American Smelting & Refining Co.

National Labor Relations Board - Board Decisions

Aug 26, 1941

34 N.L.R.B. 968 (N.L.R.B. 1941)

In the Matter of AMERICAN SMELTING & REFINING COMPANY and
INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS,
LOCAL 509.
Cases Nos. R-2307 and C-1867.Decided August 26, 1941
Jurisdiction : smelting industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements.
Discrimination: discharge for union activities ; alleged basis for discharge held
mere pretext.
Remedial Orders : reinstatement and back pay awarded.
Practice and Procedure : petition dismissed in view of lapse of time since filing;
held: notice posted by employer at suggestion of Board agent investigating
charges filed by the union, offers no legal obstacle to Board's ordering em-
ployer again to post notices advising employees of Board's Order and of their
rights under the Act.
Mr. V. Lee McMahon, for the Board.
Kemp, Smith, Goggin c0 White, by Mr. J. M. Goggin, of El Paso,
Tex., and Mr. R. Worth Vaughan, of New York City, for the
respondent.
Mr. Herman Wright, of Houston, Tex., and Mr. James Robinson
and Mr. Mark Robinson, of El Paso, Tex., for the Union.
Mr. H. E. Brockmoller, of El Paso, Tex., for the Council.
Mr. A. F. Cadena, of El Paso, Tex., for the Federal Union.
Mr. Herbert N. Shenkin, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On August 12, 1940, International Union of Mine, Mill and'Smelter
Workers, Local 509, affiliated with the Congress of Industrial
Organizations, herein called the Union, filed with the Regional Di-
rector for the Sixteenth Region (Fort Worth, Texas) a petition, and
on August 22 and November 25, 1940, respectively, amended petitions
alleging that a question affecting commerce had arisen concerning the
representation of employees of American Smelting & Refining Com-
34 N. L. R. B , No. 112.
968
I
AMERICAN SMELTING & REFINING COMPANY 969
pany, El Paso, Texas, herein called the respondent, and requested an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On December 4, 1940, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 2, as amended, ordered an investigation, and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
Upon a charge 1 duly filed by the Union, the Board, by the Regional
Director, issued its complaint dated January 14, 1941, against 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
Act. Copies of the complaint, charge, and amended petition,"accom-
panied by notice of hearing, were duly served upon the respondent,
the Union, and the El Paso Metal Trades Council, affiliated with the
American Federation of Labor, herein called the Council, a labor
organization claiming to represent employees directly affected by the
investigation. The Board, by order dated December 23, 1940, con-
solidated the complaint and representation cases for the purposes of
hearing.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent (1) on or about August 8, 1940,
discouraged membership in the Union by discharging Humberto
Silex, and on or about August 19, 1940, discharging Ceferino
Anchondo, employees in the respondent's El Paso plant, and there-
after failing and refusing to employ them, for the reason that they
joined and assisted the Union and had engaged in concerted activities
for the purposes of collective bargaining and other mutual aid and
protection; (2) since about March 1, 1940, urged, persuaded, and
warned its employees not to become or remain members of the Union,
kept activities 'and meetings of the Union under surveillance, and
refused to assist or promote its employees if they remained members
of the Union ; (3) between March and September 1940 threatened
its employees with reprisals if they did not join the American Fed-
eration of Labor, and (4) by the foregoing and by other acts inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
On January 27, 1941, the respondent filed its answer admitting the
allegations of the complaint concerning the interstate character of
1 On January 28, 1941, after the hearing in these cases had begun, the, Union filed an
amended charge dropping the name of an employee alleged in the original charge to have
been discriminatorily discharged.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its business, but denying that it had engaged in or was engaging in
the alleged unfair labor practices.
Pursuant to notice, a consolidated hearing was held from January
30 to February 8, 1941, at El Paso, Texas, before Thomas H. Ken-
nedy, the Trial Examiner duly designated by the Chief Trial Exam-
iner. The Board, the respondent, the Union, the Council, and
Federal Labor Union No. 21735, affiliated with the American Federa-
tion of Labor, a member of the Council, herein called the Federal
Union, were represented at the hearing and participated therein. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues. During the course of the hearing the Trial Examiner made
numerous rulings on motions and on objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial eirors were committed. The rulings
are hereby affirmed. At the conclusion of the hearing the Trial
Examiner offered all parties an opportunity to argue orally before
him; only counsel for the Union and for the Council availed
themselves of this offer.
