Veta Mines, Inc.

National Labor Relations Board - Board Decisions

Oct 20, 1941

36 N.L.R.B. 288 (N.L.R.B. 1941)

In the Matter Of VETA MINES, INCORPORATED and INTERNATIONAL
UNION OF MINE, MILL AND SMELTER WORKERS
Case No. C-1904.-Decided October 20, 1941
Jurisdiction : mining industry.
Unfair Labor Practices
Discrinavnation: refusal to employ two men because of record of union member-
ship 'and activity ; charges of, dismissed as to two others.
Remedial Orders : employer ordered to offer employment with back pay to a per-
son who desires reinstatement despite the fact that he obtained other regular
and substantially equivalent employment elsewhere.
Where a person who was unlawfully refused employment subsequently
became physically incapacitated, employer ordered to offer employment or
give preferred status at any position for which he is qualified upon presen-
tation within a specified time of a certification of capacity to work signed
by a physician mutually agreed upon by employer and union or by Regional
Director if agreement otherwise impossible; back pay to run only to date
he became incapacitated and from time certification is presented to time
employed or given preferred status.
Propriety of present Board's Order, which orders employer to offer em-
ployment with back pay to certain individuals, held not affected by a Board
Order arising in another proceeding which orders another employer to offer
reinstatement and back pay to the same individuals ; however, such persons
will not be able to work for both employers at the samte time nor receive
double back pay for the same period.
Definitions : "leaser" and "partners" held to be employees where right of "leaser"
to hire "partners" was subject to approval of employer and where hours and
working conditions similar to those of other employees ; employer who in fact
refuses to allow.such "leaser" to hire "partner" becomes prospective employer
within the meaning of the Act.
Mr. Paul S. Kuelthau, for the Board.
Pershing, Bosworth, Dick & Dawson, by Mr. T. Raber Taylor, of
Denver, Colo., for the respondent.
Mr. William H. Bartley, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed April 9, 1941, by International
Union of Mine, Mill and Smelter Workers, herein called the Union,
36 N. L. R. B., No. 52.
288
VETA MINES, INCORPORATED 289
the National Labor Relations Board, herein called the Board, by
the Regional Director for the Twenty-second Region (Denver, Colo-
rado), issued its complaint dated April 9, 1941, against Veta Mines,
Incorporated, of Telluride, Colorado, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of Sec-
tion 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 notice of hearing thereon, were duly
served upon the respondent and the Union.
The complaint, as amended at the hearing, alleged in substance
that the respondent (1) refused to hire Emil Millich in December
1939, Alfonzo Roy in July 1940, and Leonard Talbot and Charles
Dosher in March 1941 because of their membership in and activities
on behalf of the Union, and (2) by these acts, and by urging, per-
suading, and warning its employees not to join the Union, and by
threatening them with discharge and other reprisals if they did so,
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Thereafter, the respondent filed its answer, dated April 21, 1941.
As amended at the hearing, the answer denied all the material allega-
tions of the complaint, except that which alleged that the respond-
ent is engaged in the business of mining and milling ore.
Pursuant to notice, a hearing was held on May 5 and 6, 1941, at
Telluride, Colorado, before James C. Paradise, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
the parties.
At the opening of the hearing counsel for the Board moved to
amend the complaint by adding an allegation concerning the alleged
discriminatory refusal to hire Talbot, and Dosher. The motion was
granted without objection. Another motion to amend the complaint in
certain minor details was also granted. The respondent's motion that
the complaint be made more definite and certain was granted in part
and denied in part, and counsel for the Board duly provided the
respondent with the specifications ordered to be furnished.' The
respondent contends in its exceptions that this ruling, in so far as it
denied the motion, was a denial of its right to prepare a defense,
The Trial Examiner granted that part of the respondent ' s motion which called for
the names of the respondent ' s officers and agents allegedly involved in the refusals to hire
Emil Millich and Alfonzo Roy and the dates on which such refusals occurred. The
remainder of the motion, which was denied, called for the exact place where the refusals
to hire took place.
