United States Potash Company

National Labor Relations Board - Board Decisions

Jan 18, 1939

10 N.L.R.B. 1248 (N.L.R.B. 1939)

In the Matter of UNITED STATES POTASH COMPANY and INTER-
NATIONAL UNION OF MINE, MILL, AND SMELTER WORKERS, CARLSBAD
POTASH WORKERS UNION, LOCAL 415
Cases Nos. C-561 and C-56..-Decided January 18, 1939
Potash Mining, Milling, and Refining Industry-Interference, Restraint, aked
Coercion: expressed opposition to outside labor organizations-Company-
Dommated Union: domination of and interference with formation and adminis-
tration ; support ; meeting of employees ^alled lay employer ; employees urged
to get together for the purpose of negotiating a contract similar to that which
was being negotiated by employees in other division ; resulting organization
held to be company-dominated despite fact that employer stated at the meeting
that it had no objection to dealing with a national organization and that
under the law it was bound to deal with any organization chosen by the men ;
disestablished, as agency for collective bargaining-Contract: with company-
dominated organization; employer ordered to cease giving effect to-Discrimi-
nation: discharge of most active union employee ; charges of, dismissed, as to
earlier discharge and reinstatement of same employee-Reinstatement Ordered:
discharged employee-Back Pay: awarded ; monies received by employee for
work performed upon Federal, State, county, municipal, or other work-relief
projects to be deducted and paid over to agency which supplied funds for said
projects.
Mr. Charles A. Graham, for the Board.
Mr. G"e"orge L. Reese, Jr., and Mr. James W. Stagner, of Carlsbad,
N. Mex., and Mr. Paul Speer, of New York City, for the respondent.
Mr. J. A. Shuper, of Denver, Colo., for the Union.
Mr. William A. Watson and Mr. J. H. Edwards, of Carlsbad,
N. Mex., for the United.
Mr. S. G. Lippman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On September 20, 1937, International Union of Mine, Mill and
Smelter Workers, Carlsbad Potash Workers Union, Local 415, herein
called the Union, filed with the Regional Director for the Sixteenth
Region (Fort Worth, Texas), charges alleging that United States
Potash Company, herein called the respondent, had engaged in unfair
10 N. L. R. B., No. 111.
1248
DECISIONS AND ORDERS 1249
labor practices affecting commerce within the meaning of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On November
16, 1937, the National Labor Relations Board, herein called the Board,
acting pursuant to Article II, Section 37 (c), of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended, ordered
that the proceeding instituted in the Sixteenth Region be transferred
to and continued in the Twenty-second Region (Denver, Colorado).
On January 3, 1938, the Union filed an amended charge with the
Regional Director, for the Twenty-second Region. On February 4
and February 12, 1938, the Union filed with the same Regional Di-
rector further amended charges. On February 10, 1938, the Board,
acting pursuant to Article II, Section 37 (b), of National Labor
Relations Board Rules and Regulations-Series 1, as amended, issued
an order consolidating the cases for the purpose of hearing. On_
February 12,1938, the Board, by its Regional Director for the Twenty-
second Region, issued its complaint alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (2), and (3) and Section
2 (6) and (7) of the Act. Copies of the complaint accompanied by
notices of hearing were duly served upon the respondent, the Union,
and United-Potash Workers of Carlsbad, herein called the United, a
labor organization of the respondent's employees. In respect to the
unfair labor practices, the complaint, in substance, alleged (1) that
on or about October 16, 1937, the respondent discharged Pete Winters,
refused to reinstate him until November 14, 1937, and again discharged
him on January 21, 1938, because of his union activities and because
of his refusal to join the United; and (2) that the respondent domi-
nated and interfered with the formation and administration of the
United.
On February 19, 1938, the respondent filed its answer in which it
admitted that in the course and conduct of its business it causes sub-
stantially all the potash which it refines at its refinery in New Mex-
ico to be sold and transported in interstate commerce. It denied,
however, the commission of the unfair labor practices alleged in the
complaint.