On April 11, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent, the
Union, and the Council, wherein 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. He recommended that the respondent
cease and desist from such practices, offer reinstatement with back
pay to Humberto Silex, and take certain other remedial action.
On February 24, 1941; the Council filed a brief and on March 11,
•1941, a supplemental brief in the representation case. On the latter
date, the Union also filed 'a brief in the representation case. The re-
spondent filed exceptions to the Intermediate Report on May 20, 1941,
and ; a brief in support of its exceptions on May 29, 1941. None of
the parties requested oral argument before the Board:
The Board has considered all the briefs filed by the parties. The
Board has also, considered the respondent's exceptions to the Inter-
mediate Report and, in so far as they are inconsistent with the find-
ings of fact, conclusions of law, and order set forth below, finds them
to be without merit.
Upon the entire record'in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
American Smelting & Refining Company, a New Jersey corpora-
tion, has its principal office and place of business in New York City.
AMERICAN SMELTING & REFINING COMPANY 971
It owns and operates , directly and through subsidiaries , about 30
smelting and refining plants and about 18 mines in the United States,
Mexico, and South America. The only plant involved in this pro-
ceeding is located at El Paso, Texas, herein referred to as the El
Paso plant . The respondent employs approximately 600 employees
at the El Paso plant, where it is engaged in the smelting of copper
and lead ores and concentrates . Ninety-five per cent of the raw
materials received at the El Paso plant is shipped from points of
origin outside the State of Texas, and practically all the copper and
lead bullion produced at the El Paso plant is shipped to points out-
side the State of Texas. During the year 1940 , 22,286 tons of copper,
valued at approximately $7,195,246, and 38,048 tons of lead bullion,
valued at approximately $4,500,700, were produced at the El Paso
plant.
H. THE ORGANIZATIONS INVOLVED
International Union of Mine , Mill and Smelter Workers, Local
509, affiliated with the Congress of Industrial Organizations, is a
labor organization admitting to membership employees of the
respondent at its El Paso plant.
El Paso Metal Trades Council, affiliated with the Metal Trades De-
partment of the American Federation of Labor, and Federal Labor
Union No. 21735, affiliated with the American Federation of Labor,
herein sometimes called the A. F. of L., are labor organizations. The
Council represents the International Association of Machinists, Lodge
730; the International Brotherhood of Boilermakers , Iron Ship
Builders , Welders and Helpers , No. 216; the International Brother-
hood of Electrical Workers, No. 585; the International Brotherhood
of Steam and Operating Engineers, No. 598; the International
Brotherhood of Plumbers and Steamfitters, No. 293; the Inter-
national Brotherhood of Blacksmiths , Drop Forgers and Helpers
No. 506; the Sheet Metal Workers International Union, No. 206;'
and the Federal Union, all affiliated with the American Federation
of Labor. The various unions represented by the Council admit to
membership employees of the respondent at the El Paso plant.
III. THE UNFAIR LABOR PRACTICES
A. Background
The respondent and the Council entered into a collective bargain-
ing contract on January 20, 1939, in which the respondent recognized
the Council as the exclusive representative of all its employees at the
El Paso plant, with certain exceptions. On November 15, 1939, the
same parties executed a similar contract . During July and August,
1940, shortly after the Union became active at the El Paso plant,
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
representatives of the Council initiated a campaign to collect dues,
to secure designation cards from old members of the A. F. of L.
unions at the El Paso plant, and to enroll new members. On
December 1, 1940, the respondent and the Council entered into a
third collective bargaining agreement similar to the two previous
contracts.
B. Interference, restraint and coercion
In the summer of 1939 Humberto Silex, whose alleged discrimina-
tory discharge by the respondent is considered below, signed what
was known as a "general C. I. O. card." He became a one-man
committee in the El Paso plant for the purpose of stimulating in-.
terest in the Congress of Industrial Organizations, herein called
the C. I. O. Between the summer of 1939 and November of that
year, he secured the signatures of more than 20 employees on "general
C. I. O. cards." In November 1939 an international representative
of the C. I. O. visited Silex in El Paso, and thereafter Silex secured
C. I. O. literature and cards from the headquarters of that body.
Early in 1940 Silex obtained newspapers issued by the C. I. O. con-
taining information urging workers to join that organization. Silex
took these papers to the El Paso plant. The janitor on duty -in the
bath house discovered some of these papers and asked Silex whether
they were his. Silex admitted that they were. Thereupon, accord-
ing to Silex's uncontradicted testimony, the janitor took his name
and went to the employment office. Shortly afterward, Silex went
to the employment office, where he saw Ysles, assistant employment
manager . A discussion ensued, in which Ysles asked Silex why he
changed his name when someone asked him what his name was.