433118-42-vol. 36-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since the complaint specified only that the refusals to hire Millich
and Roy took place "at the mine and mill," which covers an area of
several miles. No application was made by the respondent for an
adjournment to prepare a defense as to Millich and Roy. We think
that the respondent was given ample opportunity to prepare its de-
fense and that there is no merit in the respondent 's contention. The
Trial Examiner 's ruling is hereby affirmed . At the close of the
Board's case and at the close of the entire case the respondent moved
that the complaint be dismissed in so far as it alleged a discriminatory
refusal to hire the four men named therein. Decision on this motion
was reserved by the Trial Examiner. In the Intermediate Report
the motion was denied as to Millich and Roy, and granted as to
Talbot and Dosher. At the close of the hearing a motion by the
Board that the complaint be conformed to the proof was granted.
During the course of the hearing the Trial Examiner made rulings on
several other motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed . The rulings are hereby
affirmed. Following the close of the hearing the respondent filed
a brief.
Thereafter the Trial Examiner issued his Intermediate Report,
dated June 6, 1941 , copies of which were duly served upon the parties:
In his Intermediate Report the Trial Examiner found that the respond-
ent had engaged in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and ( 3) and Section 2 (6) and (7) of
the Act. The Trial Examiner recommended that the respondent cease
and desist from the unfair labor practices and take certain affirmative
action to effectuate the policies of the Act. He further recommended
that the complaint be dismissed as to Talbot and Dosher.
On June 16, 1941, counsel for the respondent and the Board entered
into a stipulation for the correction of certain errors in the transcript
of testimony . The Board hereby orders that the stipulation be made a
part of the record and that the transcript be corrected in accordance
with the stipulation.
Thereafter , the respondent filed exceptions to the Intermediate Re-
port and a brief in support thereof. Pursuant to notice duly served
upon the parties , a hearing for the purpose of oral argument was held
before the Board at Washington, D. C., on August 12, 1941. The re-
spondent was represented by counsel and presented oral argument.
The Board has considered the respondent 's exceptions and briefs,
and in so far as the exceptions are inconsistent with the findings, con-
clusions, and order set forth below , finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
VETA MINES, INCORPORATED
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
291
The respondent is a Colorado corporation having its principal office
and place of business in San Miguel County, near the city of Telluride,
Colorado, where it is engaged in mining and milling ore containing
gold, silver, lead, and penalty quantities of zinc and iron. During 1939
the respondent produced gold and silver bullion valued at $279,892.93,
which was sold and shipped to the United States Mint at Denver, Colo-
rado, and concentrates valued at $863,703.29, which were sold and
shipped to the American Smelting & Refining Company at Leadville,
Colorado, where they were commingled with concentrates from other
sources and smelted. The resulting product, lead bullion, was shipped
to a refinery owned and operated by the American Smelting & Refin-
ing Company at Omaha, Nebraska, where it was refined for the pro-
duction of gold, silver, and lead. The concentrates produced by the
respondent in 1940, valued at not less than $753,483.11, were disposed
of in the same manner, while the silver and gold bullion produced
by the respondent in 1940 were sold to the United States Mint at Denver.
During the period from January 1 to November 25, 1940, the re-
spondent purchased. equipment,and supplies valued at $274,378.32. Of
this amount 6.87- percent, or about $19,000 worth, was transported to
the mine and mill of the respondent from States other than Colorado.