Pursuant to notice, a hearing was held in Carlsbad, New Mexico,
on February 21, 23, 24, 25, 26, 28, and March 1, 1938, before Waldo
C. Holden, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel; the Union
and the United by their duly authorized agents. The United was per-
mitted to intervene on the issues relating to it as raised by the com-
plaint. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was af-
forded all parties:
1250 NATIONAL LABOR RELATIONS BOARD
At the close of the Board's case and at the termination of the
hearing, the respondent moved to dismiss, the complaint on the
grounds that the Board does not have jurisdiction over the respond-
ent and that there is no substantial evidence to sustain the allega-
tions contained in the charge and the complaint. The Trial Ex-
aminer denied the motions. At the close of the hearing, the Trial
Examiner granted a motion of counsel for the Board to conform the
pleadings to the proof in all formal respects. During the course of
the hearing, the Trial Examiner made various other rulings on mo-
tions and on objections to the admission of evidence. The Board
has reviewed all the rulings and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On April 23, 1938, the Trial Examiner filed his Intermediate Re-
port, finding that the respondent had engaged in and was engaging
in the unfair labor practices alleged in the complaint. He accord-
ingly recommended that the respondent cease and desist therefrom,
that it withdraw all recognition from the United, that it disaffirm its
agreement with the "Mine Workers Organization", and that it offer
reinstatement and back pay to Pete Winters.
Thereafter, the respondent and the United filed exceptions to the
Intermediate Report and to various rulings of the Trial Examiner.
Pursuant to notice duly served upon the respondent, the Union, and
the United, a hearing was held before the Board on September 20,
1938, at Washington, D. C., for the purpose of oral argument. The
respondent was represented by counsel and participated in the hear-
ing. The Union and the United did not appear. Thereafter, the
respondent submitted a brief.
The Board has reviewed the exceptions of the respondent and the
United to the Intermediate Report, and, save as consistent with the
findings, conclusions, and order hereinafter set forth, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a New Mexico corporation with executive offices
in New York City, is engaged in the mining, milling, and refining
of potash. The respondent's mine and mill, with which we are here
concerned, are located about 20 miles from Carlsbad, New Mexico,
on land leased from the Federal and State Governments. The re-
finery is located on the respondent's own property, about 16 miles
from the mine and mill.
During the year 1937, the respondent's sales of potash totaled be-
tween $4,000,000 and $5,000,000, practically all of which were shipped
DECISIONS AND ORDERS . ' 1251
to points outside the State of New Mexico. During the same year
the respondent purchased $340,000 worth of supplies and 'equipment,
$220,000 of which represented purchases from sources outside the
State of New Mexico. The respondent is one of the principal potash
producers of the United States, ranking third in output. It employs
330 employees , of whom 122 are employed in the mine and mill.
II. THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill and Smelter Workers, Carlsbad
Potash Workers Union, Local 415, is a labor organization affiliated
with the Committee for Industrial Organization, admitting to its
membership the respondent's mine and mill employees, excluding
supervisory employees.
United Potash Workers of Carlsbad, formerly known as "Mine
Workers Organization", is an independent labor organization ad-
mitting to its membership the respondent's mine and mill employees.
It is not clear from the United's constitution and bylaws whether
supervisory employees are admitted to membership.
III. THE UNFAIR LABOR PRACTICES
A. The formation of the United
Prior to July 1937, there had been no union activity af the-One
and mill of the respondent. In May 1937, representatives) Wsthd
employees at the mine and at the mill were separately ard"dk1bRMdl1b5i
Horace Albright, the respondent's vice president, wl^d^ 1413edic^9t)d
Carlsbad from New York. At these meetingsdA b igFlYto(alWif `d
grievances, expressed the respondent's willingnLsglt6)*Satf-gflAc€ic-
tively, and stated that a wage increase weiltililfiG^6`iiiici^eelol^yiatll^
respondent after the new price of pot:C*P 1S^1r1I^Ilde^r?tt1Nl^floi^#
July 1937. So far as the refinery ert^pl`o`e^^r^oon@^r-ife^tTll
meetings were followed by confereh'e ;13eYi *eeTP i'e ,rtl^eril '1$0P i1
ent's resident manager, and fill6yees^irpblir jii^^sc^ntl t1i^
production workers and -t3 e-lrsla-116) Itt clli%t1i^ ro r̂TTt a6ri pn^er
were based on a proposed contract presented to the•349bor4d"'>tt lb-
the refinery employ a&.1 bloc abxsvrba }(ocT, taagabbs a`19nurr10 -1911A
At the mine^t{ ldbnrlriill ti(T1JS1^c ^b fe^eii^ s^rbr^b fi ltt ^ ^l-'arc?