Silex denied giving a wrong name. Thereupon Ysles asked Silex
if he was a member of the C. I. O. When Silex answered in the
affirmative, Ysles said that it appeared to him that the C. I. O.
was a one-man organization, and 'warned Silex not to inform any-
one that he was a member of the C. I. O. Ysles, who did not testify
at the hearing, is clearly a member of the respondent's supervisory
staff ,2 and his statements to Silex are attributable to the respondent.3
In July 1940 the Union was formed at the El Paso plant. An-
chondo, whose alleged discriminatory discharge is considered below,
was elected president of the local, and Silex was elected secretary.
At this time and immediately afterwards the Union and the A. F.
of L. unions affiliated with the Council engaged in intensive cam-
paigns for members among the respondent's employees in the El
Paso plant.
2 Strylier, plant superintendent , testified that Ysles had the same status as a foreman.
'International As8ociataon of Machintists , etc v N. L. R B, 311 U S. 72.
AMERICAN SMELTING & REFINING COMPANY 973
Sometime in August 1940 Garcia, an employee at the El Paso
plant, was, engaged in conversation by Hart, a skimmer. Hart was
a relief foreman and was acting as foreman in Garcia's department
at the time in question. According to Garcia's testimony, Hart
handed him an A. F. of L. application card, told him to sign it, and
then said that if the C. I. 0 came into the plant work would stop.
Hart testified that he was an A. F. of L. member and was active
in the A. F. of L.'s membership drive in August 1940; but that he
did not remember asking Garcia to sign an A. F. of L. card. He
did admit asking Garcia to attend an A. F. of L. meeting during
August 1940. We find, as did the Trial Examiner, that Hart solic-
ited Garcia's membership in the A. F. of L. and made the statements
attributed to him by Garcia. Since Hart was a relief foreman, and
was acting in a supervisory capacity at the time of this incident, the
respondent is responsible for his actions.
Diaz, a timekeeper at the El Paso plant, testified as follows :
Sometime in August 1940 he saw W. F. Brockmoller, a machinist at
the El Paso plant and president of the Council, handing out A. F.
of L. membership cards at the plant. After he was offered but de-
clined to take a card, Diaz went into the office where his desk was
located. A few minutes later Diaz saw his immediate superior, Vega,
the unloading foreman, talking to Brockmoller. Vega and Brock-
moller then came into the office, which Diaz shared with Vega, and
Vega told Diaz that Brockmoller wanted to talk with him. Brock-
moller unsuccessfully solicited Diaz's membership in the A. F. of L.,
and left 'the office. Thereupon, Vega, who had remained in the
office during this incident, said to Diaz that since Diaz was a new
man it did not matter much whether he joined the A. F. of L. or
the C. I. 0. because'he could always get a job if the smelter shut
down. Vega added that the older men who had accumulated senior-
ity would be the sufferers when the plant closed. Vega said that
the C. I. 0. demands were too great and that the smelter would prob-
ably shut down and the concentrates would be sent to some other
plant, in Mexico.
Vega testified that Brockmoller had asked him on the occasion
in question to assist in the distribution of A. F. of L. cards but that
he had refused to do so. He denied having solicited A. F. of L.
memberships. He testified that he told Diaz that the older men,
those with 25 or more years of service, did not have to belong to
a union, that their seniority rights were secure and that for them
to join a union was "just throwing your money away." Brockmoller
testified that he did not- recall seeing Vega in the vicinity at the time
when he was soliciting signatures to A.-F. of L. cards, but that he
did actively solicit A. F. of L. memberships at the plant during
August 1940.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the admitted anti-union statement of Vega and in view
of his failure more than partially to deny Diaz's testimony, we credit
Diaz's testimony and find the facts to be as he stated.4
In the summer of 1940 Limon, an employee in the lead depart-
ment, was requested by Sackett, an active solicitor for the A. F. of
L., to sign an A. F. of L membership card. Sackett was a machine
man who often acted as foreman. On the occasion' in question he
was so acting. This solicitation took place, on company time and
property. Limon later joined one of the A. F. of L. unions and
was an A. F. of L. member at the time of the hearing.
