there, and consequently,
while the shippers of such supplies may be, the respondent is not,
engaged in interstate commerce.
In support of its contention that the sale and shipment of gold is _
not a commercial transaction, but an administrative act of the United
States which is outside the jurisdiction of the Board, the respondent
cites, among other cases, the case of N. L. R. B. v. Idaho-Maryland
Mines Corporation.' The decision in that case is not in point here.
In the Idaho case, gold was shipped by the respondent from a point
within California to the San Francisco, California, mint; thereafter
the United States mingled it with other gold and shipped it out of
California to the Denver mint. The court held that the latter ship-
ment was not a commercial transaction, but an administrative act of
398 Fed. (2d) 129 (C. C. A. 9), setting aside the order in Matter of Idaho-Maryland
Mines Corporation and International Union of Mine, Mill and Smelter Workers of America,
Local 883, 4 N. L. R. B. 784.
THE CANYON CORPORATION . 889
the Government. In the present case, however, the respondent ships
its product from South Dakota to the United States mint at Denver,
Colorado, and while the respondent is required to sell its product to
the Government, the latter acquires no control and can apply no ad-
ministrative act over 'the gold until after it has been shipped to the
mint in interstate commerce.4
The respondent' also expends annually approximately $134,000 for
materials and supplies, of which sum approximately $64,000 is ex-
pended for materials, including natural gas, which are shipped or
otherwise transported to the respondent from outside the State. It
is clear, therefore, that a labor dispute which would shut down the
respondent's operations would directly affect the flow of interstate
commerce to the respondent's mine; and in this regard, it is im-
material whether the flow of commerce is to or from the respond-
ent,5 or whether the respondent purchases the supplies outside the
State or from the shipper at the respondent's mine .6
In addition the respondent sells about $5,400 worth of slag an-
nually which is sold and shipped by rail from the respondent's
mine to a smelting company at East Helena, Montana. The re-
spondent contends that the amount of such sale is but 1.3 per cent
in value of the total output of the respondent's mine and is there-
fore too trifling to constitute commerce within the meaning of the
Act. While it is unnecessary to determine whether such shipments
alone are sufficient to bring the respondent within the jurisdiction
of the Board, they constitute an additional interstate transaction,
which would be affected by a stoppage at the respondent's mine.
The courts have uniformly held that unless the amount is so un-
substantial as to be de minimus the proportion of interstate business
is immaterial.?
In conclusion, it is clear, and we find, that the operations of the
respondent described above affect commerce within the meaning of
4 The Idaho case was subsequently distinguished in the case of N. L. R. B. v Sunshine
Mining Company, 110 F. ( 2d) 780 (C. C. A 9), enforcing Matter of Sunshine Mining Com-
pany and International Union of Mine, Mill and Smelter Workers, 7 N. L R. B. 1252;
cert den. 312 U. S. 678. The situation presented in the Sunshine case was almost iden-
tical with that in the present case
5 Newport News Shipbuilding and Dry Dock Company v. N. L R. B, 101 F. (2d) 841
(C. C. A. 4), enforcing as modified Matter of Newport News Shipbuilding and Dry Dock
Company and Industrial Union of Marine and Shipbuilding Workers of America, 8 N. L.
R B 866.
ON L. R. B. v Sunshine Mining Company, supra.
i Southern Colorado Power Co. v. N. L. R. B., 111 F . (2d) 539 (C. C A. 10), enforcing
Matter of Southern Colorado Power Co ., a corporation , and H. H. Steward and I. L.
Watkins, individuals, 13 N. L. R. B. 699. See also N. L. If. B. v. Fainblatt et al., 306
U. S. 601, reversing 98 F. (2d) 615 (C. C. A. 3) setting aside Matter of Benjamin Fain-
blatt et al ., and International Ladies' Garment Workers' Union, Local No. 149, 1 N L R B.
864, and 4 N. L. R. B. 596; Santa Cruz Fruit Packing Company v. N. L. R B., 303 U. S.
453, affirming N. L. R. B. v. Santa Cruz Fruit Packing Company, 91 F. (2d) 790 (C. C. A.
9), enforcing as modified Matter of Santa Cruz Fruit Packing Company, a corporation,
and Weighers, Warehousemen and Cereal Workers , Local x8-44, International Longshore-
men's Association, 1 N. L. R. B. 454. -
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act, and that a labor dispute at the respondent's plant interrupt-
ing the respondent's operations would tend to hinder and obstruct
commerce and the free flow of commerce.
II. THE ORGANIZATION INVOLVED
Black Hills Mine & Mill Workers Union, No. 22417, is a labor
organization affiliated with the American Federation of Labor. It
admits to membership all employees of the respondent engaged in
mining and milling operations.
III. THE UNFAIR LABOR PRACTICES
A. Events prior to July 22, 1940; 8 interference, restraint, and
coercion
Prior' to April 15, 1940, there had been no union activity or talk
of union activity among the employees of the respondent. On or
about April 15, as a result of certain complaints made under the
Wage and Hour Act, the respondent changed from a 6-day week
to a 5-day week and added a sufficient number of employees in all
departments, except the mechanical department, to maintain the pro-
duction that had formerly been had under the 6-day week. The
wages of its employees remained at the same rate per hour, and
consequently the individual employees received less income per week
under the 5-day week than they had formerly received. Accord-
ingly, operation under the 5-day week created much dissatisfaction
among the respondent's employees.
As a result of the dissatisfaction, Ernest Pierce, an employee,
decided to undertake the organization of the Union for the purpose
of improving the working conditions and wages of the respondent's
employees. He first discussed the matter with John L. Maresh, an
employee, in April 1940, and found him willing to aid in estab-
lishing a union. Shortly thereafter, Pierce, Maresh, and two other
employees made a trip to Rapid City, South Dakota, where they
conferred with certain members of A. F. of L. unions in that city.
As a result of the trip, and at the request of the Rapid City union
organizers, Paul M. Peterson, an A. F. of L. organizer, and Albert
Maag, president of the South Dakota Federation of Labor, arrived
in Deadwood on July 6. There they called on the officials of the
Homestake Mining Company, owner of the largest gold mine in
s As set forth below a settlement agreement was executed on July 22 , 1940, by the
respondent , the Union , and the Board , which provided for withdrawal of charges there-
tofore filed by the Union upon the taking of certain action by the respondent . The re-
spondent contends that because of this agreement the Board should refrain from making
any findings as to events which occurred prior to that date. For the reasons hereinafter
set forth , the Board finds this contention to be without merit.
THE CANYON CORPORATION 891
South Dakota, whom they advised of their intention, not to attempt
organization of Homestake employees, but to organize the employees
of smaller mining companies in the territory, whose working con-
ditions were not comparable to those of the Homestake Mining Com-
pany. The manager of the Homestake Mining Company immedi-
ately telephoned L. B. Eames, vice president and general manager
of the respondent, and told him of his conversation with Peterson
and Maag.
Thereafter, Peterson talked to a number of employees of the
respondent, and discussed union organization with them. The em-
ployees most active in assisting Peterson in arranging a meeting
with the respondent's employees were Pierce, Maresh, Clarence E.
Payne, H. S. Adcock, James Dyer, and H. H. Bliss.
At the outset, Peterson met employees in his room in the Franklin
Hotel at Deadwood. The first general meeting, which a considerable
number of the respondent's employees attended, was held on July 12 in
the "sample" room in the basement of the Franklin Hotel in Dead-
wood. At that meeting a considerable number of employees, in excess
of 30, signed a statement to the effect that they were interested in
organizing a union of the respondent's employees and becoming mem-
bers thereof.
The following week, a second general meeting of the respondent's
employees was planned but when Peterson sought to procure the
hotel sample room for that purpose, he was advised by a representative
of the hotel management that the hotel could not let him have the sam-
ple room for this purpose because "the mining companies object."
The hotel representative also stated that "they [the mining companies]
also object to even permitting you to stay here, even accused us of
harboring you." Peterson then made further efforts to find a meeting
hall in Deadwood without avail.