tivity developedf 11n. ^iityiTaild Air i it 7; 13ov5e lei; f1 t^t^f1W mrtef
a mine elnptoylVe; `stn,rted t`oi'tlist^^irbut jlil^^i^n aliter`attur'e)onl'tlI`efbbl
sponde^tt's'rbursses r 1 i^lt ,)t^6b^^ `the'Iiii$ieaai^d^ till9l^in^pl^i e^s^^ltd; ^dWcI
fFC31+n as kftrrOOIY'k tigust7125;idv^3Y,e ilflt TS irret%l^atedl^ ^titiFit?lb&
dressed to the president of the Internatnal U iot9n of Mine Mill- d
r r t •tont 9 T. noorr:o 'r. ^{It t 0m, " JuG e(tvi -eur 99m 9r1L;rt on
r1^itPriI, 4 e s; bmv topliP getfaot N1ts51^k s 'fit ertrto tloimit te UUnion,
pra-vi'€l' d thataat rn bT^ty 'i ftliv''I^es§`c41i'dent'S'e 'lr̀> e rl'al tgr' i ' iet^.`
tii Sit: 10 guilooui r txrbrt» 01 ,uohuoq of orli o1 9ldiaaograi 9d b1u. •v It 79i ctn r^ inn'rg
omit grri :f:ov rto ogutTlni ton blow [bill -rr aooiolgrno
1252 NATIONAL LABOR RELATIONS BOARD
During the day some 85 employees , constituting a majority of all the
employees in the mine and mill signed the petition.
On August 25, 1937 , the day that Winters circulated the union
petition , Cramer called his foremen together and presented them with
copies of a proposed contract which was being negotiated at the
refinery. The,foremen were instructed by Cramer to present these
contracts to the mine and mill employees and determine whether they
wished to adopt it, to negotiate a contract of their own, or to continue
with no agreement . The respondent stated that at this time it did
not know of the existence of the union petition. It admits, however,
that, on the afternoon of August 25, it had learned of its existence.
Later in the same day Walter Edwards, a shift boss, read the re-
finery contract to the mine employees as they were about to leave the
afternoon shift, and asked their opinion ,of it. Jack Edwards, brother
of the shift boss, replied that he was not impressed and that the em-
ployees would have a "better" contract for the respondent in a few
days. He referred to the union petition which was then in circula-
tion. When the employees reached the surface, Maxey Gordon, an
employee, told Winters what had occurred and secured the union
petition from him for the purpose of obtaining additional signatures.
Gordon succeeded that day in gaining additional signatures. The
petition was not circulated after that day.
Cramer testified that foremen reported to him that employees were
unable to understand the refinery contract and that several employees
had requested a meeting for an explanation of its provisions. He
therefore decided to call a meeting of all the employees and clarify
the respondent's offer.
On August 26, 1937, the respondent called a general meeting at its
hoist house during working hours.' At this meeting Cramer discussed
the terms of the refinery contract and announced that he desired the
employees to "get together" to form a committee for the purpose of
negotiating a similar contract , that he was authorized to offer them a
71/2-per cent increase in wages, and that the sooner they organized
the quicker they would get the raise, which would be retroactive to
August 1, 1937.
After Cramer's address, Jack Edwards told him that the employees
were contemplating the formation of a union and asked him whether
he had any objection to a national organization. Cramer replied that
under the law he was bound to deal with any agency chosen by the
men, and that if the men chose the sheriff of the county, lie would have
to deal with him. Cramer and the other supervisory employees who
i The meeting was held about 2: 30 in the afternoon The morning shift normally
ended at 3 p in , at which time the afternoon shift commenced its work At 11 p in
the afternoon shift ended its work and the "graveyard " shift began its work Thus as a
practical matter it would be impossible for the respondent to conduct a meeting of all the
employees which would not infringe on working time
DECISIONS AND ORDERS 1253
were also in attendance thereupon left the meeting. Cramer im-
mediately thereafter telephoned Pierce, the respondent's manager who
was then away on his vacation, and asked him to return to Carlsbad.