In the summer of 1940, after Anchondo had been elected president
of the Union, he was approached by Lempert, a foreman, during
working hours. Lempert told Anchondo that he understood An-
chondo was "a big shot" now and explained that he meant that
`Anchondo was president of the Union. Lempert advised Anchondo
that he was "sticking his neck out," that the respondent would shut
down the plant if the C. I. O. came in, and that the bosses would
be watching him and would find a way of discharging him. Lem-
pert testified that he did not recall any such conversation. The
Trial Examiner, who had an opportunity to observe the witnesses,
credited Anchondo's testimony in this respect, and we find, as did
the Trial Examiner, that Lempert made, the statements attributed to
him by Anchondo.
Prior to March 1940, Anchondo had been vice president of the
Federal Union for about 16 months. He had also served on the
grievance committee of that union'and was a member of its bargain-
ing committee. In March 1940 he resigned from the Federal Union.
In July 1940 there was an opening for a temporary machine
man's job. Anchondo testified that Sackett, who before this time
had been his close friend and who was at the time acting as a fore-
man, told Anchondo that if the latter would help the A. F. of L.
men in their efforts to strengthen the organization of the A. F. of L.
at the El Paso plant, Sackett would see Stryker and try to secure
for Anchondo the temporary machine man's job. Anchondo, who
was then already becoming active in behalf of the Union, refused
this request. In his testimony, Sackett denied having made these
statements but admitted having discussed the C. I. O. and A. F. of
L. with Anchondo on many occasions. We find, as did the Trial
Examiner, that Sackett made the remarks in question. Shortly after
4 The Trial Examiner concluded that the conversation between Vega and Diaz did not
constitute interference, restraint, or coercion on the pact of the respondent Vega's ad-
nutted remarks, to which the Trial Examiner referred, clearly compel a contrary conclusion
The Trial Examiner apparently based his conclusion on testimony which he thought was
given by Diaz that he had been informed of the activities of the C I 0. by supervisory
employees "just the same as the A. F of L." Diaz did not so testify . The broadest find-
ing that the record affords in this regard is that a strawboss , subordinate in rank to Vega,
talked to Diaz, not on Company time or property, about the C. I. O.
AMERICAN SMELTING & REFINING COMPANY 975
this conversation with Sackett, Anchonco applied for the tem-
porary machine man's job, but was informed that he did not have
the qualifications for it.
We find that the respondent, by the anti-union' statements of Hart,
Vega, Sackett, and Lempert, as above related, interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed in section 7 of the Act.
The complaint alleged that the respondent kept under surveillance
activities and meetings of the Union. We find, as did the Trial
Examiner, that there is no evidence in the record to support this
allegation and shall dismiss the complaint to this extent.
C. The discriminatory discharge
Humberto Silex entered the employ of the respondent at the El
Paso plant in April 1937 and worked at a variety of jobs until about
July 20, 1940, when he was assigned to the operation of a Symond
crushing machine. Silex was discharged on August 8, 1940. The
record is clear, and the respondent does not contend otherwise, that
Silex's work prior to the events of August 7-8, 1940, was entirely
satisfactory.
As we have shown, Silex was the,first advocate of the C. I. 0 ' in
the El Paso plant. He signed the "C. I. O. general card" in the sum-
mer of 1939; later actively solicited the adherence of other employees
to the C. I. 0.; consulted with the C. I. O. international representa-
tive on his visit to El Paso in November 1939; engaged in the dis-
tribution of C. I. O. literature at the plant; and became secretary
of the Union upon its formation at the El Paso plant in July 1940.
