Nevada Consolidated Copper Corp.

National Labor Relations Board - Board Decisions

Aug 24, 1940

26 N.L.R.B. 1182 (N.L.R.B. 1940)

In the Matter of NEVADA CONSOLIDATED COPPER' CORPORATION and
INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS
In the Matter of SANTA RITA STORE CORPORATION (NO STOCK-
HOLDER'S LIABILITY), SUCCESSOR IN INTEREST TO SANTA RITA
STORE COMPANY, AND KENNECOTT COPPER CORPORATION and
INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS
Cases Nos. C-1052 and C-1447.-Decided August ,24, 1940
Jurisdiction : copper mining industry.
Unfair Labor Practices
Discrimination: refusal to hire former employees because of actual or supposed
union membership and activity-refusal to hire new applicants because of
relationship to a union member-charges of discrimination as to 32 persons,
dismissed.
Remedial Orders: reinstatement and back pay awarded.
Definitions
Persons whose employment with respondent ceased as a result of shut-down
of mine due to economic conditions in 1934 no longer retained their status as
employees at the time the respondent resumed operations in 1937.
Mr. Charles A. Graham, Mr. Newell N. Fowler, and Mr. Paul S.
S. Kuelthau, for the Board.
Wilson and Woodbury, by Messrs. J. F. Woodbury, and Percy
Wilson, of Silver City, N. Mex., Mr. C. C. Parsons, of Salt Lake City,
Utah, and Mr. H. M. Fennemore, of Phoenix, Ariz., for the respondents.
Mr. Allan Lind, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Union of Mine, Mill and Smelter Workers, herein called the Union,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Twenty-second Region (Denver, Colorado),
issued its complaint dated April 21, 1938, against Nevada Consoli-
dated Copper Corporation, New York City, herein called the respond-
ent, alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
26 N. L. R. B., No. 113.
1182
NEVADA CONSOLIDATED COPPER CORPORATION 1183
Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint and accompanying notice of hearing were duly served upon
the respondent and the Union.
With respect to the unfair labor practices the complaint alleged,
in substance, that since on or about January 1, 1937, -the respondent
has refused to reinstate or to give employment to certain specified
individuals 1 because they had joined and assisted the Union and
engaged in concerted activities with other employees for the purpose
of collective bargaining and other mutual aid and protection, thereby
discouraging membership in the Union and interfering with, re-
straining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On May 2, 1938, the respondent filed an answer admitting in part
and denying in part the allegations of the complaint concerning its
business, denying that the alleged unfair labor practices affect com-
merce, and further denying that it had engaged in or was engaging in
the alleged unfair labor practices. The respondent also filed a
separate motion to dismiss the complaint on jurisdictional grounds.
Pursuant to notice, a hearing was held in Silver City, New Mexico,
from May 2 through May 6, and on June 13, 1938, before Joseph S.
Kiernan, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and partici-
pated in the hearing. Officials and members of the Union were
present and testified, but otherwise the Union did not participate in
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties.
At the opening of the hearing counsel for the Board by a written
motion moved to amend the complaint and the charge to correct the
spelling of certain names and to add to the complaint and the charge
the names of 30 other individuals as having been discriminated against
by the respondent.2 At the same time Board's counsel orally moved
to add to the complaint and the charge the names of eight additional
individuals 3 and to strike from the complaint and charge the names
of four other individuals.' During the course of the hearing Board's
counsel also moved to amend the complaint by adding the names of
four other persons.' The Trial Examiner granted such motions.
The rulings are hereby affirmed. During the course of the hearing
I There were 61 persons named in the original complaint. Their names appear in Appendix A.
2 On April 27, 1938 , prior to the time this motion was made, Board 's counsel issued a notice of intention
to amend the complaint in this respect. Copies of such notice were duly served upon all parties. A list of
such persons is hereinafter included in Appendix A.
3 These individuals are also included in Appendix A.
4 Ben Rodriguez, Francisco Ramirez, Nicolas Ramirez, and Jose Orosco.
5 These individuals are also included in Appendix A.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel for the respondent moved to dismiss the complaint on the
grounds set forth in its answer. The Trial Examiner denied the
motion. This ruling is hereby affirmed. At the conclusion of the
hearing Board's counsel moved that the charge and complaint be
amended to conform to the proof. The Trial Examiner granted this
.motion and extended the ruling to include the respondent's answer.
The ruling is hereby affirmed.
On July 11, 28, and August 1, 1938, counsel for the Board and
counsel for the respondent entered into several stipulations relating
to certain errors in the transcript of the record. These stipulations
.care hereby made a part of the record.
On November 19, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, in which
he found 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 Act. He recom-
mended that the respondent be required to cease and desist from such
practices and to offer reinstatement with back pay to 71 persons found
to have been discriminatorily discharged and refused employment.
He also recommended that the respondent be required to offer immedi-
ate employment to 10 named individuals 6 when work of a kind.which
they had previously performed or which they could perform became
available. The Trial Examiner recommended further that the com-
plaint 'be dismissed as to 20 named individuals.' On December 17,
.1938, the respondent's exceptions to the Intermediate Report and the
various rulings of the Trial Examiner were docketed. On February
28, 1939, the respondent filed a brief in support of its exceptions.
On July 25, 1939, the Board, acting pursuant to Article IT, Section
35, of National Labor Relations Board Rules and Regulations-
Series 2, ordered that the record in this proceeding be reopened, and
remanded the case to the Regional Director, authorizing him to serve
notice of a further hearing for the purpose of introducing evidence
relating to certain matters excluded by the Trial Examiner and such
other evidence as might be relevant to any of the issues in the case.
On October 27, 1939, the Union filed charges against Santa Rita
Store Company, herein called the Store Company, and -Kennecott
Copper Corporation, herein called Kennecott. On November 1,
1939, the Board ordered that the case arising out of the above charges
s Julio Grade, Ray Gumfory, Ramond Horcasitas; Maclovis Huerta, Geronimo Jaurigui, Jesus M.
Martinez, Pauline Rodriquez, Pedro Saiz, and Gilbert Saenz. Gregorio Arispe was also included in this
group. In another part of the Intermediate Report the Trial Examiner inadvertently dismissed the com-
plaint as to Arispe.
7 Refugio Apodaca , O. W. Booth , Encarnacion Dominguez , Lee Goetz , Juan Gonzalez , Isaac Greear,
Tony Guerro, Robert Hileman, Charles Johnson, Thomas C. Lottriz, Roy Martin, Jose Orosco, Guillermo
Placencio, Francisco Ramirez , Nicolas Ramirez, Teodoro Rios, Ben Rodriguez , Ralph Saenz , and Bailey
Winsatt. The Trial Examiner inadvertently included Genaro Grijalva in this group. In another part of
the Intermediate Report the Trial Examiner ordered Grijalva reinstated with back pay.
NEVADA CONSOLIDATED COPPER CORPORATION 1185
be consolidated with the proceeding against the respondent.8 Upon
amended charges duly filed by the Union against Kennecott and Santa
Rita Store Corporation, herein called the Store Corporation, successor
in interest to the Store Company, the Board on November 21, 1939,
by the Regional Director, issued its complaint 'against the Store
Corporation and Kennecott alleging that they had engaged in and
were 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 and accompanying notices of
hearing were duly served upon the Store Corporation, Kennecott,
the respondent, and the Union.
With respect to the unfair labor practices the complaint alleged,
in substance, that Kennecott and its agent, the Store Corporation,
refused to reinstate and/or reemploy David B. Saenz, a former em-
ployee of the Store Company, during December 1936 and January
1937 because of the membership and activity in the Union of persons
related to David B. Saenz.
On December 6, 1939, Kennecott and the Store Corporation filed
a joint answer admitting in part and denying in part the allegations
of the complaint concerning their businesses, denying that the alleged
unfair labor practices affected commerce, denying that they had
engaged in or were engaging in the alleged unfair labor practices, and
further denying the jurisdiction of the Board. On the same day they
filed a separate motion to dismiss the complaint.
Pursuant to notice, a hearing was held upon the consolidated cases
on December 7, 1939, before Berdon M. Bell, the Trial Examiner duly
designated by the Board. The Board, the Store Corporation, Ken-
necott, and the respondent appeared by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties.
At the opening of the hearing counsel for the Board moved to
amend the complaint against the respondent to add the names of 19
individuals as having been discriminatorily refused reinstatement or
employment by the respondent because of their union membership
and activity." This motion was granted by the Trial Examiner.
The ruling is hereby affirmed. During the course of the hearing and
upon motion of counsel for the Board, the Trial Examiner dismissed
the complaint against the respondent, without prejudice, as to 13
e The proceeding against the respondent is designated C-1052 ; that against the Store Company and
Kennecott as C-1447.
9 On November 29, 1939, the Board issued a new order of consolidation correcting the caption of the pie-
vious order or consolidation to name the Store Corporation rather than the Store Company . For our
findings with respect to the relationship between the respondent , the Store Corporation , and Kennecott,
see Section I, infra.
10 The names of these individuals are included in Appendix A.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
named individuals." At the close of the hearing the respondent made
several different motions to dismiss the complaint as to various
individuals. The Trial Examiner denied these motions. We affirm
his rulings in so far as they are consistent with the findings, con-
clusions, and order' hereinafter set forth.