Pierce returned to Carlsbad on August 28, 1937, for the purpose of
discussing the contract with Cramer.
After Cramer left the meeting, Jack Edwards was elected chairman
and immediately announced that a vote would be taken to determine
whether or not the employees wished to affiliate with a national or-
ganization . Edwards testified that he called for such a vote because
he knew of the union petition signed by a majority of the employees.
Although many of the employees voted for a national organization,
the meeting was adjourned to give the employees an opportunity to
consider the matter more carefully because of the confusion, argument,
and uncertainty which accompanied the voting. Immediately after
the meeting Edwards reported to Cramer that the men were unde-
cided as to the course they would follow in organizing. Cramer
thereupon granted his request to hold a second meeting.
Meanwhile the employees throughout the mine and mill continued
to discuss the respondent's proposals. During the lunch hour of
August 27, 1937, approximately 30 surface employees met to determine
whether to join a national organization or form an independent union.
Following a vote which showed that a majority of these employees
favored an independent organization, a committee consisting of Wat-
son, Austin, and Thompson was appointed to formulate an agreement.
That night the committee drew up a draft agreement and presented
it the next day during the lunch hour to the miners for their approval.
Maxey Gordon, with the permission of his foreman, called the miners
together and the committee spent about half an hour beyond their
lunch period discussing the agreement with them.
A second general meeting was called by Jack Edwards on August
30, 1937, again on company time and premises. Jack Edwards pre-
sided and announced that a vote would be held to determine whether
the employees preferred an "independent agreement or other pro-
cedure." A secret ballot was held and of the 104 employees who par-
ticipated, approximately 84 voted for an independent agreement. A
committee was then appointed, consisting of "Bill" Watson, Jack
Edwards, and George Ball, to draw up an agreement and present it
to the respondent for approval.2
On September 1, 1937, a third general meeting was held on com-
pany time and premises, at which time the draft of the contract
drawn up by the committee -was approved by the employees.3 That
2 Ball was a strawboss who supervised various operations in the mine. He also sub-
stituted for the shift boss 1 day a week
The committee had considered and rejected the proposed contract foimulated by the
committee appointed by the surface employees.
147541-30-vol 10--SO
1254 NATIONAL LABOR RELATIONS BOARD
same- day, J. A. Shuper, the union organizer, conferred with Pierce
relative to the benefits of a national. organization. During the con-
versation. Watson entered the room and placed the approved agree-
ment on Pierce's desk. According to Shuper, Pierce stated that there
was no chance of organizing the employees because he controlled 80
per cent of them. Pierce denied making such a statement, and testified
that he told Shuper that he knew 80 per cent of the employees well
enough to know that they would not hurry into any proposition.
Under all the circumstances, we adopt Shuper's version of the con-
versation.
That same day Pierce went below into the mine to admonish Dick-
erson, Viitanen, Winters, Phillips, and Jack Edwards, active union
employees who, he was told, were causing unrest in the mine. Pierce,
however, succeeded only in talking to Edwards and Dickerson. Ac-
cording to Edwards, Pierce jokingly referred to William Green and
John L. Lewis and jestingly accused Edwards of causing him to ter-
minate his vacation. Dickerson testified that Pierce asked him "what
the trouble was" and "whether he would rather deal with friends of
his here at home or strangers two thousand miles away." Pierce de-
nied making such remarks to Dickerson. He admitted, however, con-
versing with him, but testified that the conversation took place about
September 7, 1937, after the agreement was negotiated. It is clear
from the testimony of Jack Edwards, however, who also conversed
with Pierce that same day, that the conversation between Dickerson
and Pierce occurred on September 1, 1937. Under all the circum-
stances we credit Dickerson's version of the conversation.
Following the approval of the proposed agreement by the em-
ployees, several bargaining conferences were held between the re-
spondent, represented by Pierce and Cramer, and the employees'
committee. On Sunday, September 5, 1937, the parties finally agreed
to a contract providing for (1) an increase in wages of 10 per cent
or 60 cents per day, whichever was higher; (2) a reduction of bus
fare; and (3) the abolition of lamp rental fees. The agreement,
which referred to the employees as the "Mine Workers Organization",
also provided for a grievance committee consisting of employer and
employee representatives.