On August 5, 1940, the Union addressed a letter to the respondent
stating that a majority of the workers in the El Paso plant were
members of the Union and that the Union wished to meet with
a representative of the respondent for the purpose of entering into
negotiations for an agreement regarding wages, hours, and other con-
ditions of employment. Silex and Anchondo signed this letter as
secretary and president, respectively, of the Union. The respondent
received this letter on or about August 6, 1940.5
The Symond crusher, operated by Silex, receives ore from a con-
veyor belt and screen and reduces the size of ore pieces. The ore is
transported on the conveyor belt from railway cars and at the end of
5 On August 12, 1940, it answered by a letter pointing out that the Union had offered no
proof of the statement that it represented a majority , and stating that the respondent had
an agreement with the Council, and that, "In effect, therefore, your letter suggests that I
[MacKenzie, manager of the El Paso plant] disregard that agreement " The respondent's
letter also stated that the respondent would deal with whatever labor organization was
entitled to recognition under the Act, but that the respondent would not comply with the
request of the Union to bargain " unless it is determined , in the manner provided in the
Act, that your Union is entitled to such recognition "
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conveyor belt is dropped on a screen known as the Leahy 6 screen.
A mechanical vibrator operated by an electric motor shakes the
screen, with the result that the finer ore passes through the screen
and thus by-passes -the Symond crusher. The coarser ore goes di-
rectly into the hopper of the crusher, where it is ground up. The
operator stands on a floor a few feet below the top of the Symond
crusher. The electric motor and vibrator attached to the Leahy
screen are located 10 or 12 feet above the floor on which the operator
stands but they are within his view. ,
As related above, Silex was assigned to the operation of the
Symond crusher shortly before the night of August 7-8, 1940. Be-
fore his regular assignment to the crusher Silex has seen other em-
ployees operating it over a period of a year or two, while he was
engaged on other duties in the mill. Silex had been instructed as
to his duties as operator on the crusher by his immediate superior,
Arellano, strawboss in mill No. 1. His instructions included direc-
tions not to allow the ore to pile up on the screen, and to see that
the crusher did not stop. In general Silex was to watch both the
crusher and the vibrator. If the crusher choked up with ore, Silex
was directed to communicate immediately with Arellano, who would
then instruct him whether or not to shut off the machinery.
Although Silex had been informed of the method by which,he could
stop the crusher and the vibrator, he was under orders first to notify
Arellano before he stopped thee operation of the mechanisms.
Arellano had discussed this matter with Silex and explained to him
that if the machinery was stopped, it would affect the operations
in the entire mill; therefore, the decision of whether or not to stop
either the crusher or the 'vibrator must be made by the strawboss.
Arellano normally stood on a floor immediately above the position
of Silex and they could see each other. Although Arellano was
required to move about throughout the mill, the time, during which
he was away from the station within sight of Silex was customarily
very short.
Silex came on duty at 11 p. m. on the night of August 7, 1940. The
machinery at that time appeared to him to be operating normally.
Harris was the oiler on the shift. It was Harris' duty to visit the
vibrator mechanism, to note its condition, to check the oil in it, and
to see that the machine was properly supplied with oil. He was
supposed to perform this task at least once every two hours. Harris
testified that he* oiled the vibrator at about 11:30 p. m., August 7,
and found the machine to be very hot. According to his testimony,
he filled the machine with new oil and reported its excessive heat to
Arellano who then commenced working on the machine.
Also referred to in the record as Leah and Lehigh.
AMERICAN SMELTING & REFINING COMPANY ' 977
According to the testimony of Silex, at about 12: 30 a. m. August
8, the conveyor stopped and he pulled the ore off the screen by hand ;
after he had completed this operation, the vibrator still did not
function. Silex further testified that Arellano then approached Silex
and asked him what the trouble was and when Silex explained what
had happened Arellano instructed him to cut the vibrator switch,
which he did. Silex testified that Arellano then took a wrench,
climbed up over the vibrator and tightened a bolt on it, whereupon
the vibrator commenced operating again. Arellano in his testimony
denied that anything had gone wrong with the vibrator between 11
p. m. August 7 and 1 a. m. August 8. Like the Trial Examiner, we
credit the testimony of Silex and Harris in this respect, and find
that sometime between 11 p. m. August 7 and 1 a. m. on August 8,
Arellano was informed of the improper operation and stoppage of
the vibratory machinery and made some repair to the vibrator
machinery.
There is a conflict in the testimony, also, as to the number of times
Harris oiled the vibrator on the night of August 7-8. It is clear
that he oiled the machine at about 11: 30 p. m., at the beginning of
the shift. Silex testified that he did not see Harris at any time
between then and 4 a. m. on August 8. Harris testified that he
oiled the vibrator about 1 a. m. on August 8; Arellano confirmed
this. However, Quarles, the mill foreman, testified that Harris did
not even claim he had oiled the vibrator after the beginning of the
shift. We find that Harris failed to oil the vibrator after 11:30
p. m. on August T.