During the course of the hearing the Store Corporation and Ken-'
necott moved to dismiss the complaint filed against them. The
Trial Examiner reserved ruling on their motion. For the reasons set
forth below we shall grant the motion.
During the course of both hearings the Trial Examiners made other
rulings on motions and on objections to the admission of evidence.
The Board has reviewed all of the rulings and finds that no prejudicial
errors were committed. The rulings, except as modified herein, are
hereby affirmed.
On January 4, 1940, the Board issued an order vacating and setting
aside the Intermediate Report filed in Case No. C-1052. It further
ordered, in accordance with Article II, Section 36 (a), of National
Labor Relations Board Rules and Regulations-Series 2, that Case
No. C-1447 be transferred to and continued before the Board for
action pursuant to Article II, Section 37, of said Rules and Regula-
tions. The Board also ordered that no Intermediate Report be
issued by the Trial Examiner in the further hearing and that, pursuant
to Article II, Section 37 (c), of said Rules and Regulations, Proposed
Findings of Fact, Proposed Conclusions of Law, and a Proposed Order
be issued in the consolidated cases. It further provided that the
parties herein should have the right within twenty (20) days from the
receipt of said Proposed Findings of Fact, Proposed Conclusions of
Law, and Proposed Order to file exceptions, to request oral argument
before the Board, and to request permission to file a brief with the
Board.12
On February 6, 1940, a stipulation entered into between , counsel
for the Board and counsel for the respondent, relating to certain
errors in the transcript of the record, was docketed. This stipulation
is hereby made a part of the record.
On June 29, 1940, the Board issued Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order in this proceed-
ing, copies of which were duly served upon all parties. Exceptions
to the Proposed Findings of Fact, Proposed Conclusions of Law, and
11 George Byers , Martin Gallegos , William Greer , C. M. Gumfory , O. M. Gumfory , Florencio Heredia,
Robert Hileman , E. C. Hill, Julian Juarigui , Roy Martin , Encarnacion Murillo, Jr ., Raymundo Murillo,
and Bailey Winsatt.
12 The Proposed Findings of Fact, Proposed Conclusions of Law and Proposed Order stated that:
The Board 's Rules and Regulations-Series 2, as amended , now in effect , provide that the parties
may, as a matter of right, file briefs with the Board , and that they shall have thirty (30) days from the
date of the Proposed Findings of Fact, Proposed Conclusions of Law , and Proposed Order within
which to file such briefs.
NEVADA CONSOLIDATED COPPER CORPORATION . 1187
Proposed Order were filed by the respondent and the Union on July
27, 1940. The respondent also requested . that it be afforded an
opportunity for oral argument before the Board. On July 29, 1940,
the respondent filed a brief in support of its exceptions.
Pursuant to notice, oral argument was had before the Board in
Washington, D. C., on August 1, 1940. Counsel for the respondent
appeared and participated in the argument.
The Board has considered the exceptions to the Proposed Findings
of Fact, Proposed Conclusions of Law, and Proposed Order and, in
so far as the exceptions are inconsistent with the Findings, Conclu-
sions, and Order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE RESPONDENT, KENNECOTT, AND THE STORE
CORPORATION
Kennecott, a New York corporation with its principal office in
New York City, is engaged, with its subsidiaries, in the copper-mining
industry in the United States, Alaska, and Chile; in the copper-
fabricating industry; and in incidental transportation operations.
With its subsidiaries it ranks as the second largest copper-mining
enterprise in the world and the largest in the United States.13
The present proceedings are concerned with Kennecott's wholly'
owned subsidiaries. Nevada Consolidated Copper Corporation and
Santa Rita Store Corporation. The Nevada Consolidated Copper
Corporation, a Delaware corporation, operates an open-pit copper
mine at Santa Rita, New Mexico, and a mill and smelter at Hurley,
New Mexico. Santa Rita Store Corporation, a New Mexico corpo-
ration, operates and manages two merchandising stores located at
Santa Rita and Hurley, New Mexico.
The respondent produces copper ore at the Santa Rita mine. All
of the ore so produced is shipped to the respondent's mill at Hurley
13 The annual report of Kennecott to the Securities Exchange Commission for the fiscal year ending
December 31, 1936, lists the following subsidiaries , with percentages of voting control : Kennecott Sales
Corporation , 100 per cent; Copper Houses , Inc., 100 per cent; Chase Brass & Copper Company, Inc., 100
per cent; The Upson Water Company , 100 per cent ; American Brass & Copper Company , 100 per cent; the
Waterville Corporation , 100 per cent ; the A. J. Patton Company, 100 per cent; the Great Brook Manufac-
turing Co., 6635 per cent ; the Superior Wire Cloth Company, 6631 per cent ; Hallenbeck-Hungerford Realty
Company, 50 per cent; Alaska Development and Mineral Company , 100 per cent ; Dikdick Exploration
Company, Ltd ., 58.83 per cent; Ray & Gila Valley Railroad Company , 100 per cent ; Nevada Northern
Railway Company , 100 per cent; Copper River & Northwestern Railway Co ., 100 per cent ; Alaska Steam-
ship Company , 100 per cent ; Gibson Stores Company, 100 per cent; Gallup American Coal Company, 6635
per cent ; Santa Rita Stores Company, 100 per cent; Ray Electric & Telephone Co., 100 per cent; Kennecott
Wire and Cable Company, 100 per cent; Garfield Chemical & Manufacturing Company, 50 per cent; Gar-
field Water Company, 6635 per cent ; Garfield Improvement Company, 70 per cent; Bingham and Garfield
Railway Company, 100 per cent; Utah Copper Company , 100 per cent ; Nevada Consolidated Copper Com-
pany , 100 per cent ; Braden Copper Company, 100 per cent; Mines Products Corporation , 100'per;cent; and
three foreign subsidiaries , 100 per cent.
1188 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
where it is reduced to two classes of concentrates, to wit: copper
concentrates, which are smelted at the smelter at Hurley, and molyb-
denite concentrates, which are stored at the Hurley concentrator and
shipped directly to purchasers outside of New Mexico." Approxi-
mately all of the copper concentrated: at the Hurley mill and. smelter
from Santa Rita ore are transported from said mill and smelter in
New Mexico, into and through States other than New Mexico and
to foreign countries.
The value of operating supplies used by the respondent at Santa
Rita and Hurley in the conduct of its business from January 1, 1937,__
to March 31., 1938, totaled $2,251,000. Of these' supplies, $661,400
worth, or 29.38 per cent were purchased in the State of New Mexico;
while $1,589,600 worth, or 70.62 per cent, were purchased outside
New Mexico and shipped to Hurley and Santa Rita. The value of
construction supplies purchased for use at Santa Rita and Hurley
during the same period totaled $1,779,500. Of these supplies, $119,-
500 worth were purchased in the State of New Mexico, while $1,660,-
000 worth were purchased outside New Mexico and shipped to
Hurley and Santa Rita. The respondent estimated that from April 1,
1938, to December 31, 1938, construction supplies valued at $1,150,400
were to be used at the mine, mill, and smelter, and that approximately
the same percentage of such supplies would be purchased outside of
New Mexico as were purchased outside of New Mexico from January
1, 1937, to March 31, 1938.
Santa Rita Store Corporation's annual purchases of supplies and
merchandise amounts to approximately $340,000. All of such pur-
chases are made outside of New, Mexico and practically all of said
supplies and merchandise are sold to employees of the respondent.
The officers and directors of the Store Corporation also hold positions
with the respondent. We find that the Store Corporation is operated
in conjunction with the respondent, and that together they comprise
Kennecott's mining enterprise at Santa Rita and Hurley.
I. THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill and Smelter Workers is a labor
organization affiliated with the Congress of Industrial Organizations.
Local No. 63 of the Union, herein called Local 63, is a labor organiza-
tion which admits to membership employees of the respondent and
the Store Corporation at Santa Rita. Local No. 69 of the Union,
herein called Local 69, is a labor organization which admits to mem-
bership employees of the respondent at Hurley.
11 A small amount of gold and silver is also produced at the respondent ' s mine.
NEVADA CONSOLIDATED COPPER CORPORATION 1189
III. THE UNFAIR LABOR PRACTICES
A. Background of the unfair labor practices
1. Organization of the Union; proceedings
by the Union against the respondent
Shortly after the National Industrial Recovery Act 15 was enacted
on June 16, 1933, the respondent inaugurated an Employee Repre-
sentation Plan. R. B. Tempest, general manager of the Chino
Mines Division of the respondent, which includes the properties at
Santa Rita and Hurley, initiated the Plan and supervised its organi-
zation. Employee representatives were elected from five departments
of the mine and mill and monthly meetings with the management
were held.
In the spring of 1934 J. I. Kemp, an employee representative under
the Plan, contacted the secretary of the Union, secured applications
for membership, and proceeded to organize a local of the Union. He
was aided in his organizational campaign by several fellow workers.
On March 24, 1934, Local 63 of the Union was chartered.16 By the
fall of 1934 a substantial number of employees were members of Local
63. Some time in September recognition of Local. 63 as the repre-
sentative of all the employees was requested by the Union. This
request was refused by Tempest. As a result of this refusal the Union
petitioned the `National Labor Relations Board, which existed under
the National Industrial Recovery Act, herein called the Old Board,
for an election to determine the exclusive bargaining representative of
the respondent's employees at Santa Rita and such representative at
Hurley. On September 15, 1934, separate elections were held at
Santa Rita and Hurley under the auspices of the Los Angeles Regional
Labor Board, to determine whether or not the employees of the
respondent at Santa Rita and at Hurley wished to be represented by
Local 63. At Santa Rita Local 63 won the election by a vote of
215 to 92. At Hurley Local 63 lost by a vote of 129 to 89. Local 63
was thereafter certified by the Old .Board as the legal representative
of the Santa Rita employees, but was denied certification as the
representative of the Hurley mill employees.