II. THE ORGANIZATION INVOLVED
International Union of Mine, Mill and. Smelter Workers, affiliated
with the Congress of Industrial Organizations, is a labor organization
which admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Refusals to hire Emil Millich and Alfonzo Roy
Emil Millich and Alfonzo Roy testified without contradiction and
we find that on July 15, 1939, they were employed by Shenandoah-
Dives Mining Company at Silverton, Colorado, about 80 miles distant
from Telluride; that they were members of Local 26 of the Union; that
Local 26 called a strike at Shenandoah-Dives Mining Company effec-
tive as of July 16, 1939, in which strike they participated; that they
Iemainecl on strike until November 25, 1939; that a new union, called
the San Juan Federation, was organized at Silverton and agreed that
the employees should return to work; that Millich and Roy did not
join the San-Juan Federation; and that they did not return to work
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Shenandoah-Dives MiningCompany.2 The complaint alleges and
the answer denies that they were refused employment by the respond-
ent because of their membership in and activities in behalf of Local
26 of the Union. The Trial Examiner found affirmatively and the
respondent takes exception thereto.
Although Millich was refused employment on or about December 27,
1939, and Roy was not refused employment until July 7 or 8, 1940, Roy's
case is discussed first because it sheds important light on that of Millich.
Roy. In July 1940, Narciso Grassotto, theretofore a regular em-
ployee of the respondent, became a "leaser." The system of leasing
then in use at the mine was as follows: When it became unprofitable
for the respondent to exploit a working place in the usual manner,
with the result that it might be necessary to lay off some miners, the
respondent "leased" one of these places or sections to one of the miners.
The latter then obtained men to work with him on the "lease," these
men being referred to in the record as "partners" of the "leaser." The
"leaser" was paid by the respondent on the basis of the amount and
quality of the ore produced from the "leased" working place and paid
his partners out of the proceeds. Although the respondent had a
printed lease form, there is no evidence that it was in use in July 1940,
nor does it appear that it has ever been in general use. Grassotto, who
started to work his lease on July 6,1940, had merely an informal verbal
understanding, terminable at will.-'
Grassotto testified that as a leaser, his right to hire "partners" was
subject to the approval of Herbert Lines, then the respondent's mine
superintendent, and that he sought the latter's approval before he hired
anyone; that on July 3, 1940, he spoke to Roy, with whom he was
friendly and who indicated a willingness to work on the Grassotto
lease; that he wanted to hire Roy; and that on July 7 or 8 he went to
Lines to obtain his approval. According to Grassotto, who is still in
the respondent's employment, the following conversation ensued :
I [Grassotto] said, "I have a friend of mine from Silverton. Is
there a chance to get him in with me on the lease."
He [Lines] asked me if he had any trouble in Silverton, and
then I said "Yes. It doesn't pay to tell it lie because today, to-
morrow, or the day after tomorrow you will find out the same
thing."
Then he said, "I am sorry I can't put him on because I have
orders from headquarters, from the big boss. He can't put no
mail from Silverton on from the C. I. 0."
2 Cf. Matter of Shenandoah -Dices Mining Company and International Union of Mine,
Mill ct Smelter Workers, Local No. 26 , etc., 35 N. L. R . B., No. 210.
7 The lease was ended by the respondent on September 15, 1940, because , according to
Grassotto , it was "too much trouble."
'VETA MINES, INCORPORATED 293
He said, "I am sorry you can't put on that man."
He said, "I had four men here on one day asking for a job. I
knew one of the men very well. He showed me how to work when
I was a kid; because he worked dn a mine for my father." He
said, "I am sorry to turn them down because they came from
Silverton."
Grassotto testified further that he then hired. two other men whom
Lines approved after being satisfied that they did not come from Sil-
verton.
Lines' testimony was equivocal. He testified that there was no rule
that his approval had to be obtained before a leaser could hire anyone,
and that the leasers would "not necessarily" come to him for such ap-
proval; that he never disapproved the hiring of anyone on a lease,
and that he knew of no cases where his approval had been sought. He
then admitted that Grassotto had recommended the hiring of one
Girardi to work on his lease and that he had approved such hiring
and had hired Girardi on Grassotto's recommendation. Lines also
admitted having been consulted with respect to, and having approved,
the hiring of a man on another lease in July 1940. Lines testified
further that Grassotto may have asked him whether he could hire
Roy. Asked whether he had told Grassotto that he could not hire Roy
because he had orders not to employ any C. I. 0. men from Silverton,
he replied : "No, I don't recall that." Pressed by the respondent's
counsel for an answer, he again replied : "I don't recall it." Lines
denied having told Grassotto that he had previously rejected four men
because they came from Silverton and denied that he had received any
orders not to hire union men from Silverton.