At about 4 a. m. August 8, Silex saw steam coming out of the gear
housing of the vibrator. He immediately went to the floor above
his usual station and notified Arellano. Silex and Arellano went
to the position of the vibrator. Arellano found that the gear box was
very hot and he told Silex to shut off the motor attached to the
vibrator. After this was done, he instructed Silex to pull the ore
off the screen by hand, and to start the motor. Silex turned on the
power but the motor did not operate. An electrician who was
summoned found that the motor would not operate the vibrator.
He disconnected the motor from the vibrator, whereupon the motor
operated. From this the electrician concluded that the difficulty was
with the vibrator rather than with the motor.
Quarles came on duty at 8 a. m. August 8. Shortly thereafter,
he received a report that there had been a 25-minute delay in the mill
operation due to the break-down of the vibrator. Quarles reported
the matter to his immediate superior, Andre, the assistant super-
intendent. Andre found that, the vibrator had been burned and he
instructed Quarles to arrange an • investigation for the following
morning. Later that day Quarles reported to Andre that he believed
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Silex had been either asleep on the job or away from his post.
On the morning of August 9, Quarles conducted an investigation by
questioning Arellano and Harris. Silex was also present. It was
agreed by all that the vibrator had burned out due to lack of oil.
The investigation developed that Silex had informed Arellano that
the vibrator was smoking as soon as Silex discovered the fact and
also that the vibrator had been shut down as soon thereafter as
Arellano and Silex could reach it. Quarles testified at the hearing
that on the basis of his investigation, he was of the opinion that
Silex had been negligent. He stated that it was Silex's duty to watch
the vibrator and shut it down if it appeared to be burning. Quarles
discharged Silex immediately after the investigation of August 9.
Harris' supervisor, J. H. Johnson, assistant master mechanic, suspended
Harris for 5 days as a result of the investigation but a few days later
Johnson 'discharged Harris, asserting that he had changed his mind
with respect to the punishment he believed Harris to have deserved.
Silex took up the matter of his discharge with Quarles' superiors
but without result. The respondent contends Silex was discharged
for cause and has steadfastly refused to reinstate him.
Certain facts concerning the events of August 7 and 8 stand out
clearly. The vibrator machinery burned out because of, lack of oil.
Harris failed to oil the vibrator at proper intervals and this derelic-
tion was the primary cause of the trouble. Silex carried out his
instructions concerning the operation of the crusher and vibrator and
according to these instructions immediately communicated with Arel-
lano- when the machinery failed to function properly. Under those
circumstances, it is clear that Silex was not responsible for the burning
of the vibrator.
It is significant that the respondent apparently concluded that
Silex had been at fault on August 8, before consulting or interrogat-
ing Arellano, Silex's immediate superior.7 Yet Arellano was the
respondent's representative with the best knowledge of the facts and
logically should have been the first person to be questioned. Arel-
lano testified that no one- spoke to him about the burning of the
vibrator until the investigation of August 9, immediately after which
Silex was discharged.
Furthermore, Arellano, testifying as the respondent's witness, sup-
ported Silex's version of the incident. He testified that he had been
on the job all the time prior to 4 a. in. August 8, and that he had
both Silex and the machine under observation every 5 minute's during
this period. This testimony completely refutes the contention that
Silex was either asleep on the job or away from his post and supports
the testimony of Silex that he acted promptly upon learning of the
break-down The respondent might still contend that Silex was on
Thus, Quarles reported to Andre on August 8 that Silex had been either asleep on the.
job or away from his post.
. AMERICAN SMELTING & REFINING COMPANY 979
the job but nevertheless permitted the vibrator to burn up. In that view
of the case, however, it is peculiar that Arellano was not disciplined.
He had an equal opportunity to observe the danger and he testified
that if anything shad been wrong with the machine, he would have
noticed it. Moreover, his was the supervisory responsibility for the.
operation of the vibrator.