On October 9, 1934, the respondent posted a notice announcing an
indefinite shut-down of the Santa Rita and Hurley operations. On
October 12 Local 63 filed charges with the Old Board alleging that the
shut down was a lock-out in violation of Section 7 (a) of the National
Industrial Recovery Act and the Code of Fair Competition for the
Copper Industry, under which the respondent was then operating.
15 48 Stat. 195.
16 At this time Local 63 included workers at both the Santa Rita mine and the Hurley mill. The Hurley
local of the Union, Local 69, was not chartered until September 24, 1934.
323429-42-76
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 18 and again on October 29 the Old Board referred the
charges to the Mountain States Regional Labor Board and requested
it to assume jurisdiction. A hearing was held before the Regional
Labor Board on February 13 and 14, 1935. On March 29, 1935, the
Regional Board issued its decision, which reads, in part, as follows:
We find from the testimony introduced that the respondents
had been operating for more than twelve months at a loss, due
to the low price of copper, and that this constituted. the major
cause of the closing of their plant at Hurley and Santa Rita. It
is possible that the organization and election conducted by com-
plainants and the possibility of labor trouble may have been one
of the factors considered in arriving at the final decision to close,
but it appears that for many months respondents had been
gradually reducing the work period and the number of employees
and that the proximate cause of the shutdown was a purely
economic one.
The Regional Labor Board further found that there was no inter-
ference, restraint, or coercion exercised by the respondent against the
Union and that none of the charges made by the complainants were
supported by competent evidence." The Union filed an appeal from
the Regional Labor Board's decision with the Old Board at Washing-
ton, D. C., but no decision was handed down by the Old Board since
the National Industrial Recovery Act was declared unconstitutional
on the day the hearing was scheduled.
2. Attitude of the respondent toward the organization of its
employees
Although the Old Board found that the shut-down of the respond-
ent's operations at Santa Rita and Hurley was not motivated pri-
marily by the organization of the Union, various occurrences shortly
before and after the shut-down indicate that the respondent's atti-
tude toward the Union was not one of complete disinterestedness as
it claims. The record establishes that the respondent was opposed
to the unionization of its employees from a period antedating the
shut-down. The efforts of certain supervisory employees to dissuade
employees from voting for the Union in the election held in 1934
clearly reveal the respondent's hostility to the Union and Local 63.
Some time before the election Roy Grissom, assistant mine super-
intendent, asked Felipe Huerta, an employee, why he was such a
strong union man. Huerta replied that he and his companions
desired better working conditions. Grissom then advised Huerta, "It
is better for you to think it over or not vote for the union because
17 The decision of the Regional Labor Board was a divided report, the Director, who acted as Chairman
of the Board, dissenting from the opinion.
NEVADA CONSOLIDATED COPPER CORPORATION 1191
this camp has been working and operating for 25 years and you have
been protected. If the Union is successful the camp will stop for a
year and you will lose your work, possibly you will not get it again.
It is better for you to take your Union with the Company, put the
Superintendent in as president and leave these outsiders out."
Grissom also advised Rafael Kirker and Jose Puertos, employees of
the respondent, "to be careful and vote the proper way, especially the
Mexicans."
Shortly before the election, Marcelo Avalos, an employee at
Hurley, was told by his foreman, Claude Danley, not to vote in favor
of the Union because it was "not agreeable to the Company." Ac-
cording to Carlos Elvira, an employee at Hurley, Danley also notified
certain Hurley employees "that the union was coming to Hurley
. . if we voted for the union the company would close down its
work." This testimony was not denied.
When Ira Jones Hicks, a Santa Rita employee, placed a union
notice on the bulletin board, his foreman, Belford, remarked, "Some
more of that stuff you are pulling off. You fellows pay in to those
white collared union guys and receive nothing from it and possibly
will cause you trouble. later on."
On or about September 9, 1934, H. A. Thorne, the mine superin-
tendent, asked Simon Sias, a Santa Rita employee, why he was work-
ing for the Union. Sias denied working for the Union, but expressed
his approval of it. Thorne then attempted to dissuade Sias from
remaining a member of the Union by telling him that if he was
satisfied with his work, he did not need a union, and that while, gen-
erally speaking, the Union was "good," it would not be "good" in the
respondent's camp.
Evidence of this nature, of which the foregoing is just a sample,
particularly when considered in conjunction with the events occurring
at the reopening of the mine, which are described below, establishes
that the respondent was opposed to unionization of its employees.
Since the National Labor Relations Act became effective only on
July 5, 1935, none of the foregoing activities constitute violations of
that statute. They are important, however, in considering the signif-
icance of the respondent's actions since that date."
3. The circumstances surrounding the shut-down
In September 1934, the last month in which the respondent oper-
ated prior to the shut-down, there were 343 employees at Santa Rita
and 245 at Hurley. On October 9 the respondent posted a notice
announcing an indefinite shut-down of both mine and mill. By
November the respondent had reduced its pay roll to 45 at Santa
IS National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261.
1192 DECISIONS OF iVATIOIVAL LABOR RELATIONS BOARD
Rita and 70 at Hurley. The entire office force at Santa Rita was
discharged, and no attempt was made to keep even a skeleton crew.
Assistant superintendents, foremen, subforemen, the purchasing
agent, and the chief engineer at the power. plant were all discharged.
The term "discharge" was not used on the employment records of
those whose, employment was terminated. On the other hand, there
was no evidence that the men were told that they would be called
back later, as had been customary when individual employees were
laid off temporarily. The employees who were let out as a result of
the shut-down were given their final time slips and required to turn
in their identification checks. Their names were dropped from the
pay roll, and their employment records were placed in the dead file
along with thousands of other individuals whose employment had
been finally terminated.
In December 1935 the electric power plant at Hurley was com-
pletely shut down, an event which had not previously occurred in
the 25-year history of the mine. This necessitated a further reduc-
tion in force, 23 additional employees being eliminated. Early in
1936 the Apache water pumping plant, which was the main source
of water for Hurley and Santa Rita, was replaced by smaller pumps;
the telephone offices at Santa Rita and Hurley were both closed;
while the hospital at Santa Rita was boarded up. A general exodus
of former employees followed when it became clear that the shut-
clown of operations was to be for an indefinite period,. No attempt
was made to preserve the former dwelling places of persons who left;
no repairs were made; the windows and doors were sealed up with
boards; and in many instances all water and light connections were
severed. Some of the Mexicans who owned their own homes, located
on company property, moved them away voluntarily. At least half
of the houses that remained were abandoned to the elements. Both
communities took on the appearance of ghost mining towns. It was
expected at the time of the shut-down that the mine and mill would
be closed for at least 5 years. .
The respondent contends that the shut-down terminated the
employee-employer relationship existing between the respondent and
its employees and that, therefore, the complainants, no longer being
employees, are not entitled to the protection of the Act. On the
basis of the entire record we find that the individuals whose work
ceased with the shut-down of the mine and mill in October 1934 no
longer retained their status as employees at the time the respondent
resumed operations in January 1937. The loss of their status as
employees, however, did not withdraw the protection of the Act
from them. A refusal to hire such individuals upon the reopening
of the mine, because of their union membership or activity, would
NEVADA CONSOLIDATED COPPER CORPORATION 1193
be a violation of Section 8 (1) and (3) of the Act.19 We turn to a
consideration of the question of whether or not the respondent, the
Store Corporation, and Kennecott refused to hire the individuals
named in the complaint, as amended, because of their union member-
ship and activity.
B. Discrimination with regard to hire
1. Allegations of the complaint
The complaint as originally drawn and subsequently amended,
alleged that the respondent, by refusing to reinstate or to give employ-
ment to 116 named individuals, discriminated against them in regard
to their hire and tenure of employment. At the first hearing counsel
for the Board moved to dismiss the complaint as to four persons.20
This motion was granted by the Trial Examiner. At the second
hearing the Trial Examiner granted a motion of counsel for the Board
to dismiss the complaint as to 13 persons.21 Eleven- of the com-
plainants did not appear to testify.22 There is.little evidence in the
record with respect to these 11 individuals and such evidence as
exists is insufficient to sustain the allegations of the complaint. We
shall, therefore, dismiss the complaint as to them.
There remains for the consideration of the Board the cases of 89
persons claimed to havebeen discriminatorily refused employment by
the respondent.23 Of the 89 persons, 68 claim that they were discrim-
inatorily denied employment at Santa Rita, while 21 claim that they
were discriminated against at Hurley. In addition, the complaint
against the Store Corporation and Kennecott alleges that they, and
each of them, discriminated in regard to the hire and tenure of employ-
ment of David Saenz. Saenz is also named in the complaint against
the respondent. The respondent, the Store Corporation, and Kenne-
cott deny that they engaged in the alleged unfair labor practices.