The Trial Examiner, who had an opportunity to observe the de-
meanor of the witnesses, credited the testimony of Grassotto. Upon
the entire record, we find that Grassotto was required to obtain the
approval of Lines before he could hire anyone to work with him or
that Grassotto reasonably believed that he was obliged to get such
approval ;4 that he wanted to employ Roy who desired to work with
him; that he asked Lines on July 7 or 8 whether he could hire Roy;
and that Lines replied in substance as testified to by Grassotto.
Grassotto continued to work his lease until September 15, 1940, when
it was terminated by the respondent. Thereupon Grassotto became a
regular employee of the respondent.
The respondent contends that Grassotto was not an employee but
was an independent contractor. We have found above that the so-
called lease was verbal, vague in its terms, and terminable at the will
4It is immaterial whether Grassotto was required to obtain Lines' approval or only
reasonably believed that he was under such a duty . Grassotto did seek such approval
in the case of Roy , and Lines did refuse to allow Grassotto to hire Roy.
294 DECISIONS OF NATIONAL; LABOR, RELATIONS BOARD
of the respondent, and that.Grass'otto's right: to: hire, was subject to
the approval of Lines or at least that Grassotto reasonably understood
that it was subject to such approval. The pay check given Grassotto
for the period ending July 31, 1940, particularly the. endorsement
thereon, was clearly the pay check of an employee, and not of an inde-
pendent contractor. John Ferguson, Jr., the respondent's mill super-
intendent, testified that he believed that the leasers were carried on
the books of the respondent as employees. No testimony to the con-
trary was offered, and we find, accordingly, that such was the. case.
The respondent customarily made deductions from the amounts due
the leasers for Social Security taxes, unemployment insurance, Work-
men's Compensation insurance,' group medical services, and lamp
rental for all working on the lease including the leaser, in the same man-
ner as it made deductions from the pay of its other regular employees.
The respondent's claim that these deductions were made by it merely
for the convenience of the leasers or that the respondent merely acted
as collecting agent for the leasers fails to explain why the deductions
affected the leasers themselves if they were not in fact considered as
employees.
Lines testified, and we find, that the Grassotto lease was in a section
of the mine being worked by the respondent and, accordingly, that
the leaser and those working with him usually followed the respond-
ent's rules, obtained their lamps and badges in the same manner as
other regular employees, went into and came out of the mine with
the rest of the employees-"had to go in with the shift and come
home with the shift,"-and always worked the same hours as the
rest of the employees. Lines, on his rounds through the mine, in-
spected the work done by the leasers and gave them directions if they
were doing anything wrong. Although the discharge or lay-off of
a man working with a leaser was generally within the control of the
leaser, if he hired a man whose incompetency or personal, habits
affected the safety of the other employees of the mine, Lines would
remove him.
Upon all the evidence we find, as did the Trial Examiner, that
Grassotto and the men who worked with him in July 1940 were em-
ployees of the respondent.' The creation of a lease through a vague,
5 The respondent asserted in its brief that Colorado statutes required -such deductions.
This would seem to indicate that the Colorado legislature considered, the leaser and his
partners to be employees within the policy of these statutes without regard to their status
at common law. In determining whether they are employees of the respondent within
the meaning of Section 2 (2) and (3) of the Act , we seek to apply the policy and pro-
visions of the Act and in such inquiry to take into consideration , but not be rigidly
bound by, common- law concepts.