The respondent's good faith is also subject to question because of
the disciplinary treatment it accorded Harris. Although Harris'
failure to oil the machinery was the primary cause of the break-
down, he was at first only given a 5-day lay-off. Johnson testified
that in first-offense cases it was customary at the plant merely to
impose a 5-day lay-off. It is true that Harris' suspension was later
changed to a discharge but the respondent's reason for this change
in punishment is not convincing. The respondent contended that be-
fore Harris was laid off it was not clear that his instructions were
to oil the machinery every 2 hours and that when this was later
ascertained to be true, Harris was discharged. However, Johnson,
whose duty it was to instruct the oilers, testified that he himself
had broken Harris in on the job and had clearly instructed him to
oil the machinery every 2 hours. This testimony was developed at
the hearing by the respondent's counsel. The respondent then un-
successfully tried to impeach Johnson, for he had stated in a written
report that he had first laid Harris off, checked to find out if Harris
had been instructed to oil the machine every 2 hours, and then
discharged him. The contrast between the treatment originally ac-
corded Harris, a member of no union, and that given Silex, whom
the respondent knew to be an active Union member, supports the
conclusion that Silex was discharged not because of the burning of
the vibrator but because of his union activities.
The respondent offered testimony to the effect that Silex was neg-
ligent in allowing the vibrator to burn up. Johnson, a mechanic
since 1909 with considerable experience in the inspection of burned
bearings, inspected the disassembled vibrator after the break-down
and concluded that the machine had operated without oil for 11/', to
2 hours, before the break-down. The machine only operates properly
in oil. Johnson testified that the odor of oil smoke coming from a
bearing would be strong. MacKenzie, a chemist and metallurgist
with many years' experience at the respondent's plants, inspected the
disassembled vibrator after the break-down and testified that it con
tained a bronze bearing that would operate until it reached a heat
of 1080° Centigrade or about 2000° Fahrenheit and that the machine
ran without oil a sufficient length of time to cause a break-dawn.
The Trial Examiner concluded that this testimony of Johnson and
MacKenzie established no material fact. We think such testimony
is relevant but that under all the circumstances it is not sufficient to
support the respondent's theory of Silex's discharge.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
The record clearly establishes Silex as the original organizer of
the Union in the El Paso plant. As above related, various members
of the respondent's supervisory staff had on occasion expressed their
opposition to the organizational activities of the Union at the plant.
The respondent knew of Silex's activities in behalf of the Union.s
We find, as did the Trial Examiner, that the respondent's alleged
reason for the discharge of Silex was mere pretext, and that the
respondent discharged Humberto Silex on August 9, 1940, and there-
after refused to reinstate him, because of his union membership and
activities, and thereby discriminated in regard to his hire and tenure
of employment, discouraged membership in the Union, and interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Ceferino Anchondo.-The Trial Examiner found that Anchondo
had been discharged for cause, and that the allegations of the com-
plaint as to him had not been sustained. We agree with the con-
clusions of the Trial Examiner. No exceptions to this finding of the
Trial Examiner have been filed. We shall dismiss the allegations
of the complaint as to Anchondo.
The 'respondent, relying on the first decision in the Newark Ledger
case," moved at the hearing to dismiss the complaint as to Silex
'and Anchondo because they failed to resort to remedies available to
them under the collective bargaining contract then in force between
the respondent and the Council.
The Board has never accepted the position that the execution of
a collective bargaining agreement ousts the Board's jurisdiction in
unfair labor practice cases. Furthermore, this case differs from the
Newark Ledger case in two important respects: (1) the Council
contract only prohibits discrimination with regard to union activity
on behalf of unions affiliated with the Council; (2) the discharged
employees were not members of the union holding the collective bar-
gaining agreement and they would be required to prosecute their
grievance through an organization hostile to the one to which they
belonged. Finally, the Newark Ledger case on rehearing has now
been reversed."' The Trial Examiner properly denied the respond-
ent's motion to dismiss on this ground.
IV. THE EFFECT OF 'iHE 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 de-
s Silex signed the letter of August 5, 1940, requesting the respondent to recognize the
Union ; and as related above, Ysles had talked with Silex about his C. I. O. activities.
9 National Labor Relations Board v . Newark Morning Ledger Company , 120 F. (2d) 262
(C. C. A. 3 ), setting aside Matter of Newark Morning Ledger Company and American
Newspaper Guild, 21 N. L R. B 988.
10 120 F. (2d) 266.