19 See National Labor Relations Board v. Waumbec Mills, Inc., 114 F. (2d) 226 (C. C. A. 1), enforcing as
modified, in a particular not here relevant, Matter of Waumbec Mills, Inc. and United Textile Workers of
America, 15 N. L. R. B. 37; Matter of Milan Shirt Manufacturing Company and Milan Improvement Com-
pang and Amalgamated Clothing Workers of America, 22 N. L. R. B., 1143 Cf., however, Phelps Dodge Cor
poration v. National Labor Relations Board, 113 F. (2d) 202 (C. C. A. 2) 6 L. R. R. 756, enforcing as modified,
Matter of Phelps Dodge Corporation and International Union of Mine, Mill and Smelter Workers, Local. No.
30, 19 N. L. R. B. 547; National Labor Relations Board v. National Casket Co., Inc., 107 F. (2d) 992 (C. C.
A. 2).
20 See footnote 4, supra.
11 See footnote 11, supra.
22 Refugio Apodaca, O. W. Booth, Juan Gonzalez, Isaac Greear, Antoni Guenero, Tony Guerro, Thomas
Lottriz, Guillermo Placencio, Antonio Quesada, Teodoro Rios, and Ralph Saenz.
23 The name of Orvil Waggoner does not appear in the complaint as amended. However, Waggoner
appeared at the hearing as a complainant and testified in his own behalf. Full opportunity to cross-examine
him was afforded the respondent. The Trial Examiner considered his case and ordered his reinstatement.
A motion to amend the complaint to conform to the proof was granted at the close of the hearing without
objection on the part of the respondent. We conclude that the case of Waggoner was fully litigated. We
shall therefore consider him as one of the complainants.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Reopening of the mine and mill
a. Employment statistics; availability of jobs
Before considering the evidence relating to the respondent's reasons
for refusing to hire the 89 complainants herein, we shall examine the
evidence to determine whether or not there were positions available
for the complainants at the respondent's mine and mill at the time
they were refused employment. The record shows that due to the
advance in the demand for copper, Kennecott issued instructions in
October 1936 for the reopening of its mining properties at Santa Rita
and Hurley. In November 1936 the respondent began hiring men
in preparation for the reopening of the mine and mill. On January
1, 1937, the mine began operations and by February it was producing
at half capacity.
With the reopening of the mine and mill the respondent proceeded
to hire a great many employees. The following tables set forth the
number of old and new workers employed by the respondent during
the pay-roll periods indicated:
Santa Rita Mine 24
February April December
1937 1938 1939
Number of former employees _______________________________________ 107 102 130
Number of new employees ________________________________________ 269 425 606
Total--------------------------------- ------------- 376 527 736
HURLEY MILL
February April December
1937 1938 1939
Number of former employees_______________________________________ 74 68 90
Number of new employees __________________________________________ 302 435 656
Total ------------------------------------------------------ 376 503 746
24 The above tables do not include foremen and others in supervisory capacities.
In addition to the above pay-roll figures, H. A. Thorne, superin-
tendent of the mine, testified that the number of men employed at the
mine increased from a minimum of 415 employees in January 1937 to a
maximum of 667 in October 1937.25 He further testified that the e
was a gradual decline in the number of men employed from -October
1937 to May 1938, and that the maximum number of men employed
was 548. In July 1938 pit operations were, suspended entirely.
This necessitated a reduction in force, the number of employees being
reduced to 162. During the months of August, September, and half
25 These and the following figures apparently include supervisory employees . No figures were given for
the Hurley mill by Thorne.
NEVADA CONSOLIDATED COPPER CORPORATION 1195
of October 1938, stripping operations alone were carried on in the
mine. No ore whatever was being produced during this time and as
a consequence the Hurley mill was closed. During these months the
respondent had approximately 400 employees at the Santa Rita
mine. From October 16, 1938, up to September 1939, a gradual
increase in the number of employees was noted. In September 1939,
due to the war scare, a great number of employees were added to the
pay roll. In November 1939 there were 818 men on the Santa Rita
pay roll.
The analysis of the pay-roll records and testimony set forth above
shows that since January 1937, with the possible exception of the
month of July at Santa Rita and the period between July and Octo-
ber 16, 1938, at Hurley, there were positions available for all of the 89
complainants, and that the respondent had more than 89 new em-
ployees in its employ. There is no question but that the complain-
ants could have filled the positions occupied by the new employees.
We, therefore, find that, beginning in January 1937 and extending to
July 1938, and from October 16, 1938, to December 1939, jobs were
available for all of the complainants and that the respondent could
have hired them had it so desired.28
b. Change in employment policies at the respondent's mine and mill
(1) Rehiring in 1922 as compared with policy in 1937
The shut-down in 1934 was the second general shut-down experi-
enced at the respondent's mine and mill.27 The other occurred in
1921 and extended over a period of a year, the mine and mill reopen-
ing in April 1922. As to the method of recalling the men, it is per-
tinent to compare the practice followed in 1922 with that of 1937.
The record shows that in 1922 the following complainants were
recalled by the mining company from places outside Santa Rita and
Hurley: Angus Gruwell was recalled from Arizona by a letter from
the company's employment agent. J. W. Baxter received a wire in
Oklahoma from the company requesting him to return to work.
26 The respondent contends, in its exceptions to the Proposed Findings of Fact, Proposed Conclusions of
Law and Proposed Order, that the above finding "rests upon the erroneous assumption . . . that
because such positions might have been available, the 89 former employees were entitled to have them in
preference to others." Under ordinary circumstances former employees usually receive preference over
new employees. However, the respondent misinterprets the meaning of the above finding. The purpose
of the section set forth above is merely to show that there were jobs available for the complainants upon the
dates indicated and was not intended to show that the 89 employees were entitled to preference over other
applicants for employment.
27 The record reveals that the respondent did not become the owner of the mine and mill until 1933. ,It,
therefore, contends that a comparison between the practice of recalling employees at the mine and mill in
1922 and 1937 is unwarranted. However, the record shows that Thorne, who was in charge of hiring in 1937,
was employed in the same capacity at the mine and mill in 1922. Furthermore, the respondent offered no
evidence to show that the change in corporations resulted in a change in the hiring policy. We, therefore,
believe that a comparison of the hiring policies in 1922 and 1937 is pertinent.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. L. Weaver was 'recalled by long distance telephone call by his
foreman. . The company sent an agent to Bayard, New Mexico, and
asked John Howe to return to work. Ysmael Moreno received a
special delivery letter in Los Angeles , California , containing a rail-
road ticket so that he might return to Santa Rita and enter the employ
of the mining company. In Santa Rita and Hurley the company
sent its agent from house to house . informing former employees to
return to work. It is undisputed that practically all former employees
of the mine and mill who desired employment were able to return to
work upon the reopening of the mine and mill in 1922.
In 1937 the respondent sent its agents among the remaining
residents of Santa Rita and Hurley with a list advising certain former
employees to see Thorne if they desired employment . It also recalled
certain individuals from places outside Hurley and Santa Rita.
However, contrary to the procedure in 1922, none of the complainants
were advised to return to work. In order to make sure that certain
persons did not obtain employment, Thorne specifically instructed
the foremen to send all prospective employees to him and not to the
time office as had been the former practice. Thorne, who was in
charge of hiring in the mining company in 1922, admitted that he did
not make a similar suggestion then. He testified that he did not do
so because he wanted to see who was going to work and because there
was a situation existing in 1937 that did not exist in 1922.
Testifying as to certain former employees, Thorne stated that he
refused to employ them for personal reasons. The cases of these
individuals are discussed below . As to the remaining complainants
who were denied employment , Thorne testified that he refused to hire
them under instructions from R . B. Tempest, since deceased,", but
then general manager of the respondent . This leads us to an analysis
of the instructions issued by Tempest as it is revealed in the record.
(2) Tempest's blacklist'
Prior to the reopening of the mine , W. S. Boyd, executive vice
president of the respondent , conferred with R. B. Tempest , general
manager, concerning the hiring policy to be adopted by the respondent
when the mine and mill reopened. Boyd testified that it had been
reported to him that at the time of the shut-down, or shortly before,
there was a feeling of unrest among the men, and as a consequence
there was some animosity directed against certain officials of the
respondent . He testified that he had also received reports from
Tempest that threats of bodily harm had been made against Tempest,
his family, and other officials of the respondent . When the question
of reemploying the men came . up in 1936, Tempest and Boyd agreed,
29 Tempest died on or about May 7, 1939.
NEVADA CONSOLIDATED COPPER CORPORATION 1197
according to Boyd, that there was no reason for hiring men "who, in
our judgment, had been authors or sympathizers of any movement of
that kind . . . Mr. Tempest did not want to put these men on
and I told him he did not have to. We had been shut down and now
were starting up again. Let us start up again clean, and I told Mr.
Tempest I would not let the decision as to that be broadcast among
others, but put it in his hands and his hands alone, lay the decision
whether or not, iii. his opinion, any individual man formerly in our
employ had had any authorship or been sympathetic with a relation-
ship of 'that kind and Mr. Tempest took that on himself . . . He
made his decision as to certain particular individuals, told Mr. Thorne,
in charge of miring at the mine, and Mr. Hodges, in charge of hiring
at the mill, those certain individuals were not eligible for reemploy-
ment. Except for those, Mr. Thorne and Mr. Hodges were free to
hire who they chose." Boyd -also testified that the "list did not
exclude members of the Union, Local 63" from employment at the
mine and mill.