9 Matter of Sierra Madre -Lamanda Citrus Association and Benjamin H. Betz d/b/a Betz
Packing Company and , Citrus Packing House Workers Union, Local No. 20766, 23'
N. L. R. B., No. 13; Matter of H. F. Wilcox Oil and Gas Company; Wilcox Refining,
'ETA MINES, INCORPORATED 295,
informal Vei-bal agreement terminable at will was -merely a device
enabling the respondent to give to employees, who might otherwise be
laid off, employment, upon terms less costly to the respondent than
the ordinary terms of employment. But even if Grassotto had been
ordinarily considered an independent contractor, since we have found
that Lines did refuse to allow Grassotto to hire Roy on the " lease,"
we should, in any event, find that the respondent was the prospective
employer of Roy within the meaning of the Act.
It is evident from Lines' statements to Grassotto and from. the
entire record, and we find, that Lines, acting in behalf, of the respond-
ent, ref used to pernlit Grassotto to hire Roy because of Roy's union
affiliation.
Millich. According to Millich, on or about Christmas' of 1939, but
probably after Christmas, he was in Telluride and heard that Super-
intendent Lines was in town. He went to the lobby of the Sheridan
Hotel in Telluride at about 5:.30 p. m. and asked to see Lines. He,
knew Lines by sight, having worked for him for a time at the Pride
of the West Mine in Silverton. Lines entered the lobby from some
-where on the lobby or "bottom" floor, accompanied by one Harry
Davis.7 Millich said "Hello, Herb," and Lines acknowledged the
greeting. Millich testified that the following conversation ensued :
I asked him for a job. He [Lines] asked me what my name
was and I told him my name was Emil Millich. He studied for
a while and said, "Yes, I think I can hire a man like you. Can
you operate a muck machine in a mine?" I said "Yes." He said,
"You know what you should do." I said "What should I do.".
He said, "You should change your name and Social Security-
number and when you do I shall hire you."
Millich testified at first that he made no response to Lines' sugges-
tion that he change his name and Social Security number, but later
stated that he told Lines that he would not do so. He testified further
that Lines stated :
Yes, I can use a machine operator pretty handy now, but I
can't put you on until you change your name and Social Security
number.
I can't hire you today but after the holidays when all of the
men return to their jobs, I will, if I can, put you to work right.
away.
Further questioning elicited testimony to the effect that Lines stated
that he would put Millich to work if he changed his name and Social
Division and/or W. M. Fraser and Oil Workers International Union, Local 257, 28--
N. L. R. B ., No. 19; Matter of Solvay Process. Co. and Wm. O. B. ThomLpson and District-
50, United Mine Workers of America, 26 N. L . R. B., No. 68.
7 Davis was identified by Lines as having been his mine foreman.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Security number, but not otherwise. Millich also testified that during
the course of the conversation he told Lines that he had worked for
him at the Pride of the West Mine.
Millich was unable to identify Lines at the hearing. Asked to do so,
he finally pointed to a man sitting only two seats away from Lines,
as resembling him. From the witness' vantage point, he had to look
past Lines in order to see the other person whom he selected.
Lines testified that as mine superintendent he had charge of the
hiring of miners in December 1939; that he needed miners at the
time; that he customarily gave preference in employment to men with
mining experience; 8 that he lived at the Sheridan Hotel at that time;
and that during the month of December 1939, three or four men
applied to him for work at the hotel every evening. - He also testified
that he generally went to dinner at 5:30 p. m., which would account
for his presence on the lobby floor of the hotel at that hour. He did
not deny that Davis was with him at the time Millich claimed to have
seen him, nor did he deny that Millich applied to him for a job, but
asserted that Millich may have applied, and asserted further that,
"I don't remember every one that called." He also admitted having
worked at the Pride of the West Mine for about 6 months, in the first
part of 1937, but stated that he did not remember Millich as having
worked there. He denied having told Millich to change his name and
Social Security number. He admitted having hired a machine oper-
ator on December 31, 1939. That was the type of job he mentioned
to Millich, according to the latter's testimony.