Immediately after the Union began its organizational efforts, the
respondent entered into a vigorous campaign of opposition to the
Union. The respondent's opposition to the Union first became evident
through its supervisory employees in the mine, where the respondent
employs about 60 men. Early in July, L. H. Jeffries, mine superin-
tendent, introduced the subject of the Union in a conversation with
H. S. Adcock, a miner under his supervision, while the latter was at
work in the mine. Adcock testified that on this occasion Jeffries first
asked if he "knew of the Union," and when he replied that he did not,
stated that "some of the boys decided not to work, they're going to join
the Union." Jeffries' version of his statement was,, "I asked him
[Adcock] what the men's attitude were about the union, and told him
I'd heard there was some organizers here." Under all the circum-
stances, the Board finds, as did the Trial Examiner, that Jeffries made
the statements referred to by Adcock.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As pointed out above, the change which occurred from the 6-day to
the 5-day week was the major source of unrest at the respondent's plant
which led to the formation of the Union. Immediately after the
Union's organizing drive got under way, in July, the respondent took
steps to alleviate the unrest and to demonstrate the uselessness of the
Union.
Jeffries first discussed with Eames a proposal that a delegation of
men from the mine meet with Eames to request the reinstitution of
the 6-day week, and it was agreed that Eames would meet with such a
delegation. Jeffries testified that accordingly, sometime during the
first part of July, he approached Orlin Neely, one of the two mine
shift-bosses, and instructed him to "get a committee of employees to
go down and talk to Mr. Eames about 5 days and going on 6." Jeffries
further testified that he told Neely "that I would rather not have my
name mentioned, because I didn't want anyone, or any employee, to
think'I was trying to start something." '
Pursuant to this request, Neely at once began to gather a group of the
miners who worked under him to go to see Eames. According to
Neely's testimony, "Jeffries made the arrangements to see Mr. Eames,
and I selected the men and took them down, on Company time." Two
of the men so approached testified, and Neely freely admitted, that he
told them "he didn't like to see the Union come in, and that he thought
we could settle it and get back to six days without the Union."
Adcock testified, without contradiction, that Jeffries instructed
him to tell Norman, the other mine shift-boss, to get a delegation of
six men from his shift and go down to Mr. Eames' office and ask
for 6 days a week, and left further instructions that "if they didn't
want to ask for six days a week, not to ask for anything else." Adcock
suggested that Jeffries leave a note for Norman, but Jeffries refused,
saying, "No, I'll leave nothing in writing that could be used against
me." In view of Jeffries' other admissions on this subject we credit
Adcock's testimony. The evidence shows that Neely, too, tried to
persuade Norman to take some of his men and go to see Eames, but that
Norman "said he was neutral, he wasn't taking sides," and refused to
participate in the plan.
Shepherded by Neely, a group of six men from Neely's shift called
on Eames. Bliss, one of the miners who attended this conference,
testified that, in addition to the return to the 6-day week, the Union
also was generally discussed. According to Bliss, Eames stated he
understood that there was a union organizer in the territory, and
that some of the men in the plant had joined the Union, and "he went
on to say that if the Union came in it was his understanding that the
men would want higher wages, and if they asked for Homestake wages
it would probably be necessary to close the mine, because the Company
couldn't afford to pay such wages."
THE CANYON CORPORATION 893
Eames denied making the statement set forth above, but admitted
that he said "that whenever it got so that we couldn't run our own
business, when the control of the operations got out of our hands, it
would be time to shut down." Eames also admitted that he told the
committee that the respondent could not stand a general wage in-
crease; that he also told the same thing to Woodard, the mill superin-
tendent, to Englehart, head of the mechanical department, and to
Jeffries; that he also told these three supervisory employees and a
committee of the men that he would not" tolerate a closed shop and
(although no closed shop had been requested by the Union) "that
whenever it was necessary to sign a closed shop agreement that it
would be my successor that signed it." On the basis of all the testi-
mony it is clear that Eames did discuss his views on union matters
with the committee and that such views disclosed, and were intended
to disclose, opposition to the Union. This appears the more clearly
from the fact that Eames' intimidatory reference to the respondent's
opposition to signing a closed-shop agreement was entirely gratuitous,
since it does not appear that the Union ever made a demand upon the
respondent for a closed shop, or even discussed such an agreement.
In addition to participating in the instigation of the non-union
committee, Neely engaged in a general campaign against the Union.
Soon after the men signed up with Peterson to show their desire
for the Union, Neely approached James Sigman, a miner, while the
latter was at work, told him that two or three of Sigman's friends
had taken their names off the list, and asked Sigman if he would not
take his name off. Neely also told Bliss that it would be "a bad thing"
for a union to come into the territory, and especially into the re-
spondent's mine, for the reason that Eames was extremely opposed
to organized labor, and would rather shut the mine down than see
organized labor come in; and that if anyone joined the Union in this
territory his chances of obtaining work in any of the other mines,
particularly the Homestake, would vanish. About the 14th of July,
Neely tried to persuade Bruce Palmer, in the mine, not to join the
Union, saying among other things, "If you join the Union, as long
as you live in the Black Hills you will never get a job with another
company . . . The best thing we can do is to go the way we are."
Neely freely admitted making the above statements substantially as
testified by Sigman, Bliss, and Palmer; and stated that he thought
he had "converted" Palmer, and had told another employee so, in
Palmer's presence.
The respondent claims that it is not answerable for the foregoing
activities of Neely. This contention is without merit. Neely was
a shift-boss in the mine with important supervisory duties, including
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the power to discharge or lay off the men working under him.9 In
taking the non-union delegation to call on Eames, moreover, he was
acting under instructions from Jeffries, the mine superintendent, and
was thus carrying out the express wishes of the management. We
find, as did the Trial Examiner, that the above activities of Neely
must be attributed to the respondent.'°
We find, as did the Trial Examiner, that the respondent, by the
acts and statements of Eames, Jeffries, and Neely in instigating the
formation of the non-union committee; by, the statements of Eames to
that committee; by the statements of Jeffries to Adcock; and by the
statements of Neely to James Sigman, Bliss, and Palmer, has inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
The respondent's activities in opposition to the Union were not con-
fined to those carried on among its mine employees. When the union
organization first got under way, the superintendent of the respond-
ent's mill operations, Dedrick Woodard, was absent from the plant
on vacation. Learning, upon his return on July 17, that the Union
had been organized while he was gone, he immediately began speak-
ing against it to all the men employed in his department, making
statements derogatory to the Union, and designed to discourage mem-
bership in that organization. He testified, "Well, I believe that I in-
tended to talk to all the fellows about my attitude about it. That was
within a couple of days after I came back, because I noticed that most
of them were in an upset condition, and I wanted to give my view-
point on it, and I did talk to most of them. . . ." On direct examina-
tion, Woodard admitted having had a conversation on July 17 with
Charles Faith, an employee, during which he asked Faith if he had
joined the Union and, when advised that he had joined, stated, "Well,
Charlie, I don't see why you did that. I think we can get along all
right here without a union." Faith testified that Woodard told him
at that time that "The big shots in the Company are again (sic) the
Union, so I have to be." Woodard admitted that he had just pre-
viously talked to Eames, vice president and general manager of the
respondent, but denied that they mentioned the Union. Woodard
testified, however, that he told Faith that"I suppose if they [Eames
and other officials] are going to be against it [the Union], I'll have
9 The mine shift-bosses occupy a position of considerably greater significance than the
shift bosses in the mill . The mill shift-bosses are non-salaried employees , and as such
are eligible , and belong , to the Union . It does not appear whether the mine shift-bosses
are similarly eligible. It does appear , however, that 61 men are employed in the mine,
and are divided between only 2 shifts ; whereas only 12 or 15 men are employed in the
mill, and are divided among 3 shifts.
io International Association of Machinists, Tool and Die Makers Lodge No. 35, etc., v.
N. L. R. B ., 311 U. S. 72, affirming 110 F . ( 2d) 29 ( App. D. C. ), enforcing Matter of The
Serrick Corporation and International Union, United Automobile Workers of America,
Local No 459, 8 N L R. B. 621; rehearing denied, 311 U. S. 729.
THE CANYON CORPORATION 895
to be against it, but I don't see why I should be against it." Under
all the circumstances, we find, as did the Trial Examiner, that Wood-
ard made the statements attributed to him by Faith, and further find
that in doing so he was communicating to Faith the attitude of Eames
with respect to the Union.
Faith also testified that in the same conversation Woodard, after
questioning him as to his union membership, told him that he had
known Faith belonged, because someone who had talked to Peterson
about joining "had showed a paper with the men that intended to join
the Union, their name was on there"; and that Woodard told Faith
he knew "who was intending to join, and he knew the place they took,
like say first, second, third and fourth . -. . Woodard admitted say-
ing that he knew Faith was in the Union, and having bet that he
could name most of the men; but denied having seen a list, claiming
that his knowledge came "just from my previous experience." In the
light of all the testimony about this incident, we credit Faith' s version
of the conversation.