Boyd's testimony to the effect that Tempest's list did not exclude
from employment members of Local 63, as such, is not borne out by
the record. Thorne testified, and we find, that in October 1936 he
was given a list of former employees and instructed by Tempest not
to employ them. This list was not produced at the hearing. In its
stead Thorne was shown a membership list of Local 63 and requested
to check off the names of those persons who were on Tempest's list.
At the first hearing Thorne checked off from memory the names of
114 individuals on the membership list as being on Tempest's list.
He also checked off six additional names as to whose appearance on
Tempest's list he was in doubt, but as to whom, Thorne testified, he
and Tempest had had some discussion. The nature of this discussion
is not revealed in the record.
At the second hearing Thorne enlarged upon his former testimony
and testified that approximately 60 or 70 per cent of the persons whose
names were on the membership list of Local 63 were also on Tempest's
list. The membership list in question contained 331 names. Thus,
according to Thorne's testimony at the second hearing, there were
between 198 and 231 members of Local 63 on the proscribed list.
Thorne did not name any of these individuals, other than the ones he
had named at the first hearing.
At the second hearing Thorne also recollected that there were 14
individuals whose names were on Tempest's list, who were not on
Local 63's membership list. Thorne deprecated the fact that these
individuals were on the list, stating that "all of them had good char-
acter. Every one of them that I knew, I was willing to employ. In
fact it hurt me that I couldn't employ them." It is significant to
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
note that as to the union members on Tempest's list, Thorne expressed
no such concern.
The respondent contends , in accordance with the testimony of
Boyd, that its inclusion of certain persons on Tempest's list and its
resultant refusal to hire them , was dictated by its conclusion that they
had participated in, or were in sympathy with, conduct inimical to
the welfare of the respondent , and that it was therefore justified in
refusing them employment . We turn now to an analysis of this
contention.
In support of its contention the respondent produced a number of
witnesses who testified as to threats and rumors of threats emanating
from union quarters during the period immediately preceding the
shut-down and shortly thereafter. In brief, there were rumors of
threats of bodily harm directed against certain supervisory officials
of the respondent ; threats that the union men were going to damage
the property of the respondent; and threats that the children of
Tempest and grandchildren of Thorne were to be kidnapped. The
respondent also considers the speeches of union leaders at union
meetings expressing their disapproval of the respondent and its officers,
and the approbation of such speeches by the union members, as evi-
dence of conduct which justified its refusal to hire the union-leaders
and union members.
The effect of -the respondent 's contention is dissipated by the
statements of its counsel and the testimony of its witnesses. At the
first hearing, the following colloquy took place between the Trial
Examiner and the attorney for the respondent:
Q. Was there any violence in connection with the lay-off?
A. No actual violence.
Q. Was anybody assaulted , any foremen or anybody connected
in any official capacity of the , company assaulted at their homes
or on the streets by the unionmen?
A. Not that I am aware of.
Q. Any sabotage in the camp?
A. Only the testimony of Thorne that they had more breakage
in the last few months than before.
Thorne testified that he heard rumors that the union men were
destroying company property and were going to wreck the tracks; to
verify these rumors he personally went out on the tracks and found
switches cocked open ; that this occurred six times in 5 months after
the Union came in; and that it had not previously occurred over a
20-year period . On cross-examination Thorne stated that he was
not trying to establish that the Union was connected with these acts
and that as far as he knew they had no connection whatever with
the Union.
NEVADA CONSOLIDATED COPPER 'CORPORATION 1199
Juan Serna, a deputy sheriff and watchman for the respondent,
testified as to the breaking of windows and the destruction of property
in company-owned houses after the shut-down. On cross-examination
he admitted that no one was arrested for such acts. There is no
showing that this damage was in any way connected with the Union
or its members. James K. Blair, in charge of the respondent's
watchmen, testified that no property damage -was reported to him
and that he was not sure that any property of the respondent was
damaged.
Fred Stevenson, a non-union employee, made certain charges of
sabotage against J. I. Kemp and Ira Hicks, union members. The
charges against Kemp had to do with the condition of valves in and
around. the compressor where both men worked, Stevenson charging
that Kemp left open valves which should have been closed and closed
valves which should have been opened; and that their condition was
dangerous to the life of the man relieving Kemp. The record shows
that Stevenson reported these incidents to his superior, Pearson, but
that Kemp was retained by the respondent up to the time of the shut-
down. There is no evidence that Pearson ever mentioned the com-
plaint to Kemp. Nor is there evidence that the respondent refused
Kemp employment upon the reopening of the mine for this reason.
Stevenson admitted his hostility toward the Union and also admitted
that some personal animosity existed between himself and Kemp.
Stevenson also testified that Hicks allowed a gate leading to Steven-
son's company-owned house to remain open so that stray animals
might wander in the yard and destroy the vegetation therein. Assum-
ing that Hicks left Stevenson's gate open, it appears that this action
was merely an incident occasioned by a personal squabble between
Hicks and Stevenson of which the respondent had no knowledge.
In view of the entire circumstances, we are of the opinion that the
improper actions of Kemp and Hicks, if any, related by Stevenson,
bad nothing to do with the respondent's determination to exclude
anyone from its employ upon the reopening of the mine.
In view of the evidence set forth above, and the entire record, we
conclude that the asserted property damage played no part in the
determination of the respondent, to exclude from its employ the union
members on Tempest's list.
We now turn to a consideradon of the contention that the com-
plainants were refused employment because rumors had been preva-
lent that they were going to inflict personal injuries upon the respond-
ent's officers and members of their families. While there is no
evidence of a threat having been made by any complainant to any
of the respondent's officers or members of their families, the record is
replete with testimony respecting rumors of such threats. The facts
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which stand out from the mass of such testimony are that nobody
was injured or harmed, and that no investigation of any such rumors
was ever made. Thorne conceded that there were no acts of violence
directed against the respondent's officers and that no attempts were
made upon either his or Tempest's life.
In view of the entire circumstances we are persuaded that the
rumoced threats of personal injury or bodily harm directed against
the respondent's officers was not the motivating factor behind the
compilation of Tempest' s list. This becomes evident when it is
remembered that there were no more than 8 or 10 individuals con-
nected with such rumors, while several hundred persons were named
on the blacklist. The cases of the complainants who were directly
connected with 'the rumors are discussed below.
The above contentions being without merit, the respondent is
reduced to the assertion that the great majority of the complainants
were denied employment because they were in sympathy with the
remarks, hostile to the respondent, evidenced by testimony that union
members applauded the haranguing of union leaders and failed to
assert their disapproval of certain provocative statements made.by
union speakers at union meetings. Such acts, described by the re-
spondent as constituting just grounds for the refusal to hire such
complainants, are in essence concerted activities on the part of union
members.
From an analysis of the evidence set forth above and the entire
record we are convinced that the respondent's real objection to the
persons on Tempest's list was their participation in activities on behalf
of the Union. We are strengthened in this conclusion by the follow-
ing testimony of Thorne and the testimony of certain of the Santa
Rita complainants.
Testifying as to certain former employees on Tempest's list, Thorne
stated that he would have denied them employment even if they had
not been on Tempest's list because they were lacking in "character." 29
In discussing these individuals Thorne testified that he included
"agitation" as an attribute of character and that this agitation began
in the summer of 1934 at the time when the Union became most active
in the solicitation of members. He also testified that "peacefulness"
was a condition to be desired and that former employees who were
engaged in agitation prior to the 1934 shut-down were not peaceful,
hence, undesirable employees. , On cross-examination Thorne ad-
mitted that while ordinarily he could judge an employee's character
rather quickly, he had been fooled as to several individuals whom he
2 The following complainants were specifically mentioned by Thorne as lacking character : Antonio Cruz,
Joseph Beck , V. H. Crittenden, Joseph Beck , and J . L. Robertson . These individuals are further discussed
below.
NEVADA CONSOLIDATED COPPER CORPORATION 1201
had refused to hire in 1937. Upon being queried as to when he had
learned he had been fooled, Thorne testified as follows:
A. When all the ill feeling and antagonism started in the camp,
I found out.
Q. That is when you acted on the particular man who testified?
A. Yes, but I don't think I would have been fooled if the men
had been left alone. Whitley and Tutsbery, outside organizers,
were making promises they knew they could not fulfill . . .
Q., The final proof of character of the men was in following
Tutsbery and Whitley in joining an outside organization?
A. That had much to do with it.
It is clear from the testimony of Thorne that he would have refused
to hire certain individuals on Tempest's list because of their con-
certed activities on behalf of Local 63. The testimony of the individ-
ual Santa Rita complainants regarding their attempts to obtain
employment after the reopening of the mine in 1937 further reveals
that Tempest's list was designed primarily to prevent the employ-
ment of former employees who were members of Local 63 and who
had engaged in union activities.
Ray Gumfory testified that when he applied for work in January
1937 he was told by Harvey Forsythe, a foreman, "You are wasting
your time. There is no work for you, Andy was active in the union."
Andy Gumfory was a cousin of the complainant and was, at one time,
president of Local 63. He was on Tempest's list. Forsythe, although
called..as a witness for the respondent, did not deny the testimony of
Gumfory. Elmer Hunter testified that Harold Moses, the pit fore-
man, told him in March 1937, "If he had anything to do with the
union it would be a cinch that he would never get a job there."