It is plain that Lines' testimony lends credence to the claim of
Millich that he applied to Lines for a, job in December 1939: Millich's
testimony concerning the time, place, and circumstances of the appli-
cation, and concerning Lines' mention of the availability, of a machine
operator's job, is fully in accord with the admissions made by Lines.
We attach little weight to the fact that Millich was unable to identify
Lines at the hearing. Since Millich had known him for only a short
time in 1937, and had seen him only briefly in December 1939, it is
not surprising that Millich could not recognize him 16 months later.
That certain inconsistencies are present in the testimony of Millich
and that his testimony was somewhat disjointed may be granted, but
the Trial Examiner attributed these defects to the extreme difficulty
which he had in expressing himself lucidly in English. Lines' testi-
mony was equivocal and evasive. The Trial Examiner, in resolving
the conflict between the testimony of Millich and Lines, also gave
much weight to the testimony of Narciso Grassotto, as discussed in
connection with the case of Roy, and credited Millich. Upon the
S Lines testified that "if it were a miner . or experienced man I always hired him," even
if the applicant were a stranger.
VETA MINES, INCORPORATED 297
entire record, we concur in the Trial Examiner's finding, and find,
accordingly, that on or about December 27, 1939, Millich applied to
Lines for a job under the circumstances testified to by Millich; that
Millich was an experienced miner whom, by his own admission, Lines
would normally have employed; and that Lines told Millich that a
machine operator's job was available, and that he would employ him as
a machine operator if he changed his name and Social Security num-
ber, but that otherwise further application for employment by Millich
would be futile.
There is no-reason apparent why Lines should have asked Millich to
-change his name and Social Security number unless Millich's name
was a bar to his employment by the respondent. Further light is shed
upon this problem by the testimony of Grassotto set out above in con-
nection with Roy's case. Upon the entire record, we find, as did the
Trial Examiner, that it was the respondent's policy not to employ
union members who had participated in the strike at the Shenandoah-
Dives Mining Company mine, and that Lines asked Millich to change
his name and Social Security number in order to circumvent this
policy.9 Both the employment policy of the respondent and the con-
dition of employment imposed by Lines were discriminatory against
members of the Union, and discouraged membership in that organi-
zation. The respondent made no attempt to prove that prior to Decem-
ber 1940,10 it employed even one union member who had joined in the
strike at Silverton.
Upon the entire record, we find that the respondent discriminated
with regard to the hire and tenure of employment of Millich and Roy,
thereby discouraging membership in the Union, and that the respond-
ent, by such discrimination and.by the statements of Lines to Grassotto
on July 7 or 8, 1940, interfered with, restrained, and coerced its em-
ployees in the exercise of the righf^ guaranteed in Section 7 of the Act.
B. Leonard Talbot and Charles Dosher
In his Intermediate Report, the Trial Examiner recommended that
the complaint be dismissed. in so far as it alleged that the respondent
engaged in unfair labor practices in refusing to employ Leonard Talbot
and Charles Dosher. No exceptions have been taken thereto. We have
examined the record with respect to Talbot and Dosher and we agree
with the Trial Examiner. We shall dismiss this part of the complaint.
9 Lines ' willingness to do this is explainable by the fact that he needed experienced
men in December 1939.
10 It appears that several were hired after that date.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent. set forth in Section III above,
occurring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the respondent engaged in unfair labor practices
-within the meaning of Section 8 (1) and (3) of the Act, we must order
the respondent, pursuant to the mandate of Section 10 (c), to cease and
.desist therefrom. We also predicate our cease and desist order upon
the following findings. Discrimination because of a person's union
.affiliation goes to "the very heart of the Act." 11 The respondent's
course of conduct discloses a purpose and tendency to defeat self-
,organization and its objects.12 Because of the respondent's unlawful
conduct and its underlying purpose and tendency, we are convinced that
the unfair labor practices found are persuasively related to the other
unfair labor practices proscribed and that danger of their commission
in the future is to be anticipated from the course of the respondent's
.conduct in the past.13 The preventive purpose of the Act will be
thwarted unless our order is coextensive with the threat. In order
therefore to make effective the interdependent guarantees of Section 7,
to prevent a recurrence of unfair. labor practices, and thereby to
minimize industrial strife which burdens and obstructs commerce, and
-.thus effectuate the policies 'of the Act, we must order the respondent
to cease and desist from in any manner infringing the rights. guaranteed
in Section 7 of the Act. We shall also order the respondent to take
certain affirmative action designed to effectuate the policies of the Act.