Since some question was raised as to the committee's power to sign
the agreement, Jack Edwards called a meeting of employees on Sep-
tember 7, 1937.4 At this meeting, which was held on company time
and property, Pierce, who had told Watson that he would be in his
office if needed, was asked to appear. He explained to the assembled
* Viitanen testified that he remarked to Pierce that he did not have an opportunity to
vote on September 7, 1937, because he was on the "graveyard" shift. According to
Viitanen, Pierce disclaimed responsibility for Viitanen 's failure to attend the meeting,
stating that the respondent had offered him free bus transportation.
DECISIONS AND ORDERS 1255
employees that it was necessary for them to sign the contract indi-
vidually since their committee was not authorized to sign for them.
Thereupon, approximately 80 employees signed the agreement. Sub-
sequently other names were added to it, and at the time of the hear-
ing the agreement bore approximately 98 signatures.5 The next day,
September 8, 1937, the respondent signed the agreement.
Watson called a meeting on September 11, 1937, which, as in the
case of the other meetings, was held on company time and property,
for the purpose of forming a permanent organization. The em-
ployees who attended the meeting were requested to sign the fol-
lowing paper which had been drafted by Watson :
PREAMBLE
Let it be known that the simple purpose of this organization
is the furtherance of the working and living conditions of the
Potash Workers of Carlsbad, New Mexico. Let it further be
known that this organization is in no way connected or associated
with or dominated by any potash company or individual repre-
senting such, but is a free and independent order whose members
are employed in the Potash Industry.
PLEDGE
We, and each of us, who hereafter affix our names to this docu-
ment on September 11, 1937, or thereafter, pledge ourselves as
members in the United Potash Workers of Carlsbad, New Mexico,
to abide by the dictates of the majority.
On October 2, 1937, Pierce gave the United permission to erect its
own bulletin board on company property. On October 29, 1937, in
response to the United's request, Cramer sent a letter to the United
which announced :
Your representatives are the exclusive representatives of all
the employees in the mine unit for the purposes of collective
bargaining with respect to the matters covered by the contract
now in force between your group and the United States Potash
Company.
On November 6, 1937, a group of employees who had signed the
pledge held a meeting in Carlsbad and adopted a constitution and
bylaws. About November 15, 1937, during working hours, the United
conducted an election of officers. Balloting took place in the respond-
C After September 8, 1937, there was a notice on the bulletin board to the effect that
employees wishing to sign the agreement would find a copy of it in the respondent's
laboratory.
1256 NATIONAL LABOR RELATIONS BOARD
ent's laboratory under the supervision of two of the respondent's
laboratory employees. Shaddock, one of these employees, who is in
general charge of the laboratory, was elected secretary-treasurer.
B. Conclusions with respect to the formation of the United
It is clear from the above discussion and it is not denied, that the
United is a continuation of, and constitutes the formal organization
of, the "Mine Workers Organization" which negotiated the contract.
The mere change in name and form could not act to free the "Mine
Workers Organization" of any unlawful elements which might have
been present in its original formation and administration.6
The respondent denies that it interfered with the formation of
the United and contends that its sole purpose in circulating the re-
finery contract and calling the meeting of August 26 was to offer
the mine and mill employees the same privileges that it had extended
to the refinery employees. , It is clear from the record, however, that
the respondent's activities directly led to the formation of the United
and amounted to an unlawful interference with its employees in the
exercise of their right to self-organization.
Prior to the meeting called by the respondent on August 26 the
only organization activity at the mine and mill was confined to the
efforts of Winters and several other employees on behalf of the
Union. Immediately after the meeting, however, the idea of an un-
affiliated organization spread among the employees. Despite
Cramer's assurance that he had no objection to a "national organiza-
tion," the respondent's activities on August 26 and the following
days had the effect of persuading a majority of the employees to
disavow the petition they had signed, forsake all interest in the
Union, and turn their attention to an inside labor organization.