Hunter was on Tempest's list and was denied employment. His
testimony was not controverted. T. B. Benjamin, a former employee,
was approached in 1936 by Neutard, boiler maker foreman., and asked
whether he wanted to go back to work. Benjamin replied that he
did. Later Neutard came back and said there was nothing to do,
that they were not putting on any union men. Benjamin was also on
Tempest's list.
The respondent contends that evidence showing that it hired a
number of union men in 1937 refutes any implication that it dis-
criminated against members of Local 63 on Tempest's list.30 The
mere fact that the respondent hired union members does not support
this contention. The evidence does not show that all union members
30 Evidence introduced by the respondent shows that in February 1937 it had hired at Santa Rita 32
former employees who were members of Local 63 ; and that it had hired 15 members of Local 63 who were
not former employees , making a total of 40 union members employed as of that date. At Hurley the re-
spondent had hired 18 former employees who were members of Local 69, and 12 members of Local 69 who were
not former employees , making a total of 30 union members employed as of February 1937.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were actually active or that the respondent was aware of the names of
all union members . In view of the entire circumstances we are of
the opinion that the facts do not support the respondent 's contention.
The evidence as to the make -up of the list showing that practically
all were union men and that between 198 and 231 members of Local
63 were included on the list ; the testimony of Thorne indicating that
the respondent was definitely hostile toward persons who had agitated
on behalf of the Union ; the fact that the respondent placed certain
persons on Tempest's list because they attended union meetings and
did not disapprove the allegedly provocative statements made by the
leaders of the Union ; our analysis and rejection of the remaining
contentions raised by the respondent in justification of its placement
of,certain individuals on the list of persons not to be hired ; together
with the testimony of the individual complainants clearly reveals,
and we find , that Tempest's list was a blacklist of former Santa Rita
employees who had engaged in or were suspected of engaging in
concerted activities on behalf of the Union.
3. The refusals to hire at Santa Rita
We have found that the respondent established a blacklist of former
Santa Rita employees who were active, or were thought to be active,
union adherents . Of the 68 Santa Rita complainants , 55 were on
Tempest's blacklist. Of the 55 blacklisted complainants, Thorne
testified that he would have denied employment to six of such com-
plainants even though they had not been blacklisted . 31 The respond-
ent further contends that 15 additional persons on Tempest's blacklist
were not discriminated against because they failed to apply for
employment within a reasonable time after the reopening of the
mine.32 The respondent also offers other defenses with respect to
three additional individuals . 33 The cases of these 24 individuals,
concerning whom the respondent raises specific defenses , as well as
the 13 individuals who were not on the blacklist will be discussed
below.34
a. Individuals who were blacklisted and as to whom no specific
defense was raised
The respondent offers no specific defense for the refusal. to hire 31
complainants on the blacklist other than those defenses which we
3' These individuals are Kemp, Cruz , Beck , Crittenden , Robertson , and Smith. See Section III B 3 b,
infra.
32 These individuals are Horcasitas , Kirker, Dull, Apodaca, Vera, Sias , Wedell, Cooley , Arostique,
Huerta , Misquez , Carr, Hobbs , Garcia, and Padron. See Section III B 3 c, infra.
33 These individuals are Lee Goetz , J. L. McCraney, and Jesus Saenz. See Section III B 3 b, infra.
34 The cases of 12 of these individuals are discussed in Sections III B 3 d III B 3 e, infra . The case of
David Saenz is discussed in Section III B 6 , infra.
NEVADA CONSOLIDATED COPPER CORPORATION 1203
have considered above and found to be without merit." The record
shows that these 31 complainants applied for employment shortly
before or within a reasonable time after the reopening of the mine and
that they were denied employment. At the time such individuals
applied for employment the respondent was hiring a large number of
new employees whose positions the complainants could have filled.
In view of these circumstances and the entire record we find that the
respondent, by refusing to hire the persons herein listed in Appendix B,
discriminated against them in regard to their hire and tenure of
employment, thereby discouraging membership in the Union.
b. Individuals who allegedly would have been refused employment
even though they were not on the blacklist
Thorne testified that he would have refused employment to Joseph
Beck, V. H. Crittenden, Antonio Cruz; Joseph Kemp, and J. L. Robert-
son, even though they were not on the blacklist, because they were
directly connected with the rumors set forth above. As to Kenneth
Smith, Jesus Saenz, J. L. McCraney, and Lee Goetz, likewise on the
blacklist, Thorne also raised objections which assertedly would have
barred them from employment even though they had not been black-
listed. We shall proceed to a discussion of these individuals.
Joseph I. Kemp was considered by Thorne as a competent employee
so far as his work was concerned, but, according to Thorne, he lacked
"character" and would not work in harmony with other employees.
For these reasons, Thorne testified, he was refused employment.
It appears that Kemp was one of the originators of Local 63 and
took the initial step in its organization. It was Kemp who contacted
the International representative and began the organization of the
Union in the spring of 1934. Kemp was elected financial secretary and
treasurer of Local 63 and was on the committee representing the
Union which saw Tempest relative to recognition. He testified, and
we find, that he "was most active" in getting the union charter.
We have heretofore noted that Thorne's conception of "character"
included such traits as "peacefulness" and excluded such traits as
"agitation, following outside organizers, and joining an outside organ-
ization." We are convinced by the tenor of Thorne's testimony
that what he really objected to was Kemp's union activities.
We find that the respondent, by refusing to hire Kemp, discrimi-
nated against him in regard to his hire and tenure of employment
thereby discouraging membership in the Union.
Antonio Cruz was also refused employment, according to Thorne,
because he was "constantly agitating and constantly exciting the Mexi-
cans." Cruz agitated and excited the Mexicans by securing their par-
es These individuals are herein listed in Appendix B.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticipation in the activities of the Union. We, therefore, conclude that
Cruz was denied employment by Thorne because of his union activities.
We find that the respondent, by refusing to hire Cruz, discriminated
against him in regard to his hire and tenure of employment, thereby
discouraging membership in the Union.
Joseph Beck. Thorne testified that he believed Beck was of the
same character as Cruz and was, therefore, refused employment.
According to Thorne, "he was not peaceful and did a lot of agitating,"
and was also connected up with a great many rumors.
For the reasons set forth in the case of Cruz, and on the basis of
the entire record, we find that the respondent, by refusing to hire
Beck, discriminated against him in regard to his hire and tenure of
employment, thereby discouraging membership in the Union.
V. H. Crittenden, admittedly a competent workman, was undesirable
according to Thorne, because it was rumored that Crittenden had
said that "when the union got in control in Santa Rita all non-union
men were going down the canyon, and Captain Thorne would be lead-
ing them." Thorne admitted that he made no attempt to confirm
the rumor, and we do not find, on the record before us, that Crittenden
made such a statement. Moreover, the statement, if made, was in
furtherance of the activities of the Union. In view of Thorne's
failure to investigate the rumor before passing judgment on Critten-
den, and in view of Thorne's attitude towards the Union as disclosed
by the entire record, we find that Thorne's refusal to hire Crittenden
was motivated by his desire to prevent the Union from obtaining an
effective organization in Santa Rita. - We therefore find that Crit-
tenden was refused employment because of his union activities.
We find that the respondent, by refusing to hire Crittenden, dis-
criminated against him in regard to his hire and tenure of employment,
thereby discouraging membership in the Union.
J. L. Robertson testified that he applied for work by letter in
March or April 1937 to his former foreman, Harold Moses, and to the
respondent's timekeeper, Joe Hines, but that he received no reply.
This testimony was not denied. Thorne testified that even had lie
applied in person, he would not have received employment because
he was an "undesirable employee, connected up with threats of
violence to property and person." As in the case of Crittenden,
Thorne admitted that he made no attempt to confirm the rumors
concerning Robertson. We do not find that Robertson matle any
threats against the respondent's property or personnel. Robertson
was one of the officers elected by the Union in August 1935, and
was on Tempest's list. In view of the above circumstances, and in
the light of the entire record in the case, we find that Robertson was
refused employment because of his union membership and activities.
NEVADA CONSOLIDATED COPPER CORPORATION 1205
We find that the respondent, by refusing to employ Robertson,
discriminated against him in regard to his hire and tenure of employ-
ment, thereby discouraging membership in the Union.
Kenneth Smith, a member of Local 63, was denied employment,
according to Thorne, because he was 'a mediocre workman and
"besides during the shut-down he destroyed company property, tore
steps off the house and used it for firewood which was unnecessary.
If I knew they were that hard up, I would have sent them coal
myself."
On cross-examination by the Board's attorney, Thorne testified as
follows:
Q. If you had known he needed fuel so badly, you would have
sent him coal?
A. Certainly . . .
Q. That was the reason he wasn't employed?
A. Well, he was just a mediocre employee . . .
Q. Which was the main reason . . .
A. Both, a little more his ability as a workman. I felt sorry
for his family. I always got complaints about him.
Q. Those complaints started before the shut-down?
A. No.
From the tenor of Thorne's testimony, we are convinced that the
destruction of company property was not the real reason for the
respondent's refusal to hire him.
With respect to the charge that Smith was a poor worker, it appears
that he had been working off and on for the respondent since 1923.
He testified that his work had never been criticized. The respondent
introduced no evidence in support of Thorne's assertion that Smith
was a mediocre employee. The record shows that lie received two
service letters from the respondent.