As stated above, Woodard testified that he held similar conversa-
tions with other employees, among them Ed Sigman. According to
Sigman, their conversation was as follows :
Q. And tell us what Mr. Woodard said to you.
A. He came down and told me that he wanted to give me his
standpoint on the Union. He said he knew that he wasn't sup-
posed to talk about it but it was a free country, that he was going
to tell me, that it didn't hurt to appeal to my better judgment. He
said that the first thing that hit him in the face when he got back
from his vacation was that his mill bunch were the most radical
bunch of the lot,11 that, he said there would be fellows sacked up,
the radicals would be sacked up and he named them.
Q. Whom did he name?
A. He named Maresh, Bliss, Pierce, Payne, Irvin Day, and my-
self. He said that he also heard that I was a radical.
Q. What does the phrase "sacked up" mean?
* * * *
A. I took it that he meant fired.
Q. All right, go head. What else was said?
A. He told me that the company couldn't support a union, that
union. I just can't recall at the time now the rest of what he did
say.
Q. Did he say anything about talking to any of the other men?
A. Yes he did.
"Woodard testified that at this time all but two or three men in the mill were union
men. All three shift-bosses in the mill are union members.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What did he say?
A. He said that he talked to all the rest of the men, and that I
was the last one.
Woodard did not categorically deny Ed Sigman's testimony, merely
stating that he could not "recall" and "I don't remember." From his
observation of both witnesses in this connection, the Trial Examiner
found that Woodard made the statements -substantially as testified to
by Ed Sigman, and the Board adopts this finding.
Peter Carlson, an employee of the respondent for about 6 years, and
a shift-boss in the mill under the supervision of Woodard, testified that
Woodard, upon returning from his vacation and learning that the mill
shift-bosses had joined the Union," said to him, "I see that you fel-
lows has mutinied on me." On direct examination Woodard admitted
that he may have used the word "mutiny," to Carlson. We find that
Woodard made the statements attributed to him by Carlson.
Woodard testified that he assured all of the employees that "as far as
I was concerned, there wouldn't be any pressure put on by me"; and
Faith testified that Woodard told him in the course of their conversa-
tion that neither Woodard nor anyone else could make him join or stay
out of the Union. The fact that, as the record shows, Woodard de-
voted from 20 minutes to half an hour of company time to attempting
to convince Faith that the men would be better off without the Union,
and another half hour similarly attempting to convince Ed Sigman;
and the fact that these were only two of many conversations in which,
according to his own testimony, he "gave his viewpoint" to most of the
men, render meaningless his protestation that no "pressure" would be
put on by him. It is clear that such a systematic attempt by their
department superintendent to persuade the mill employees against
the Union, especially during the period before enough names had been
secured to apply for a charter, was coercive in intent and effect; and
we find, as did the Trial Examiner, that thereby the respondent inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
About the 20th of July, the respondent, having adjusted the matter
of hours with the Wage-Hour Administration, resumed operations on a
6-day week basis. Sampson, a miner, testified that the day the new
wage schedule was posted Jeffries told him that "that was the wage
scale, and it was final, and nothing would change it, not even the
Union" and that "Mr. Taradash is gave Mr. Eames authority to close
the mine if Mr. Eames seen fit, if there was too much activity out there
that Mr. Eames could close the mine without telegraphing to Mr.
Taradash." Odle, another miner, testified that Jeffries made substan-
zz See footnote 9 above.
13 Taradash is president of the respondent.
THE CANYON CORPORATION 897
tially the same statements to him. Jeffries denied having said to either
of the men that the Union could not change the wage scale, or that the
mine would shut down if the Union came in. He stated that he ad-
vised the mine employees that if the then existing "conditions" con-
tinued, the mine would have to shut down. This was a stock answer
with Jeffries, which he produced several times during the hearing. He
stated on direct examination that the "conditions" he referred to were
lack of developments of new prospects. However, on cross-examina-
tion he testified that he did not go into details in explaining to the em-
ployees what he meant by "conditions," stating that "It would be pretty
hard to go into details to 60 men." Upon the entire record we find that
Jeffries made the statements attributed to him by Sampson and Odle
substantially as testified by them; and that if at any time Jeffries did
employ the statement to the mine employees that "if conditions con-
tinued the mine would have to shut down," the "conditions" he referred
to were the union -activities of the employees and were-so understood
by the latter. We find that the respondent, by the action of Jeffries in
stating or implying that continued union activity would cause the
respondent to shut down its mine, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
B. Events subsequent . to July 22, 194Q; interference, restraint, and
coercion
On July 17, 1940, as a result of The activities of the respondent
set forth above, the Union filed with the Board charges that the re-
spondent was engaged in unfair labor practices. Thereafter, on
July 22, 1940, the respondent, the Union, and Robert J. Weiner, the
Board's Regional Director, entered into an agreement for the purpose
of settling the charges, by which the respondent agreed not to in-
I erfere with the right of the employees to join or assist the Union or
any other labor organization, agreed not to discriminate against any
employee because of union membership or activity, and further
agreed to post notices to that effect for 60 days. The agreement fur-
ther stated that in consideration, and after the performance, of the
above acts by the respondent, the Union would withdraw the charges
theretofore filed, and the Regional Director would permit such
withdrawal.
The respondent contends that, in view of this agreement, the Board
should not consider the alleged unfair labor practices occurring prior
-,hereto. It is the established policy of the Board in situations of
this kind to refrain from giving consideration to events prior to
the date of an agreement to which its agents are a party, unless there
has been a continuation of the unfair labor practices or a breach of
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the agreement .14 It is to be pointed out that the Regional Director's
undertaking, to permit withdrawal of charges, was in this case ex-
pressly conditioned upon the respondent' s ceasing to engage in the
unfair labor practices.
Whether or not the respondent engaged in conduct subsequent to
July 22 which shows a continuity with its conduct and attitude prior
to that date depends upon an examination of subsequent events. As
set forth below such an examination indicates that the respondent,
through Eames, Jeffries, Woodard, and other supervisory employees,
continued unabated its campaign against the Union.
Pursuant to the settlement agreement the respondent posted at
its plant the notices agreed upon; and Eames instructed Jeffries and
Woodard that they were not to discuss the Union. On July 22,
1940, the respondent and the Union entered into a further agreement,
not included in the settlement agreement , providing for the holding
of a consent election among the employees of the respondent for the
purpose of determining their representative for collective bargain-
ing with the respondent. It was agreed that such electron should
be held on August 5, 1940, under the supervision of the Board's
Regional Director.
Meanwhile, Peterson's efforts, mentioned above, to find a meeting
hall for organizational meetings of the Union, met with no success.
Finally about July 23, he took the matter up with the Mayor of
Deadwood, and was told by the latter "that although he had been
advised not to let me have the City Hall, that I could have it if and
when it was available, and [he] explained to me that it would not
be available for at least 3 weeks." The Mayor told Peterson that
local sentiment was against union organization and that the small
mining companies could hot pay higher wages or improve working
14 See Matter of Hope Webbing Company and Textile Workers Organizing Committee,
C. I. 0., Local No. 14, 14 N. L. R. B. 55, in which the Board said :
Although vse do not agree in, the contention that the Board is thereby estopped
from pioceeding with charges of domination of and interfeience with the N. F. W. U.,
we believe that effective administration of the Act requires that the Board 's agents
have the respect and confidence of labor organizations, employers , and agents of
other branches of the government with whom their work brings them in contact. In
our opinion the policies of the Act will best be effectuated by giving effect to the
election agreement and the certification which were pai ticipated in by agents of the
Board and by agents of the State Department of Labor and the United States Con-
ciliation Service We shall, therefore, refrain from consideration of events prior to
June 28 as a basis for sustaining the allegations of the complaint with respect to
the respondent 's domination of and interference with the N. F. W. U. and for ordering
its disestablishment as a representative of the respondent' s employees , unless after
June 28 the respondent engaged in conduct which sho is a continuity with its
conduct and attitude prior to June 28.
See also Matter of Tulsa Boiler and Machinery Company and Steel Workers Organizing
Committee, 23 N. L. R. B. 846 , Matter of Hawk & Buck Company, Inc . and United Garment
Workers of America, Local No. 229, 25 N. L R. B 837; and Matter of Dain Manufacturing
Company and Deere & Company and Fm-ni Equipment Workers Organizing Committee,
United Farm Equipment Workers of America, Local 117, C. 1. 0., 25 N. L. R B. 821.