The respondent vigorously denies that it had knowledge of the peti-
tion which Winters circulated on August 25. It is not denied, how-
ever, that Winters had openly circulated union literature prior to
(hat day, and it is a fair assumption that the respondent was aware
of his union activity. In any event, the respondent had knowledge
of the success of Winters' efforts prior to the mass meeting of
August 26, and the record plainly shows that it was determined to
offset the Union's campaign.
According to Cramer, the meeting of August 26 was called to
explain the provisions of the contract to the employees. He could
not, however, recall the names of any employees who requested such
explanation. Nor did the respondent explain why the contract and
6 See Matter of The Electric Auto-Lite Company, Bali Manufacturing Division and
International Union, United Automobile 'Workers of America, Local 526, 7 N L R B 1179;
Matter of Sunshine Mining Company and International Union of Mine, Mill and Smeltef
Workers, 7 N. L. it. B. 1252.
DECISIONS AND ORDERS 1257
the promised increase in wages contained therein could not have been
offered to the employees directly, without the requirement that they
first "get together." Indeed, counsel for the respondent, during the
oral argument, could advance no explanation for the respondent's
refusal to grant the wage increase without further action by the
employees.
The respondent further denies that it insisted upon haste in the
adoption of a contract. Yet Cramer urged the men to act, "the
quicker the better." Furthermore, it is significant that Pierce, the
respondent's superintendent, was recalled from his vacation, without
colorable reason. The respondent was pressing its employees to or-
ganize in haste. The result was a change of the direction of organi-
zation, loss of interest in the Union, and the formation of the loose
"Mine Workers Organization," a result directly traceable to the
meeting of August 26.
"Self-organization" is the principal of the Act. The employer,
though he be impatient ' for his employees to organize, should do
nothing to further or hasten organization. If it comes slowly or if
it does not come at all, he may be disappointed, but still he should
do nothing about it.
The respondent not only precipitated the formation of the United,
but also supported its organization. As we have described above,
all the meetings of that labor organization and its predecessor were
held on company time during working hours. Witness to its favor-
itism toward the United was Pierce's conversations with Shuper and
Dickerson in which he expressed his opposition to "outside" unions.
It is further significant of the respondent's aid and support to the
United that it recognized this labor organization as the exclusive
representative of its employees even before the organization of the
United had been perfected. Thereafter, it, permitted the United
to conduct an election of officers on its premises during working hours
with the active participation of Shaddock, a supervisor.
We find that the respondent has interfered with the formation and
administration of the United and has contributed support to it. We
further find that by reason of the conduct described above, the re-
spondent has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by Section 7 of the Act.
C. The discharges of Pete Winters
Pete Winters began to work for the respondent in 1932, and since
that time satisfactorily performed all the principal tasks involved
in a mine. As appears from the previous discussion, Winters was
the most active employee in campaigning for an outside organization.
In addition, he was also vociferous in his opposition to the United
1258 NATIONAL LABOR RELATIONS BOARD
as a company-dominated organization, and he refused to sign the
contract negotiated by the "Mine Workers Organization."
Notices advocating the Committee for Industrial Organization
appeared on the bulletin board which the United had erected on the
respondent's property. On October 16, 1937, when Winters came to
work, he was told that Austin, an active United member, wished to see
him. Austin accused Winters of placing literature on the bulletin
board and demanded that he remove it. Winters, denying that he
was responsible, refused. Austin thereupon compelled Winters to
fight, despite the protest of the latter that he was "on the spot" and
did not want to fight on company property. Horne, the general fore-
man, heard the commotion, discharged Winters, and sent Austin to
his foreman, who subsequently discharged him.
Although it is clear that Winters acted defensively and was pro-
voked into fighting by Austin, there is insufficient evidence to war-
rant a finding that the respondent's discharge of Winters on October
16, 1937, was motivated by his union activities.