In view of the facts set forth above and the fact that Smith was
on Tempest's blacklist, a list which did not contain the names of
employees whose only shortcoming was "mediocrity," we find that
the respondent, by refusing to hire Kenneth Smith, discriminated
against him in regard to his hire and tenure of employment, because
of his union membership and activities, 'thereby discouraging mem-
bership in the Union.
J. L. McCraney was first employed at the respondent's mine in
1923 as a steam shovel fireman. He subsequently received two pro-
motions and at the time of the 1934 shut-down was working as a
crane operator. He was a member of Local 63, having joined in the
spring or summer of 1934, and was on Tempest's blacklist.
In March or April 1937, McCraney applied for employment to his
former foreman, Harvey Forsythe. According to McCraney, For-
323429-42-77
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sythe told. him, "we are not putting back any of the old men, the
union men," and that if he had anything to do with the Union it would
not be any use applying to Thorne for employment. McCraney
testified that because of this advice he failed to make a personal
application to Thorne. Forsythe admitted, that McCraney applied
to him for a position but denied the remaining testimony of Mc-
Craney. We do not credit his denial. McCraney's testimony is in
accord with the undenied testimony of Gumfory, who also quoted
Forsythe to the effect that it was useless for union men to apply for,
work. Moreover, the statements attributed to Forsythe by Mc-
Craney and Gumfory are in accordance with the respondent's gen-
eral policy, as disclosed by the entire record, of refusing to hire union
men on Tempest's list. We find that Forsythe made the statements
attributed to him by McCraney, as recited above.
We are of the opinion that McCraney's approach to Forsythe con-
stituted an application for employment and that Forsythe's admoni-
tion that it was useless for McCraney to apply to Thorne constituted
a refusal to hire within the meaning of the Act:
We find that the respondent, by refusing to hire McCraney in
March or April 1937, 'discriminated against him in regard to his
hire and tenure of employment, thereby discouraging membership
in the Union.
In the spring of 1938, McCraney applied to Thorne for work but
was denied employment. Thorne testified that he refused McCraney
employment because he had heard that he was already employed at
the Phelps-Dodge mine in Ajo, Arizona. Thorne also testified that
it was the policy of the company not to deprive other companies of
its employees except in rare cases. On cross-examination Thorne
admitted that Frank Gwyn, a driller, Leon Keyes and Bill Blaine,
locomotive engineers, and Fay Archie, a shovel engineer, were recalled
by the respondent upon the reopening of the mine and mill even though
they were working for other companies. The positions of the above-
mentioned persons are analagous to the position held by McCraney
prior to the 1934 shut-down. The record also shows that Keyes was
employed at the Phelps-Dodge mine when he was recalled by the
respondent. While McCraney had been working for the respondent
up to the time the mine was shut down in 1934, Keyes had not worked
for the respondent since 1932, while Blaine and Archie had been laid
off or had quit prior to the 1934 shut-down. These facts indicate
that McCraney was a more valuable employee than the afore-men-
tioned individuals. The fact that McCraney had been promoted
twice during his employment with the respondent serves to strengthen
our conclusion in this respect. In view of the entire circumstances
NEVADA CONSOLIDATED COPPER CORPORATION 1207
we are of the opinion, and so find, that McCraney was refused employ-
ment in 1938 because of his union activities and membership.
We find that the respondent, by refusing to hire McCraney, dis-
criminated against him in regard to his hire and tenure of employment,
thereby discouraging membership in the Union.
Lee Goetz; a member of Local 63, started working at the respondent's
mine in 1923 as a brakeman. He was later promoted to the position
of locomotive engineer, which position he held at the time of the 1934
shut-down.. He applied for work in January 1937 but was denied
employment. Thorne testified that he did not employ Goetz because
he believed that he could obtain a .more efficient employee. The
record does not disclose who, if anybody, Thorne obtained to replace,
Goetz. In view of the fact that Goetz was on Tempest's blacklist
and Thorne could not have employed him in any event, we are of the
opinion that Thorne's alleged reason for,refusing to hire Goetz was
not the true one, and that in fact he was denied employment because
of his union membership and activities.
We find that the respondent, by refusing to hire Goetz; discriminated
against him in regard to his hire and tenure of employment, thereby
discouraging membership in the Union.
Jesus Saenz, a member of Local 63, did not apply for employment
upon the reopening of the mine. He testified that he did not do so
because his three sons had applied for work and were not hired.
Thorne testified that while Saenz was an excellent powderman, he
had been discharged twice for being drunk on the job. On the first
occasion he was discharged for handling explosives while drunk; the
second time he was not handling explosives but fell asleep on the job.
Thorne testified that he rehired Saenz on both occasions upon his
promise to quit drinking. On the last occasion, according to Thorne,
it was mutually agreed that if Saenz became intoxicated again he
would be automatically discharged. Thorne testified that he saw
Saenz drunk off the job in October 1934. While it appears that the
mine was not 'operating in October 1934, Thorne testified that he
believed that Saenz, by becoming intoxicated, had automatically
discharged himself, and thereby eliminated himself from consideration
for employment when the mine reopened in 1937. Thorne also stated
that "he could not see where [Saenz] would be safe handling powder."
Saenz did not deny the above testimony of Thorne.
While the case is somewhat in doubt, we find that Jesus Saenz was
refused employment for reasons other than his union membership or
activities.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Blacklisted individuals who allegedly failed to apply for work
Julian Horcasitas, Rafael Kirker, Juan Vera,36 and Simon Sias
testified that they did not apply for work when the mine resumed
operations in 1937 upon being advised by other former employees
that it was useless for union men, like themselves, to apply for work.
In view of the fact that all of said employees were on Tempest's
blacklist, it is clear that they would have been refused employment
even though they had applied.
The case of Sias is typical of the cases of the other individuals.
Sias testified that he was in California at the time of the reopening of
the mine and was advised by his relatives in Santa Rita that it was
useless for union men to apply for work. At the hearing Thorne
admitted that he would not . have hired Sias even though he had
applied because of the .fact that he was on Tempest's blacklist.
Since Thorne also admitted that he carried out the instructions of
Tempest not to employ the persons on the blacklist, we find that
Horeasitas, Kirker, and Vera, like Sias, would have been refused
employment pursuant to the respondent's policy of blacklisting
members of the Union, even though they had made prompt
application.
Under the circumstances, the. failure of the part of the above-
named complainants to apply for work being caused by the respond-
ent's unfair labor practices in refusing to hire persons who were union
members, and such practices being well known to the complainants,
we hold that applications by them were unnecessary to place the
respondent in default.37
We find that the respondent discriminated in regard to the hire
and tenure of employment of Horeasitas, Kirker, Vera, and Sias
because of their union membership and activities, thereby discourag-
ing membership in the Union.
Charles Wedell. The respondent contends that Wedell failed to
apply for employment after resumption of operations in January
1937. The record shows that Wedell, an active member of the
Union, applied to Thorne in March or April 1937 and asked him
whether it was any use to make an application for employment.
Thorne replied that there was nothing for him, but that if he cared to
he could make out a written application for employment at the office.
Wedell did not make out such a written application for employment.
It appears that Wedell was on Tempest's blacklist and that the
respondent was hiring new employees on or about the time that
*6 Referred to on the respondent's pay roll as Juan Bero.
77 See Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers,
7 N. L. R. B. 1212, aff'd in National Labor Relations Board v. Sunshine Mining Company, a corporation,
110 F (2d) 780 (C. C. A. 9); Matter of Carlisle Lumber Company and Lumber and Sawmill Workers Union,
etc., 2 N. L. R. B. 248, aff'd in 94 F. (2d) 138 (C. C. A. 9) and 99 F. (2d) 533 (C. C. A. 9).
NEVADA CONSOLIDATED COPPER CORPORATION 1209
Wedell applied to Thorne. We are convinced by the entire record
that had he not been on Tempest's blacklist, Wedell would. have been
employed by the respondent.
We find that the respondent, by refusing to hire Wedell, discrim-
inated against him in regard to his hire and tenure of employment
because of his union membership and activity, thereby discouraging
membership in the Union.
T. H. Cooley, a member of Local 63 and on Tempest's blacklist,
was last employed by the respondent as a pressure engineer. He
applied for employment on or about April 25, 1938, but was not hired.
He testified that he did not apply sooner because lie expected the
respondent to recall him if it desired his services. He stated that
his. employment record indicated to the respondent where he could
have been reached upon the resumption of operations in January
1937. Cooley further stated that the fact that other union men were
not being hired was a factor in his failure to apply for employment.
It appears that the respondent recalled certain former employees
whom it had need of, and that Cooley was capable of performing
work required by the respondent. We are persuaded by the record
that if Cooley had not been blacklisted, he would have been recalled.
In any event, the fact that he was on Tempest's blacklist precluded
him from successfully applying for employment.
We find that by not recalling Cooley upon the reopening of the
mine and mill the respondent discriminated against him in regard to
his hire and tenure of employment because of his union membership
and activities, thereby discouraging membership in the Union.
Asa T. Carr, a member of Local 63 and on Tempest's blacklist,
applied for employment in February 1937. He was told by Joe
Hines, the head timekeeper, that the respondent was not taking any
more applications. He also overheard Thorne telling another appli-
cant for employment the same thing. Carr testified that because of
these two factors, he did not ask Thorne for employment. Thorne
testified that he did not know that Carr was looking for a position and
stated that Carr made no application for employment to him.