THE CANYON CORPORATION 899
conditions to a point that would be satisfactory to a union organiza-
tion. Peterson thereafter complained to the A. F. of L. national
headquarters that the miners were being denied freedom of assembly,
and was at length advised by the Mayor on July 25 that he might
use the City Hall for a union meeting.
The meeting was held on July 29 in the City Hall, which is situ-
ated across the street from the Elks Lodge. On the night of the
meeting Thomas Roberts, who is the chief of Eames' two office assist-
ants,',' sat in the window of the Elks Lodge in full view of those
attending the meeting, and watched the employees enter the City
Hall. Roberts was not called as a witness to explain his action.
Eames testified that he did not send Roberts to spy on the meeting.
However, Roberts did watch the employees enter the hall and there-
after informed Eames that he had done so, as particularly appears
from the testimony of Eames on direct examination, which is in part
as follows :
Q. You know, do you, that Mr. Roberts happened to be sitting
in the front window of the Elks Lodge one evening when they
(the Union) had a meeting at the City Hall?
A. I heard all about it.
Q. Who told you about it?
A. Well, I think he did himself.
In view of the respondent's known hostility to the Union and
Roberts' position as a highly confidential employee, his action in thus
displaying himself to employees attending the meeting was an act of
intimidation for which the respondent, by its acquiescence, must be
held responsible. It is apparent, moreover, from the superior knowl-
edge of union affairs displayed by Woodard in his conversations
with Faith and Sigman described above, and by Jeffries in his pre-
diction of the election results, referred to below, that the respondent
welcomed, and made intimidatory use of, information which reached
it concerning the Union and its membership. These facts, considered
in the light of the respondent's anti-union attitude, and Roberts' fail-
ure to testify, lead us to the conclusion, and we find, that by the action
of Roberts the respondent sought to secure accurate information as
to the. strength of the Union and the identity of its adherents and
that thereby the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
Following the agreement for the election, Jeffries told Clement
Marinoni, an employee, that, he had $40 to bet that the Union would
u Roberts is chief clerk , who keeps the books, orders the ' supplies , makes up the monthly
financial reports, and supervises the timekeeping He, the timekeeper , and Eames him-
self, constitute the "main office."
450122-42-vol. 33-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lose the election and authorized him to call bets with the employees
up to that amount, saying that the money would be in the office of
Tom Roberts. Jeffries did, in fact, place one bet with an employee
on the outcome of the election. Jeffries told Adcock that he made
his offer after he had checked the list of the employees before the
election and had determined that the Union would get only 33 votes.
The Union lost the election, 50 to 31, with 2 challenged ballots not
counted. The accuracy with which Jeffries forecast the result indi-
cates the extent to which the respondent kept informed of the union
affiliations of its employees.
Although it is possible to wager on the outcome of an election with-
out intending to influence its result, Jeffries' known opposition to the
Union and his previous acts of interference with the rights of the
employees under his supervision convince us, and we find, that his pur-
pose in publicizing his offer to wager on the outcome of the election
was to discourage employees from voting in favor of the Union.
The day after the election, on August 6, 1940, Peterson held an-
other meeting of the respondent's employees, at which the organiza-
tion of the Union was completed. About 27 employees attended and
paid their initiation fees and decided to apply to the American Feder-
stion of Labor for a charter for a local union. Accordingly, appli-
cation for a charter was made by Peterson on August 8. Shortly
thereafter, the charter was issued, and was installed on August 22.
Officers were elected on that date.
Jeffries continued to display hostility to the Union. On August
23, 1940, Adcock, who had just been elected president of the Union,
had a conference with Jeffries for the purpose of enlisting the latter's
aid in creating harmony between the union and the non-union men.
During the conversation, according to Adcock, Jeffries said that Eames
did not like the Union, and that "if these Union men got too radical,
causing trouble, Mr. Eames would shut the place down." James Sig-
man testified that he had a similar conversation with Jeffries in the
latter part of August in the course of which Jeffries told him "not
to get too radical, or the place would shut down." Jeffries denied
having made these statements, resorting to the same explanation which
he used concerning his conversations with Odle and Sampson, that he
had said merely that if "conditions" continued, the mine would have to
shut down. We find that Jeffries made the statements attributed to
him by Adcock and Sigman.
Adcock testified that during a conference between the grievance
committee and Eames on about September 18, 1940, the latter dis-
cussed union matters with the committee and that with reference to
Pierce, who had not at that time been discharged, Eames stated as
follows :
THE CANYON CORPORATION 901
Mr. Pierce, I would be money ahead to fire that man and send
him home for the time being, because I believe he is the man that's
promoting union activities and pushing it. I could be money
ahead by sending him home for the time being, and later the
National Labor Board would probably make me put him back
to work and reinstate him with back pay, I would still be money
ahead because I don't believe the Union will make a go of it
without Pierce.
On direct examination, Eames, on this point, testified as follows :
Q. Did you ever tell any of your employees or Mr. Peterson
that if Pierce were out the Union would fail'? "
A. That if Pierce were out the Union would fail? No, I never
heard such a statement.
Eames also denied that he made the statement that he would be money
ahead if he let Pierce go, even though he would have to pay him back
wages if reinstatement were ordered. He admitted, however, that he
did not like Pierce's activities and that a "reasonable man" might have
deduced from what he said in another conference with Peterson that
he wished to discharge Pierce. From his observation of the witnesses
in this connection, the Trial Examiner credited the testimony of
Adcock; and on the basis of the Trial Examiner's finding, and the
entire record, we find that Eames made the statements substantially
as testified to by Adcock, and that he did so for the purpose of dis-
couraging membership in the Union.
Adcock also testified that on or about August 15 he had occasion to
talk with Eames in the latter's office in connection with a 'dispute
between Adcock and Jeffries, and that Eames began to discuss unions
with him and related an experience which Eames allegedly had with
a union some years before, in which union organizers used and at-
tempted to use "strong-arm" methods with him and called him a
"scab," as a result of which he did not return to work at the mine at
which he was then working.
Irrespective of the truth or falsity of Eames' statements concerning
his personal experience with a union, his action in relating an experi-
ence discreditable to unions at a time when the Union was engaged
in a campaign to organize the respondent's employees served to empha-
size to Adcock the respondent's opposition to union organization, and
we find that it had that purpose.
Another incident occurring after the settlement clearly reveals
Eames' antagonism to the Union. On about August 20, 1940, Christie
Clemmons, master mechanic, who was known by the respondent to be
friendly towards the Union, had an altercation with John Marinoni,
a welder under Clemmons' supervision who was known to be hostile to
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, concerning the latter's work. During the argument, Mari-
noni struck Clemmons, knocking him down. Clemmons immediately
discharged Marinoni. On the following day, however, Eames told
Clemmons that he proposed to reinstate Marinoni. Eames testified
that he decided to take this action after obtaining "additional informa-
tion" about the matter from Edward Englehardt, then acting master
mechanic, and others. At the hearing, Eames in effect admitted that he
also told Clemmons at that time that "if Marinoni were on the other
side of the fence the A. F. of L. would reinstate him" and "the com-
pany has a right to do the same." Clemmons'replied that if Marinoni
was reinstated he-would quit his job. Subsequently, Marinoni was
reinstated and Clemmons left the respondent's employ, and was im-
mediately replaced by Englehardt, an employee known to be opposed
to the Union. Eames' statement to Clemmons, in substance, that he
was acting on Marinoni's behalf because he was not a union man, was
coercive in effect, and is convincing evidence that the respondent, not-
withstanding the July 22 agreement, continued to display its opposi-
tion to union activity among its employees.
There is also evidence that Woodard was not deterred by the settle-
ment from opposing the Union. Clarence Payne, who was subsequently
discharged, testified that in the latter part of August, Woodard told
him that he did not believe that the employees should "install" the
Union, and that he thought the employees could get along very well
without it. Woodard stated that he did not recall saying this, but
admitted that he "may have" made statements to employees concerning
the Union after the settlement, adding "I know that I shouldn't have
if I did." In view of,the above testimony and the entire record, we
find, as did the Trial Examiner, that Woodard made the statement
attributed to him by Payne.
Ed Sigman testified that the day after the election "Woodard came
over and put his hands up over his head and chuckled, and says `We
won.' 11 Sigman also testified that sometime in August Woodard
"came over and he told me that if he had followed his first inclination
he would have fired the shift bosses, but, he said, `That wouldn't work."'