On October 26, 1937, Austin was reinstated through the action
of the United's grievance committee. Winters, however, experienced
difficulty in securing his reinstatement and it was only after the
United intervened in his behalf that the respondent finally rein-
stated him on November 13, 1937. After Winters' reinstatement he
again became active in advocating the cause of an affiliated labor
organization. He called meetings, distributed literature, and finally
through his efforts, Local 415, affiliated with International Union of
Mine, Mill and Smelter Workers was organized and chartered. Dur-
ing this period he was subject to solicitation on the part of United
members to join that labor organization. Winters, however, persist-
ently refused to join. He likewise refused to sign the contract which
the respondent had offered its employees through the "Mine Workers
Organization." Late in December, Winters was approached by
"Red" McFall, his shift boss, who said to him : "It looked like they're
going after you again and you better stay in line . . ." The re-
spondent did not call McFall as a witness to deny that this occurred.
On January 21, 1938, Winters was again discharged. The respond-
ent maintains that this discharge was caused by his unsatisfactory
work.
When Winters called for his check soon after his second discharge
Pierce offered him a job on the respondent's road gang where he
would be "entirely away from the men." It was the respondent's
position that Winters could do better work "outside the sphere of the
men at the mine." Winters accepted the job. The next day, how-
ever, the respondent discovered that the position merely necessitated
a few days' work a month, and recognized that this would be un-
DECISIONS AND ORDERS 1259
satisfactory -to Winters. Accordingly, the respondent withdrew this
offer and Winters was not reinstated.
After Winters' reinstatement following his first discharge, he was
employed for about a month on part-time work as a mucking-machine
operator. The respondent found no fault with his work during this
period. On December 19, 1937, a change was made in the respond-
ent's operations and Winters became a full-time helper to Maxey
Gordon who operated a mucking machine. Gordon testified that one
day in December the cable of his mucking machine broke and Win-
ters failed to assist in its repair. He reported the incident to Horne,
who thereafter watched Winters. Horne testified that he observed
Winters loafing on two or three occasions; he admitted, however,
that he never reprimanded Winters nor apprised him of Gordon's
complaint.
According to Gordon, on the morning of Winters' second dis-
charge, January 21, 1938, Winters was unable to locate "eye bolts" or
the hammer' for driving them, though they were subsequently found
for him without any difficulty. Gordon likewise reported this occur-
rence to Horne and stated, "This looks like I am going to have a' new
helper because I am getting tired ..." Winters was discharged that
afternoon by Horne.
Horne's version of the incident that -precipitated the discharge does
not support Gordon's testimony. According to Horne, Gordon com-,
plained to him on the morning of the discharge that Winters refused
to assist in placing cars on the rail. Horne denied that Gordon made
any reference to eye bolts. Pierce, on the other hand, later told Win-
ters that he was discharged because Maxey Gordon had complained
that he had refused to "shovel muck." Gordon, however, denied that
he had ever lodged such a complaint against Winters.
The reasons alleged by the respondent' for the discharge of -Winters
find little support in the confused and inconsistent testimony of the
respondent's witnesses. The respondent admitted that prior to • his
reinstatement Winters had been considered a capable worker and had
rendered satisfactory service'for approainiately 5 years. Under these
circumstances it seems reasonable that the respondent would have
warned or admonished him prior to his discharge had his work sud-
denly proved unsatisfactory. However, Winters was summarily dis-
charged without warning or admonition. -In addition, it seems un-
likely that an employee who had just been discharged for unsatisfac-
tory work would immediately thereafter be offered another job. The
respondent openly stated that its purpose in^ offering Winters other
employment was to remove him "from the sphere of the men at the
mine." It is apparent that his union activity and outspoken criticism
of the United proved obnoxious to the respondent. The record estab-
lishes no other reason for his discharge.
1260 NATIONAL LABOR RELATIONS BOARD
We find that the respondent, by its discharge of Pete Winters on
January 21, 1938, discriminated with respect to his hire and tenure
of employment, thereby discouraging membership in the Union, and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of- the respondent, set forth in Section
III above, occurring in connection with the operations of the respond-
ent 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.
THE REMEDY
We have found that the respondent has committed certain unfair
labor practices. We shall therefore order it to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act.
Inasmuch as we have found that the respondent has dominated and
interfered with the formation and administration of the United and
contributed support to it, we shall order the respondent to withdraw
all recognition from it as a bargaining agency of any of its employees
and to disestablish it as such representative. In addition, since the
contract which the respondent negotiated with "Mine Workers Organ-
ization," the United's predecessor, and which was signed by individual
employees on September 7, 1937, and thereafter, was unlawfully nego-
tiated with a company-dominated organization, we shall order the
respondent to cease and desist from giving any effect to it.