We have found that Millich and Roy were discriminatorily denied
employment by the respondent. We shall therefore order that the
respondent offer them employment at the same or substantially equiv-
alent positions at which they would have been employed had the
respondent not discriminated against them.
"See National Labor Relations Board v. Entwistle Manufacturing Co., 120 F. (2d)
532 (C. C. A. 4) ; Cf. Matter of Louis Kramer, et at . and International Ladies' Garment
Workers' Union, 29 N. L. R. B., No. 135; Matter of Burry Biscuit Corp. and Cracker
Biscuit Workers Union Local 411 of the Bakery & Confectionery Workers International
.Union of America, affiliated with the A. F. of L., et al., 24 N. L. R. B., No. 117.
18Cf. Phelps Dodge-Corp. v. National Labor Relations Board, 61 S. Ct. 685, where the
.Supreme Court stated : "Discrimination against union labor in the hiring of men is a dam
to self-organization at the source of supply. The effect of such discrimination is not
confined to the actual denial of employment ; it inevitably operates against the whole
idea of the legitimacy of organization. In a word, it undermines the principle which,
.as we have seen, is recognized as basic to the attainment of industrial peace."
11 See National Labor Relations Board v. Empress Publishing Co., 312 U. S. 426.
VETA MINE S, INCORPORATED 299
Roy obtained other regular and substantially equivalent employ-
ment on October 5, 1940, but desires employment in the respondent's
mine. For the reasons set' forth in Matter of Ford Motor Company
and International Union, United Automobile Workers of America,
Local Union No. 0449, 31 N. L. R. B., No. 170, we find that it is necessary
in order to effectuate the purposes of the Act that we order the re-
-spondent to offer Roy employment as above indicated.
We shall also order the respondent to make Roy whole for the loss of
pay he suffered by. reason of the discrimination against him by pay-
ment to him of a sum equal to the amount which he would normally
have earned as wages from July 8, 1940, to the date on which he is
offered employment by the respondent, less his net earnings 14 during
said period.
Millich underwent an operation for the removal of a kidney on
February 6, 1941. He is unable to work now and will be unable to
work until at least February 1942. He desires employment at the
respondent's mine when his physical condition permits.
We shall order that the respondent offer employment to - Millich
as above indicated, said offer to be made upon receipt by the respond-
ent of certification by a physician to be mutually agreed upon by the
respondent and the Union, or, in the event that they cannot agree, by
a physician selected by the Regional Director for the Twenty-second
Region, that Millich is able to resume his normal work. In the event
that such a position is not available at the time Millich is thus certified
as able to resume his normal work, the respondent shall give him pre-
ferred status and shall offer him employment at the same or substan-
tially equivalent position at which he would have been employed on
January 2, 1940, or at any position for which he is qualified as such
employment becomes available and before other persons are hired for
such work. Should a doctor's certificate attesting to his physical fit-
ness not be submitted to the respondent before April 1, 1942, 'the re-
quirement that the respondent employ him or give him preferred status
shall terminate.
We shall also order that the respondent make Millich whole for
any loss of pay lie has suffered by reason of the discrimination against
him by payment t:, him of a sum equal to the amount which he nor-
14 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 work -relief projects
shall be considered as earnings . See Republic Steel Corporation v. National Labor Rela-
tions Board, 311 U. S . 7. Back pay actually received pursuant to our Order in the
Shenandoah -Dives case , supra,. footnote 1, shall also be considered as earnings.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mally would have earned as wages from January 2, 1940,15 to the date
on which he became so physically incapacitated as.to be unable to work,
and from the date on which the certification is presented to the re-
spondent to the date on which he is offered employment as above
indicated, less his net earnings 16 during said periods.