Woodard did not deny this and we credit Sigman's testimony. The
conclusion that Woodard openly criticized the mill shift-bosses for
joining the Union, and sought to discourage them from remaining
members is supported by the testimony of Orval Banning, one of the
three mill shift-bosses, who stated that in the early part of September
Woodard told him that the "shift-bosses should have remained com-
pany men," (referring to the fact that Banning and the other shift-
bosses in the mill had joined the Union) and that Woodard further
stated that since these, shift-bosses had joined the Union the respondent
no longer trusted them.' The record shows that previously, about July
27, Woodard had taken from the mill shift-bosses the authority to
THE CANYON CORPORATION 903
discharge employees; and Woodard's statement to Carlson, mentioned
above, that the shift-bosses had "mutinied" on him, is to be recalled in
this connection. Woodard admitted telling Banning that he thought
the shift-bosses should be "company men," but denied the remainder of
the testimony. Under the circumstances, we find, as did the Trial
Examiner, that Woodard made the statements attributed to him by
Banning.
We find that, by the action of Roberts in watching the union meeting
,on the night of July 29; by the action of Jeffries in publicly betting
that the Union would lose the election, and his statements to Adcock
and James Sigman that the mill would shut down if the Union got
too "radical"; by the statements of Eames to the grievance committee,
that he would like to discharge Pierce for his union activities, and to
Clemmons, in effect, that he was acting on Marinoni's behalf because the
latter was not a union man, and his statements to Adcock discrediting
unions in general; and by the action of Woodard in displaying his
exultation over the Union's defeat in the election, his statements that
the Union should not be installed, and his efforts to persuade the shift-
bosses that they should not have joined and should not remain mem-
bers of the Union; the respondent has interfered with, restrained, and
coerced its employees in their exercise of the rights guaranteed by Sec-
tion 7 of the Act. It is clear that Eames' instructions to his superin-
tendents not to discuss the Union were violated in letter and spirit,
even by Eames himself; and the instructions accordingly cannot pro-
tect the respondent from the consequences of the acts of its agents 16
In view of the facts set forth above, and also in view of the dis-
criminatory discharges of Payne and Pierce discussed below, it is
clear, and we find, that the respondent, through Eames, Jeffries,
Woodard, and Roberts, has continued its unfair labor practices since
the settlement, and in disregard of its specific terms. Consequently,
no reason appears for the Board to refrain from finding that the
respondent engaged in unfair labor practices by its acts prior to
July 22, 1940.
10
J. H. Heinz Company v . N. L. R. B., 311 U. S 514 , affirming N. L. R. B. v H. J.
Heinz Company, 110 F. ( 2d) 843 (C. C. A 6), enforcing Matter of H. J. Heinz Company
and Canning and Pickle Workers, Local Union No. 325 , etc., 10 N. L. R B. 963 . See also
Swift & Company v. N. L. R . B., 106 F. ( 2d) 87 (C. C. A 10), enforcing as modified Matter
of Swift & Company, a corporation and Amalgamated Meat Cutters and Butcher Workmen
of North America, Local No. 641, et at., 7 N. L. R B 269; Matter of Consumers' Power
Company, a corporation and Local No. 740, United Electrical , Radio d Machine Workers
of America, 9 N. L. R . B. 701 , enforced in Consumers' Power Company v. N. L. R. B., 113
F. (2d) 38 (C. C. A. 6) ; rehearing denied October 8, 1940.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The discriminatory discharges
1. Clarence E. Payne
Clarence E. Payne was first employed by the respondent on June
4, 1935, and worked in the mechanical department for a period of
1 year. Thereafter, as a result of a broken wrist, he was unemployed
for about 7 weeks. ,He then returned to work, worked on the roaster
for some 6 months, and was transferred to the mill where he worked
on all the different machines operated in the mill. Some 4 weeks
prior to his discharge, he operated as a "shift-breaker" 17 in the mill-
ing department and was so employed at the time of his discharge'
on September 17, 1940.
Payne first heard of the attempt to organize the Union from Ernest
Pierce, who advised him that he had been in correspondence with
officers -of the American Federation of Labor in Rapid City. He
met Peterson, the A. F. of L. organizer, on Peterson's 'first trip to
Deadwood and indicated his willingness to join the Union in the
event that Peterson decided that the prospects warranted the organ-
ization of a union in that vicinity. Thereafter, Payne discussed
union organization with many of the respondent's employees both
while on the job and on the street, talking to about 25 or 30 em-
ployees. Payne joined the Union at its inception and was elected
sergeant at arms'on August 22.
Prior to his employment with the respondent, Payne had worked
for a light and power company at Deadwood and had had some
experience as an electrician. On or about August 25, Payne reported
for work on the 11 p. in. to 7 a. m. shift, referred to as the "grave-
yard shift," and found that the motor that operated regularly on
the conveyor floor had been burned out and that the preceding shift
had been working to repair a substitute motor.
Englehardt, the master mechanic, had prepared a new bearing and
had placed it in the end bell of the substitute motor, and Louis
Wibmer, the shift-boss, suggested that Payne be-permitted to as-
semble the motor after the master mechanic had made and inserted
the above-mentioned bearing. Consequently, Payne, working with
Charlie Faith, another employee, and Wibmer, assembled the motor,
placing the end bell containing the bearing on the shaft of the motor,
and attaching the extension wires necessary to operate such motor.
Wibmer and Faith each testified that before the motor was started,
Payne stated that he thought the bearing was too tight and that the
motor would not run for that reason. Wibmer testified that he
reported to Englehardt what Payne had said, whereupon both Wib-
11 A "shift-breaker" is a regular employee who fills in at various jobs for other employees
during their absences from work
THE CANYON CORPORATION 905
mer and Englehardt tried the bearing with their hands, decided it
was a little snug, but between them determined to try running the
motor notwithstanding this. Englehardt testified that he heard
Payne make the above statement but that it was made after an
attempt was made to start the motor. We credit the testimony of
Wibmer and Faith and find, as did the Trial Examiner, that Payne
warned his superior that the bearing was too tight. When the motor
was actually started, the bearing proved to be too tight and stuck,
thus stalling the motor. It was then necessary to take the bearing
off, clean and scrape it, and put it back in the end bell, after which
the motor operated without further mishap.
The day following the motor-repair incident, Englehardt reported
to Eames that he had heard a rumor that Payne had said that he knew
the bearing was too tight, but that he "didn't give a damn" as he
wanted to injure the company. Englehardt reported the same
"rumor" to Woodard and the latter testified that he; too, reported it
to Eames. -Eames testified that when he heard the rumor he made
up his mind then and there that he wanted to get tid of Payne. He
further testified that he did not make any investigation of the matter;
lie did not speak to Payne, to Faith, or to Wibmer.
It was Payne's contention and he testified that he did not have
"charge" of assembling the motor, but that he worked on the assembly
along with Faith and Shift-boss Wibmer and the master mechanic,
Englehardt. He further testified that he did not make the statement
referred to by Englehardt. Woodard testified that he had discussed
the rumor with Wibmer and Faith; that Wibmer told him merely
that he too had heard that Payne hail made such a statement; and that
Faith stated to him that he had not heard Payne say any such thing.
At the hearing, Wibmer, too, stated that he had not heard Payne
make any statement other than Payne 's warning to Wibmer that he
thought the bearing was too tight. On all the evidence, it is clear and
we find, as did the Trial Examiner, that Payne never made, the state-
ment in question, and that the "rumor" originated with Englehardt
himself.
It is equally clear that the failure of the roaster motor was not
Payne's fault. The respondent introduced a great deal of testimony
in an attempt to hold Payne responsible. From all the testimony on
the point, and in view of the fact that Payne was not employed as an
electrician but as a roaster man, and in view of the further fact that
the shift-boss and the master mechanic were both present and were
the last ones to try the bearing, we find, as did the Trial Examiner, that
Payne was not responsible for the motor's failure. In fact, Engle-
hardt, who was in charge of the operation, admitted that he could not
fix the blame on any person, since he did not know the cause of the
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It
mishap. We further find, in view of the remoteness of the incident
from his discharge, and in view of the fact that no attempt was ever
made to place the blame on Payne,prior to the hearing, that it was
not a factor affecting his discharge.
On the night of Sunday, September 15, 1940, Payne "broke shift"
for the night-shift operator of the crusher, in the milling department.