We have found that the respondent, by its discharge of Pete Winters
on January 21, 1938, discriminated in regard to his hire and tenure
of employment. We shall therefore order the respondent to offer him
reinstatement to his former or substantially equivalent position with
back pay from the date of his discharge to the date of such offer of
reinstatement, less his net earnings,? if any, during said period.
7 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B . 440. Monies
received for work performed upon Federal, State , county, municipal , or other work-relief
projects are not considered as earnings, but, as provided below in the Order, shall be
deducted from the sum due the employee , and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal , State , county , municipal , or other govern-
ment or governments which supplied the funds for said work -relief projects
DECISIONS AND ORDERS 1261
Having found that Pete Winters' discharge on October 16, 1937,
was not an unfair labor practice, we shall dismiss the complaint in that
respect.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board*makes the following:
CoNcLusIoNs of LAW
1. International Union of Mine, Mill and Smelter Workers, Carlsbad
Potash Workers Union, Local 415, and United Potash Workers of
Carlsbad, formerly known as "Mine Workers Organization," are labor
organizations, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and ad-
ministration of United Potash Workers of Carlsbad, and contribut-
ing support to it,,the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (2) of the
Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Pete Winters, thereby discouraging membership in a labor
organization, the respondent has engaged in and is engaging in un-
fair labor practices, within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act..
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. By discharging Pete Winters on October 16, 1937, the respond-
ent has'not engaged in unfair labor practices, within the meaning
of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, United States Potash Company, Carlsbad, New Mexico,
and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union of Mine,
Mill and Smelter Workers, Carlsbad Potash Workers Union, Local
415, or any other labor organization of its employees by discriminat-
ing in regard to their hire or tenure of employment or any term or
condition of employment;
1262 NATIONAL LABOR RELATIONS BOARD
(b) In any manner dominating or interfering with the adminis-
tration of United Potash Workers of Carlsbad or with the formation
or administration of any other labor organization of its employees,
and from contributing support to United Potash Workers of Carls-
bad or any other labor organization of its employees;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection;
(d) Giving effect to the contract negotiated with "Mine Workers
Organization," and signed by individual employees on September 7,
1937, and thereafter.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer Pete Winters immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to
his seniority and other rights and privileges;
(b) Make whole Pete Winters for any, loss of pay he may have
suffered by reason of his discharge by the payment to him of a sum
of money equal to that which he would normally have earned as
wages from January 21, 1938, the date of his discharge, to the date
of such offer of reinstatement, less his net earnings, if any, during
said period ; deducting, however, from the amount otherwise due,
monies received by said employee during said period for work per-
formed upon Federal, State, county, municipal,' or other work-relief
projects, and pay over the amount, so deducted, to the appropriate
fiscal agency of the Federal, State, county, municipal, or other gov-
ernment or governments which supplied the funds for said work-
relief projects;
(c) Withdraw all recognition from United Potash Workers of
Carlsbad as a representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of em-
ployment, and completely disestablish United Potash Workers of
Carlsbad as such representative;
(d) Post immediately notices to its employees in conspicuous places
throughout the mine and mill in Carlsbad, New Mexico, and main-
tain such notices for a period of at least sixty (60) consecutive days,
stating (1) that the respondent will cease and desist in the manner
provided in paragraphs 1 (a), (b), and (c) of this Order; (2) that
,the respondent withdraws and will refrain from all recognition of
United Potash Workers of Carlsbad as a representative of its em-
DECISIONS AND ORDERS 1263
ployees for the purpose of dealing with the respondent concerning
grievances, labor disputes, rates of pay, wages, hours of employment,
or other conditions of employment, and that the respondent com-
pletely disestablishes it as such representatives; and (3) that the con-
tract negotiated with "Mine Workers Organization,"' and signed by
individual employees on September 7, 1937, and thereafter, is void and
of no effect;
(e) Notify the Regional Director for the Twenty-second Region
in writing within ten (10) days from the date of this Order what
steps the respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the allegations of the complaint con-
cerning the discharge -of Pete Winters on October 16, 1937, be, and
they hereby are, dismissed.