The Board has issued a Decision and Order in Matter of Shenan-
doah-Dives Mining Company 17 which requires the employer in that
case to offer reinstatement with back pay to Millich and Roy, among
others. We find that the Order in that case does not affect the pro-
priety of the Order herein. Millich and Roy, of course, will not be
able to work at both mines at the same time, nor will they receive
double back pay for the same period 18
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Union of Mine, Mill and Smelter Workers 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 Emil Millich and Alfonzo Roy and thereby discouraging
membership in International Union of Mine, Mill and Smelter Work-
ers, 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.
5. The respondent did not discriminate in regard to the hire and
tenure of employment of Leonard Talbot and Charles Dosher.
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
"Although the refusal to employ Millich occurred on or about December 27, 1939,
Millich testified that Lines had told him that he would not be luring anyone until "after
the holidays." This meant not before January 2 , 1940, and his back pay should therefore
commence from that date.
1° See footnote 14, supra.
17 Supra, footnote I.
1s See footnote 14, supra.
VETA MINE'S, INCORPORATED 301
respondent, Veta Mines, Incorporated, Telluride, Colorado, 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 or in any other labor organization of its
employees by discriminating in regard to the hire or tenure of
employment or any term -or condition of employment;
(b) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection,, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer immediate employment to Alfonzo Roy at the same
or a substantially equivalent position at which he would have been
employed on or about July 7 or 8, 1940, or thereafter had the re-
spondent not unlawfully refused to hire him;
(b) Offer to Emil Millich -upon receipt of certification by a
physician to be mutually agreed 'upon by the respondent and the
Union, or, in the event that they cannot agree, by a physician se-
lected by the Regional Director for the Twenty-second Region, that
he is able to resume his normal work, employment at the same or a
substantially equivalent position at which he would have been em-
ployed on or about January 2, 1940, had the respondent not unlaw-
fully refused to hire him; in the event that such a position is not
available at the time Millich is thus certified as able to resume his
normal work, the respondent shall give him preferred status and
shall offer him employment at the same or substantially equivalent
position at which he would have been employed on or about Janu-
ary 2, 1940, or at any position for which he is qualified, as such
employment becomes available and before other persons are hired
for such work; should a doctor's certificate attesting to his physical
fitness not be submitted to the respondent before April 1, 1942, the
requirement that the respondent employ him or give him preferred
status shall terminate;
(c) Make whole Emil Millich and Alfonzo Roy for any losses of
pay they have suffered by reason of the respondent's refusal to hire
them by payment to each of them of a sum equal to that which he
normally would have earned as wages during the period from the
date he was refused employment to the date on which he is offered
employment, as provided in Section 2 (a) of this Order in the case
of Roy, and to the date on which he became so physically incapaci-
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tated as to be unable to work and from the date on which the cer-
tification is presented to the respondent to the date on which he
is offered employment as set forth in Section 2 (b) of this Order,
in the case of Millich, less his net earnings 19 during said periods;
(d) Post immediately in conspicuous places throughout its mine
and mill and in its offices and maintain for a period of not less than
sixty (60) consecutive days from the date of posting, notices to its
employees stating (1) that the respondent will not engage in the con-
duct from which it is ordered to cease and desist in paragraphs 1 (a)
and (b) of this Order; (2) that it will take the affirmative action
set forth in paragraphs 2 (a), (b), and (c) hereof; and (3) that
the respondent will not discriminate against any applicant for em-
ployment because of his membership or activity in International
Union of Mine, Mill and Smelter Workers ;
(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, and
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices in refusing to employ Leonard Talbot and
Charles Dosher.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
10 See footnote 14, supra.