During that week, a hopper on the conveyor floor in the mill had
sprung a number of leaks, resulting in the accumulation of much ore
and "muck" upon the conveyor floor and near the motor which ran
the conveyor. This condition was aggravated by the fact that for
several days prior to September 15, the machinery operating the
crusher had not been running properly and the man in charge was
forced to devote much more time than usual to attending to its opera-
tion, and therefore gave less attention to the other machinery in the.
department. The condition of the floor was reported by Ed Sigman,
the day-shift crusherman for the preceding week, to Woodard, mill
superintendent, who in turn reported it to Englehardt, the master
mechanic; and the latter promised to have the condition remedied.
There is a dispute in the testimony as to when Sigman reported the
leaks. He testified that it was in the early part of the week of Sep-
tember 8. Woodard testified that Sigman reported it to him on Sat-
urday, September 14. Englehardt, however, testified that he had re-
ceived the information from Woodard during the middle of the week.
From all the testimony and circumstances, we are of the opinion and
find that the leaks were found and reported to Woodard in the early
part of the week of September 8.
The department in which Payne worked was divided into two floors,
each of which contained machinery, which it was his duty to keep in
operation. The evidence shows it was the practice for the crusherman
on the day shift to keep the conveyor floor clean and for the night
crusherman to keep the crusher floor clean. A "shift breaker," how-
ever, was not required to keep either floor clean unless the muck ac-
cumulated to such an extent that it interfered with the operation of the
machinery. In such case, it was his duty to do whatever cleaning was
necessary to protect the machinery from damage.
On Sunday, September•15, Englehardt assigned Griffith, a carpenter
in his department, to repair the leaky condition of the hopper. The
crusher and other machinery in connection therewith were not operated
on Sunday, and when Payne went to work on the "graveyard shift"
on Sunday at 11 p. in., the fine-ore bin contained only a small amount
of ore. Consequently Banning, his shift-boss, instructed Payne to
keep the machinery going so that a sufficient amount of ore would be
secured to keep the roaster and other parts of the refining process in
operation. For that reason and because of the difficulty with the
THE CANYON CORPORATION 907
crusher machinery, Payne was mainly occupied on the crusher floor
during the shift. He testified, however, that he noticed the unusual
amount of muck on the conveyor floor, that he asked Banning if he
should shut the crusher down to clean it up, and that Banning told
him to keep the crusher going. Banning corroborated this testimony,.
stating that he told Payne to "keep the outfit running and forget about
mucking if you can't get it done."
On Monday morning, September 16, Englehardt went to the con-
veyor floor, according to his testimony, for the purpose of inspecting
the work which he had directed Griffith to do on the preceding day.
He testified that there was a hole in the hopper from which fine ore
was pouring steadily in a stream the size of his index finger and had
flowed to such an extent that. a pile of muck had accumulated and
surrounded the motor, in quantity sufficient to endanger the machinery.
He further testified that seeing the machinery was in danger, he im-
mediately cleared the ore and muck away from the motor with his,
hands to such an extent that the motor was then safe. He further
stated that he then left the conveyor floor, and immediately met Eames,
general manager, and insisted upon Eames going with him to view
the condition of the floor in the tower room, and that Eames did so.
Eames testified that he went to the tower room at the insistence of
Englehardt, that when he arrived there he saw that the muck pile was
so high that the motor was in danger, and that Englehardt cleared the
accumulation away from the motor and the belts, and used a rag to stop
the hole in the hopper. Englehardt had informed him when they went
to the tower that Payne had been the crusherman on the night shift;
and Eames testified that he did not inquire who was operating at the
time the condition was discovered, although that shift had been in
operation for possibly an hour. He stated that from what he saw
he considered that Payne had been guilty of willful negligence in
permitting such a pile of muck to accumulate. Eames testified that
he then reported the matter to Woodard, and that Woodard later told
him that he had discussed the matter with Englehardt and that they
thought that both Payne and Griffith should be discharged. Accord-
ing to Eames, he told Woodard that he would consider the matter and
talk to him about it later. Late on the, same day, Eames reported to
Woodard that he considered that he had good grounds to discharge
Payne, but that there might be extenuating circumstances in Griffith's
case and that he should not be discharged. No attempt was made at
any time to consult Banning, who had been Payne's shift-boss on the
night shift, in an effort to learn whether Banning knew of the condition
or knew of any extenuating circumstances in Payne's case.
Payne returned to work at the usual time on Monday evening and
worked until quitting time Tuesday morning. At that time, Woodard
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approached Payne and told him that "he was going to have to let me
[Payne] go." Payne asked why he was being discharged, and Wood-
ard replied that it was because he had not cleaned the conveyor floor.
Payne replied that this reason was "a poor excuse" for the discharge,
and according to Payne, Woodard replied, "Well, that isn't all of it.
You have been pretty radical around here anyway."
Woodard testified that after Payne finished Monday's night shift on
Tuesday morning, September 17, he went to him and told him that he
was discharged for permitting such conditions and when Payne said,
in substance, that he thought that was a very poor excuse for firing
him, he told Payne that there were other reasons for the discharge;
.but he denied that he told Payne it was because he was "radical."
Under all the circumstances, we accept as true Payne's version of this
conversation.
From the foregoing and from the entire record, it affirmatively
appears that the condition of an unusual amount of muck on the con-
veyor floor had existed for the better part of a week prior to Payne's
discharge ; that this condition was called to the attention of different
shift-bosses, the mill superintendent, and the master mechanic; and
that if there was any negligence it was on the part of the master
mechanic and the carpenter, Griffith, who was sent to repair the hopper
and did not do so properly. Yet Griffith was not discharged.
It is also clear from the above facts, that Payne was under no duty
to clean the conveyor floor unless it was in such condition as to en-
danger the machinery. The record shows that Payne observed the
condition of the floor and asked his supervisor if he should clean it
up, and was in effect authorized to "forget about mucking if you can't
get it done." Payne testified that the condition of the floor did not
endanger the machinery during his shift, and there is no credible
evidence to the contrary. Not only did no damage occur during
Payne's shift, but it was not until after the following shift had been
running for some time that the respondent claims that the condition
was beginning to endanger the machinery; and as pointed out below,
the respondent's own testimony, if believed, indicates that the danger
could not have arisen during Payne's shift.
Woodard stated at the hearing that he knew Payne was a union
member, and that he also knew "he was a good union member." Wood-
ard's strong opposition to the Union, and his naming Payne and Pierce
as "radicals" to Sigman, have already been set forth. In view of these
facts, the circumstances of Payne's discharge set forth above, and the
known hostility of Eames, Englehardt, and Woodard to the Union,
we are of the opinion that the respondent seized upon the condition
of the conveyor floor as a pretext for a discharge motivated in fact
by Payne's prominence in the Union.
THE CANYON CORPORATION 909
This conclusion is further supported by the testimony of Englehardt
and Eames in connection with the condition of the muck pile. It
should be noted that Englehardt testified that when he went to the
tower room on Monday morning and first saw the condition of the
ore, it was piled up so,that "it was'just ready to roll into the opening
in the end bell" of the motor, and that he immediately cleared away
the ore, lowering it by about an inch, so that the machinery would be
in no danger. When he returned with Eames, he testified, in 10
minutes, the ore had already accumulated again about an inch, nearly
to the point where it was when he cleared it away. Eames testified
that when he first saw the motor, he considered it to be in "very grave
danger," and that Englehardt again had to scoop away ore to make
the machinery safe. Later Eames testified that, according to his best
estimate, it would have been an hour or more before the ore would have
flowed into the motor. Thus, if Englehardt is to be believed, that
the ore was just ready to flow into the motor when he first saw it and
had piled back up again only 10 minutes after he cleared it away,
it is evident that the leak had only recently developed, and that a
large part, at least, of the pile must have accumulated after Payne
went off his shift; for if the ore had been running at that rate during
Payne's shift, the motor must have been damaged long before. If,
on the other hand, Eames' testimony, that it would have taken another
hour or so for the ore to reach the opening in the motor, is to be be-
lieved, it is clear that no immediate danger to the motor could have
arisen on Payne's shift, nor, indeed, until well on into the day shift.
Englehardt himself admitted that he did not know' at what point,
between the time Griffith finished repairing the old leak and the time
that Englehardt discovered it Monday morning, the new leak devel-
oped, and could not say how long.it had been running at the rate at
which he saw it. We think that it is unnecessary to resolve the conflict
in the testimony of the respondent's. witnesses, since either testimony
leads to the conclusion that no danger to the motor could have existed
during Payne's shift. It is abundantly clear that when Eames, Engle-
hardt, and Woodard, aware of these circumstances, took the action
they did without making any effort to investigate where the real
explanation or fault lay, they were motivated, not by the desire to
punish an employee for negligence, but by the desire to get rid of
Payne because of his activities on behalf of the Union.