AMERICAN SMELTING & REFINING COMPANY 981
scribed 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
Since we have 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 which we find necessary to effectuate
the policies of the Act.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Humberto Silex by discharging
and refusing to reinstate him because of his union membership and
activity. We shall therefore order the respondent to offer Silex
immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority and other rights
and privileges. We shall also order that the respondent make Silex
whole for any loss of pay he may have suffered by reason of the
respondent's discrimination against him by payment to him of a
sum of money equal to the amount of money he would normally
have earned as wages from August 9, 1940, the date' of his discharge,
to the date of the respondent's offer of reinstatement, less his net
earnings 11 during said period.
In its Exceptions and Brief, the respondent contends that, assum-
ing that certain of its supervisory staff engaged in conduct pro-
hibited by Section 8 (1) of the Act, the effect of any such violations
has been, dissipated as a result of its posting a notice at the plant
at the request of an agent of the Board It appears that a Field
Examiner of the Board, during an investigation of the charges filed
by the Union, asked the respondent to post a notice advising its em-
ployees of their rights under the Act and stating that no officer, agent,
or employee of the 'respondent would interfere with, restrain, or
coerce any of the respondent's employees in the exercise of their
right to join any labor organization. The respondent posted such
a notice.
Since this notice was not posted pursuant to any agreement settling
or compromising the unfair labor practice charges, there is no legal
obstacle to our requiring the respondent again to post notices advis-
u By "net eai nings" 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 Co and United Brotherhood of Carpenters and Joiners of America,
Lumber d Sawmill Workers Union , Local 2590, 8 N. L. R B. 440 . Monies received for
work performed upon Federal, State, county , municipal , or other work-relief projects shall
be considered as earnings See Republic Steel Corporation v. National Labor Relations
Board, 311 U. S. 7.
451269-42-vol. 34-63
982 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
ing its employees of our Order and of their rights under the Act.
In addition, we have found that the respondent violated Section 8
(1) and (3) of the Act by discharging Silex. Therefore, we would
in any event require the respondent to post appropriate notices
remedying this unfair labor practice.
VI. THE PETITION FOR INVESTIGATION AND CERTIFICATION OF
REPRESENTATIVES
In view of the lapse of time since The filing of the petition by the
.Union for an investigation and certification of representatives, we
will dismiss the petition without prejudice.
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, Local
509, affiliated with the Congress of Industrial Organizations, El Paso
Metal, Trades Council, affiliated with the Metal Trades Department
of the American Federation of Labor, and the various American
Federation of Labor Unions affiliated with the Council, are labor
organizations within the meaning of Section'2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Humberto Silex, thereby discouraging membership in the
Union, 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 has not engaged in unfair labor practices within
the meaning of the Act by discharging or refusing to reinstate Ceferino
Anchondo, or by keeping the activities and meetings of the Union
under surveillance.
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, American Smelting & Refining Company, El Paso, Texas,
and' its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Mine,
Mill and Smelter Workers, Local 509, affiliated with the Congress of
AMERICAN SMELTING & REFINING COMPANY 983
Industrial Organizations, or any other labor organization of its
employees, by discriminating in regard to the hire and tenure of
employment or any term or condition of employment of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid 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 to Humberto Silex immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority and other rights and privileges;
(b) Make whole said Humberto Silex for any loss of pay which
he may have suffered by reason of the respondent's discrimination
against him, by payment to him of a sum of money equal to that which
he would normally have earned as wages from August 9, 1940, to
the date of the offer of reinstatement, less his net earnings during
said period;
(c) Post immediately in conspicuous places throughout the El Paso
plant 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) above; (2) that the
respondent will take the affirmative action set forth in paragraphs 2
(a) and (b) above; and (3) that the respondent's employees are free
to become or to remain members of the ,International Union of Mine,
Mill and Smelter Workers, Local 509, affiliated with the Congress
of Industrial Organizations, and that the respondent will not discrim-
inate against any employee because of his membership in or. activity
in behalf of said labor organization;
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, in so far as it alleges that
the respondent engaged in unfair labor practices by discriminating
in regard to the hire and tenure of employment of Ceferino Anchondo
or by keeping the activities and meetings of the Union under
surveillance, be, and the same hereby is, dismissed.
IT Is FURTHER ORDERED that the petition for investigation and cer-
tification of representatives be, and it hereby is, dismissed without
prejudice.