From the entire record, we find, as did the Trial Examiner, that the
respondent discharged Clarence E. Payne on September 17, 1940,
because of his union membership and activity, thereby discriminating
in regard to his hire and tenure of employment, discouraging mem-
bership in the Union, and interfering with, restraining and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Ernest Pierce
Ernest Pierce was employed by the respondent in February 1936.
He was assigned to the mechanical department, where he did all kinds
of repair work about the mill and mine during winter months. Dur-
ing the summer months, his main occupation was taking care of the
"tailings," a semi-liquid mixture of finely crushed rock and water,
which represents the ore in its final form after the gold has been
removed. In the beginning of his employment, the disposition of
the tailings presented a grave problem to the respondent, it being
necessary'to take entire shifts of employees from their regular work
for considerable periods of time in order to create a dam and other
obstructions to keep the tailings from flowing down stream and
spreading over the private lands below. Soon after his employment,.
Pierce was assigned to look after the tailings as a full-time job and
soon devised a unique plan for handling the tailings which proved to
be satisfactory. By this plan, he was able, by use of a shovel as his
only tool, to manipulate the tailings in such a fashion that a dam
was built of the tailings themselves, and as a result, to build up
sufficient storage space during the summer alone to last throughout
the winter. The only time that he was unable to do all of this work
by himself was during the period when the mine and mill were oper-
ated on a 5-day week from about the middle of April until about the
20th of July 1940. At that time the tailings got "ahead" of him due
to the fact that he was required to spend much of his time in the
mechanical department, and Bruce Palmer,. another employee, was
taken from the mine and assigned to assist him at different intervals.
The Pierce system of handling the tailings was so successful that
Eames showed it to other mine operators in the vicinity and, with
the assistance of Pierce, prepared for publication in a mining maga-
zine, a paper describing the plan. Eames gave Pierce full credit for
devising and putting the plan into operation, and admitted at the
hearing that a considerable sum of money was saved under this plan
as against the former system of handling the tailings.
As stated above, when the 5-day week was put into operation about
April 15, 1940, it caused such dissatisfaction among the employees
that Pierce determined to investigate prospects of establishing a union
at the plant. Accordingly, he conferred with John L. Maresh, made
a trip to Rapid City and consulted certain union men, and it was
through his efforts that the American Federation of Labor sent
Organizer Peterson to Deadwood to investigate the prospects of
organizing a union in the Deadwood territory. Pierce introduced
other employees to Peterson and talked to the respondent's employees
both on and off the job in an effort to obtain union members. In
THE CANYON CORPORATION 911
addition, after the election of August 5, 1940, Pierce continued his
efforts to enlist new recruits with increased energy.
The evidence shows that the respondent knew of Pierce's prom-
inence in the Union, and as found above, Eames told a union griev-
ance committee on September 18, 1940, that "he did not believe the
Union will make a go of it without Pierce" and that "he would be
money ahead to fire that man and send him home for the time being,
because I believe he is the man that is promoting union activities and
pushing it."
Peterson, to whom Eames made a similar statement, told -Pierce
what had occurred. Subsequently, on August 20, Englehardt, whom
Pierce knew to be opposed to the Union, became master mechanic and
Pierce, in a conversation with him, requested that he be permitted to
exchange jobs with Payne. When Englehardt asked him why he
wished to make the change, Pierce advised Englehardt that Englehardt
wanted to tell him every move he made, and that he (Pierce) feared
he would be discharged at the first opportunity. Englehardt agreed
to take the matter up with Woodard, under whose jurisdiction Payne
worked, and let Pierce know later. Later Pierce was advised that
the change -could not be made. Payne testified that at the time of
the proposed change Woodard told Payne that he was opposed to the
change, that he did not desire Pierce in his department because he
was too "radical," and that the Union was not going to tell him how
to run the men under his supervision. Woodard admitted telling
Payne on this occasion that nobody was going to run his organization
but himself ; but denied that he said Pierce was too radical. In view
of Woodard's entire testimony, we are' of the opinion, and find, that
he made the statement.
Pierce testified without contradiction, and we find, that his work
on the tailings did not require continuous shoveling, but did require
watching, and that it was his practice, with the knowledge and ap-
proval of the respondent, during warm weather to sit in the shade on
occasion until further shoveling work was required, and in cold
weather to go to the shop at frequent intervals in order to get warm.
Eames himself confirmed this testimony.
During the week preceding November 2, 1940, Englehardt gave
Pierce a number of instructions concerning the tailings dam and fin-
ally complained that Pierce was not doing his work properly. Pierce
contends to the contrary and stated that he had to complete a certain
portion of the dam on which he was then working before starting on
a portion referred to by Englehardt. After working for some time on
the tailings on November 2, Pierce, in accordance with his usual prac-
tice, returned to the shop to warm himself. Englehardt immediately
told him to return to work on the tailings. Pierce objected, where-
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon Englehardt then told Pierce that there was other work he could
do around the shop. Pierce, who had for some time been employed
exclusively on the tailings, and who felt that the request was unfair,
because Englehardt had earlier told him he would not have to work
with the mechanical crew any more, replied, according to Englehardt,
"God damn you, Ed, how much work do you think I can do?" Accord-
ing to Pierce, however, he replied, "God damn it, Ed, how much work
do you think I can do?" Englehardt then said that he was telling
Pierce for the last time to go to work on the dam.
Pierce then returned to the dam site, worked for a time, and then
went back to the shop. Englehardt testified that when he saw Pierce
coming, he called Eames and asked him to come to the shop, saying
"there was a case up there I had for him." Eames responded imme-
diately, and he and Englehardt went. into the room adjoining the
shop. They were followed by Pierce who stated that he wanted to
hear what Englehardt had to say. Englehardt gave his version of
the above incident, including the statement "God damn you, Ed, how
much work do you think I can do?" Pierce told Eames that that
was just what he had said, except that he said "God damn it, Ed,"
and not "God damn you." Eames said, in substance, that by his
own statement Pierce had been guilty of improper conduct, and
that he would not permit an employee to talk in this manner to a
supervisor, and sent Pierce to the office for his time. Pierce testified
that while his check was being prepared, Eames and he had a further
conversation in the course of which Pierce stated that if he had not
joined the Union there would have been no trouble, to which Eames
replied, "Probably not."
Eames testified, as to this, that he had not made that exact state-
ment; and that "I don't know what could have been construed into
that, but ... the idea in my mind was that if he had been the
same Ernie Pierce that he was up until this summer that we
probably wouldn't have had any trouble." Eames stated elsewhere
that he had noticed a change in attitude of the men generally after
the union activity started; and that in particular he noticed Pierce
talking to the other men on several occasions, so that they were not
working; that Pierce had always held such conversations, but that
before the Union "they were usually smaller groups." In view of all
of Eames' testimony, we think it probable, and find, that he made
the statement attributed to him by Pierce, and reflected therein his
opposition to Payne's legitimate activities on behalf of they Union.
As shown above, the testimony is in conflict concerning the exact
nature of the profanity used by Pierce on the occasion of his dis-
charge. Benjamin Geary, an employee who heard the conversation,
and who testified as a witness on behalf of the respondent, first gave
Pierce's and subsequently gave Englehardt's version of the statement.
THE CANYON CORPORATION' 913
In view of all the testimony and in the light of the finding below
that Englehardt is not a credible witness, we find that Pierce spoke
in the terms testified to by him.
It is the contention of the respondent that it discharged Pierce for
swearing at Englehardt, and that a discharge made for such a reason
does not violate the Act. We are in complete accord with the con-
tention that the respondent may discharge an employee for swearing,
and if, as a matter of fact, the respondent discharged Pierce for the
language used on November 2, 1940, the discharge does not constitute
an unfair labor practice. However, in order to determine whether
or not the reason alleged by the respondent for the discharge of
Pierce was in fact the true reason, it is necessary to consider all the
circumstances surrounding the discharge, and particularly the rela-
tion of Englehardt and Eames to it.
With respect to Pierce's use of profanity in addressing Englehardt,
the record shows that it was customary for the employees to use pro-
fane terms in addressing one another and in talking to supervisors,
and there is no showing that the respondent frowned upon the prac-
tice or regarded the use of profanity as grounds for disciplinary
action of any kind. This fact casts grave doubt upon the respond-
ent's claim that Pierce was discharged for that reason and necessi-
tates a further examination of the facts to ascertain the true reason.
As set forth above, Pierce was the most active union member
among the respondent's employees. This fact was known to the
respondent, and, as already stated, Eames had earlier indicated that
he desired to discharge Pierce because of his prominence in the
Union. When this information reached Pierce, it was but reasonable
that lie should fear that he would be discharged as soon as a pretext
presented itself. This fear was heightened when Ehglehardt, known
to be an enemy of the Union, became master mechanic, and conse-
quently Pierce's supervisor. Subsequent events proved that Pierce's
fears were justified. Englehardt began to complain about the man-
ner in which Pierce was doing his work, although Pierce himself
had originated the method of handling the work and it had proved
eminently satisfactory. Provoked by Englehardt's criticisms, Pierce
on the morning of his discharge became angry and replied in strong
terms, containing some profanity. Eames, himself a consistent
opponent of the Union, then appeared on the scene, at the request
of Englehardt, and after being informed by Englehardt of what had
happened, immediately discharged Pierce.
The conclusion that the respondent was insincere, in taking the
position that when it discharged Pierce it was interested solely in
maintaining discipline and a respectful attitude toward the super-
visors, is further borne out by the circumstances surrounding the
discharge of Clemmons, described above, when Marinoni was re-
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instated over the protest of Clemmons , after knocking the latter
down . Eames testified , in regard to that incident , that while he did
not know who, if anyone , witnessed the altercation , he had heard,
through Englehardt , that Clemmons had been at fault, and that he,
Eames, thereafter decided to reinstate Marinoni without asking
Clemmons if that were so or even telling Clemmons that he had
heard that. Regardless of who was at fault in that case , Eames'
admitted failure to make any effort to ascertain the facts, and his
statement to the effect that he took action in reinstating Marinoni
because the latter was a non-union man, make it clear that Eames'
controlling motive was his desire to oppose the Union, and not his
desire to maintain plant discipline . This in turn supports the belief
that in the Pierce case , too, maintenance of plant discipline, so far as
Eames was concerned , was secondary to his desire to discourage
membership in the Union.
The part played by Englehardt in each of these discharges is
significant. Englehardt was known to be personally hostile to the
Union, and after the Clemmons discharge , when he succeeded to
Clemmons' position as master mechanic , it was known that he stood
well in the favor of Eames. Peter Carlson, one of the mill shift-
bosses, testified that earlier in August Englehardt said to him in
substance :
What's the matter with these damn fools? Want to start a
union. A union might work somewheres but will not work here.
That Mr. Eames had told him that they couldn't stand it, that
they would have to have right kind of conditions and they
couldn't stand a union, they wasn't making enough money.
Englehardt's version of the foregoing is disclosed by his testimony,
in part, as follows :
Q. Did Mr. Eames ever tell you that if they organized a union
up there the mine would shut down?
A. He didn't say that.
Q. Did he every say anything about the mine shutting down?
A. He did, and I don 't believe that is a secret.
Q. What did he say about the mine shutting down?
A. He said before they would consent to a closed shop and
continue to drive matters to such an extent that they couldn't
operate successfully he would shut the mine down.
We find that Englehardt made the statements attributed to him
by Carlson and that in so doing he communicated to Carlson the
attitude of Eames and of himself with respect to the Union.
It is plain that Englehardt's opposition to the Union was not
confined to anti -union statements . As set forth above, it was Engle-
THE ' CANYON' CORPORATION 915
hardt who gave Eames the so-called "additional" information about
the Clemmons-Marinoni affair which resulted in the discharge of the
former, a known friend of the Union. Again, it was Englehardt
who first reported to Eames the "rumor" that Payne had said that
he knew that the motor would not run but had not informed Engle-
hardt because he wished to damage the respondent. Likewise, Engle-
hardt first "discovered" the allegedly dangerous condition of the
conveyor floor, which furnished the pretext for discharging Payne
for his union activities. Finally, it was Englehardt who engaged
in the altercation with Pierce which culminated in his discharge.
In addition, the record clearly shows that Englehardt was not a
credible witness. On direct'examination, he stated that he had been
a member of the American Federation of Labor, but later admitted
that he had never been a member of that organization. He also
testified on direct examination with respect to the exact size of the
rocks which leaked from the hopper located on the conveyor floor,
and then later admitted on cross-examination that he did not know
the size of the rocks.' Again on direct examination he testified that
the very next day after the hopper leak was first reported to him he
went up to examine it, at about "4 o'clock, after quitting time"; but
on cross-examination admitted that he never went up to look at the
hopper until the Monday when he discovered the "danger," stating
that it was not necessary to inspect it before then. These instances,
together with others of a similar nature appearing in the record,
indicate and we find, as -did the Trial Examiner, that Englehardt
was disposed to color his testimony.
In view of all the circumstances set forth above, it is plain that
the respondent considered Pierce the spearhead of the Union and
had a strong desire to discharge him for that reason once the oppor-
tunity presented itself. When this opportunity was slow in aris-
ing, the respondent through Englehardt, created an opportunity, by
provoking Pierce into using profane language by unjustifiable crit-
icism of his work. Despite the fact that such language was not
unusual, Englehardt immediately reported it to Eames, who dis-
charged Pierce. This action was in marked contrast to the respond-
ent's treatment of Marinoni, an opponent of the Union, who was
reinstated after actually striking his supervisor, a friend of the
Union. It is clear, therefore, and we find, that the incident of No-
vember 2 was not the real reason for Pierce's discharge but was
merely seized upon as a pretext for a discharge because of his union
activities.
We find, as did the Trial Examiner, that the respondent discharged
Ernest Pierce because of his union membership and activity, thereby
450122-42-vol. 33-59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discouraging membership in the Union, discriminating in regard to
his hire and tenure of employment, and interfering with, restraining,
and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act.
W. 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 restore as nearly as possible the condition that existed prior
to the unfair labor practices.
We have found that the respondent has interfered with, restrained,
and coerced its employees in their exercise of the rights guaranteed
in the Act. We shall, therefore, order the respondent to cease and
desist from such practices.
We have also found that the respondent has discriminated in
regard to the hire and tenure of employment of Clarence Payne and
Ernest Pierce because of their union membership and activity. We
shall order the respondent to offer them reinstatement to their former
or substantially equivalent positions without prejudice to their sen-
iority and other rights and privileges, and to make them whole for
any loss in earnings suffered by them as a consequence of the re-'
spondent's discrimination against them, by payment to each of
them of a sum of money equal to the amount he would normally
have earned as wages from the date of his discharge to the date of
the offer of reinstatement, less his net earnings,"' during said period.
Upon the basis of the foregoing findings of fact and the entire
record in the case, the Board makes the following :
"By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, 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 proiects
shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., decided by
United States Supreme Court , November 12, 1940.
THE CANYON CORPORATION
CONCLUSIONS OF LAW
917
1. Black Hills Mine & Mill Workers Union, No. 22417, affiliated
with the American Federation of Labor, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Clarence Payne and Ernest Pierce, thereby discouraging mem-
bership in Black Hills Mine & Mill Workers Union, No. 22417, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise' of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
hereby orders that The Canyon Corporation, of Deadwood, South
Dakota, its officers, agents, successors , and assigns shall:
1. Cease and desist from
(a) Discouraging membership in Black Hills Mine & Mill Workers
Union No. 22417, A. F. of L., or any other labor organization of its
employees, by discharging any of its employees, or in any other man-
ner discriminating in regard to their hire and tenure of employment
or any term or condition thereof;
(b) In any other manner interfering with, restraining or coercing
its employees in the exercise of their right, to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose 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) Offer to Clarence Payne and Ernest Pierce immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges;
(b) Make whole Clarence Payne and Ernest Pierce for any loss of
earnings they may have suffered by reason of the respondent's dis-
crimination against them in regard to their hire and tenure of em-
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment, by the payment to each of them of a sum of money equal to
that which he would normally have earned as wages from the date of
his discharge to -the date of offer of reinstatement, less his net earn-
ings 19 during said period;
(c) Post immediately in conspicuous places within its mill and mine,
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that
the respondent will take the affirmative action set forth in paragraphs
2 (a) and (b) of this Order; and (3) that the respondents employees
are free to remain or become members of the Black Hills Mine & Mill
Workers Union No. 22417, A. F. of L., and that the respondent will-not
discriminate against its employees because of membership or activity
in that organization;
(d) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
'B See footnote 18, supra.