Although Hines did not have the authority to hire employees, he
was authorized to take applications for employment. His refusal to
take Carr's application was in essence a refusal to consider Carr for
employment. In any event, due to the fact that Carr was on Tem-
pest's list, we are persuaded that his application for employment
would have been futile. In the light of the foregoing, the entire record,
and the fact that the respondent hired new employees after Carr
endeavored to apply for employment, we find that the respondent
refused to take Carr's application, which was in effect a refusal to
hire him, because of his union membership and activities.
1210 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
We find that the respondent, by refusing to employ Carr, discrimi-
nated against him in regard to his hire and tenure of employment,
thereby discouraging membership in the. Union.
. In 'addition to the afore-mentioned individuals, the respondent
contends that the complaint as to Joseph Beck, V. H. Crittenden,
Frank Dull, Charles Hobbs, Miguel Garcia, Conrado Padron and. J. L.
Robertson, all union members named on Tempest's list, should be
dismissed on the ground that they failed to apply for employment
within a reasonable time after the resumption of operations on
January 1, 1937. As we have noted above, Beck, Crittenden, and
Robertson were denied employment for reasons other than their
alleged failure to apply for work. However, the record shows that
all of the above persons applied for employment shortly before or
after the resumption of operations in 1937.11 It also appears that at
the time they applied, or shortly thereafter, the respondent hired a
number of new employees. We, therefore, find this contention of
the respondent to be without merit.
We find that the respondent, by refusing to hire Hobbs, Garcia,
Dull, and Padron, discriminated against them in. regard to their hire
and tenure of employment, thereby discouraging membership in the
Union.
Dionicio Apodaca testified that he failed to apply for employment
upon the reopening of the mine because the respondent cancelled a
lease covering company-owned property on which his home was
situated, in January 1936. The record shows that beginning in
December 1934 the respondent proceeded to cancel a number of leases
covering company-owned properties on which many former employees
had built their dwellings. It appears that these cancellations were
legal and 'in accordance with the respondent's plan to build company-
owned houses for its employees if, and when, the mine reopened.
The record shows that from January 1935 to June 1938 the respondent
cancelled the leases of 199 laborers. Of these cancellations 37 were
leases of complaining witnesses while the remainder were leases of
noncomplainants. The record also shows that 14 of the complainants'
leases were not cancelled.
We find that the cancellation of Apodaca's lease did not constitute
an unfair labor practice. Under the circumstances, we find that the
respondent has not discriminated against Apodaca in regard to his
hire and tenure of employment.
Juan Arostique and Felipe Huerta failed to apply for employment
at the respondent's mine until November 1937 and January 29, 1938,
respectively. Both testified that they had failed to apply at the
ae The record shows that Beck applied on or about March 4, 1937; Crittenden, November 11,'1936; Dull,
April 1937; Hobbs, May 15, 1937; Garcia, December 1936; Padron, March 15, 1937; and Robertson, March
or April 1937.
NEVADA CONSOLIDATED COPPER CORPORATION 1211
respondent 's mine upon the resumption of operations in January 1937
because they were working at the Asarco mine, a copper mine belonging
to the American Smelting & Refining Company . At the time the
above two individuals applied for employment the respondent was
reducing its force instead of hiring new employees.
Under the circumstances we find that the respondent has not
discriminated against Arostique and Huerta in regard to their hire
and tenure of employment.
Teodoro Misquez was laid off in 1932 and has not worked for the
respondent since that date. He left Santa Rita some time in 1935
or 1936 and , so far as the record reveals , left no forwarding address.
He did not apply for employment until December 1937 , when lie was
told that there was no work available for him. He explained that he
failed to apply earlier because he was working on a Government dam
at Mimbres, New Mexico. The respondent was not hiring employees
at the time Misquez applied for work.
We find that Misquez was not discriminatorily refused employment
by the respondent.
d. Former Santa Rita employees who were not on blacklist
Nine of the complainants who had formerly worked for the respond-
ent at its Santa Rita mine were not among 'those members of the
Union named by Thorne as being on Tempest's blacklist. While it is
clear that there were more persons on Tempest 's list than the members
of the Union acknowledged by Thorne to have been on the list, there
is no clear showing that the following individuals , all of whom were
members of the Union , were on the blacklist. We shall inquire into
each individual case.
Francisco Costales began working for the respondent in February
1923. He worked in various positions until the shut-down in 1934.
During his employment his work had never been seriously criticized.
He was a member of Local 63, having joined sometime before the
shut-down in 1934.
On January 15, 1937, he applied to Thorne for work and was told
that there were no jobs to be had , but that he would be called when
needed. Costales reapplied twice in February. Upon the last occa-
sion, Thorne advised him to go to the timekeeper so that he would
be listed and stated that he would be called at the first opportunity:
Costales did as he was told but was never called by the respondent.
It is clear from the record that at the time Costales made his appli-
cations for employment , the respondent was hiring new employees.
In view of .the facts showing that Costales was a member of the
Union; that there were jobs available at the time he applied for re-
employment;' and no valid reason was offered for the failure to hire
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Costales; and in view of the record as a whole, we find that Costales
was refused employment on January 15, 1937, because of his union
affiliation and activities. By refusing Costales employment, the
respondent discriminated in regard to his hire and tenure of employ-
ment, thereby discouraging membership in the Union.
Juan Cordova, a member of Local 63, was first employed at the
respondent's mine in 1914. He worked as a pit man and on the steam
shovels as an oiler, which position he held at the time of the shut-
down in 1934. • Cordova applied for work in November or December
of 1936 but was told by Thorne that there was no work available.
He also talked to John Hines, the timekeeper, who had him make
out an application for employment. Three days later and at least
once in January 1937, Cordova made himself available by appearing
in front of the time office, but was not recalled. During the time
Cordova applied for employment new employees were being hired.
The respondent offered no reason for, the non-employment of Cordova.
I4r view-of the circumstances showing that Cordova was a member
of the Union; that he applied for employment when the respondent
was hiring new employees; that the respondent offered no valid reason
for refusing to employ him; and in view of the record as a whole, we
find that Cordova was refused employment because of his union mem-
bership and activities. We find that the respondent has discrimi-
nated against Cordova in regard to his hire and tenure of employment,
thereby discouraging membership in the Union.
John Howe and Orvil Waggoner. Howe was first employed at the
respondent's mine in 1913. He held the position of locomotive engi-
neer for a period of 21 years. He joined Local 63 in April 1934 and
was active in the solicitation of members. Waggoner, a member of
Local 63, had been employed at the respondent's mine for 11 years
prior to the 1934 shut-down. Both Waggoner and Howe were mem-
bers of the Union who had been checked off by Thorne as persons
whom he had discussed with Tempest, but as to whose presence on
the blacklist Thorne was in doubt.
In December 1936 Waggoner asked Thorne whether there was any
possibility of obtaining employment. Thorne replied in the negative.
Later Waggoner applied for work at the Hurley mill and was told by
Hodges' secretary that the fact that he was a member of the Santa
Rita union would not help him get a job. Waggoner was never
employed by the respondent.
On January 17, 1937, Howe applied for work at the respondent's
mine but was not hired. In the latter part of January he saw Tem-
pest and asked him for work, and was told, "Your age is against you
. . . I will look after it and see that you get a job." Tempest
failed to live up to his promise. Howe applied again by letter in
NEVADA CONSOLIDATED COPPER CORPORATION 1213
February 1937, but received no reply to his letter. In November
1937 he saw Thorne and asked him if Tempest had left any notice for
him to return to work. Thorne replied that he had not but he would
take the matter up with Tempest. Howe was never employed by the
respondent.
The respondent contends that Howe was refused employment
because of his age. The record does not support this contention.
.From Tempest's statement set forth above it appears that he-was
apparently willing to hire Howe despite his age. Furthermore, the
evidence shows that the respondent retained a number of employees
who were over the "industrial age" and that age, in and of itself, was
no bar to employment.
In view of the entire circumstances we find that the respondent,
by refusing to hire Howe and Waggoner, discriminated against them
in regard to their hire and tenure of employment, thereby discouraging
:membership in the Union.
Charles Johnson, a member of Local 63, started working at the
respondent's mine in June 1925. He worked intermittently as a
brakeman until 1932. From June 1932 until October 20, 1934, he
was employed by the respondent as a night watchman. In February
1937 he applied for employment by letter, being employed at the
Phelps-Dodge mine in Ajo, Arizona, at the time. He received a
reply from Thorne telling him that there was no job available.
Thorne admitted receiving Johnson's application, but testified that
lie did not employ him because Johnson was employed at the Phelps-
Dodge mine. He stated that it was the policy of the respondent not
to deprive another company of its workers unless there was a special
skill involved. Johnson's work for the respondent prior to the shut-
down did not require any special skill.
We find that the respondent has not discriminated against Johnson.
Rafael Lardisabel joined Local 63 on March 27, 1934. He had
been employed by the respondent from 1910 until 1934 as a black-
smith. Lardisabel was 77 years old and at the hearing admitted that
he was unable to work as a blacksmith because of poor eyesight. , He
testified that because of his eyesight he had not applied for his former
position.
We find that Lardisabel was not discriminatorily denied employ-
ment by the respondent.
Jesus Martinez, a member of Local 63, entered the employ of the
respondent in 1919. He worked steadily until 1932, when the
respondent reduced force. Since 1932 he has worked only 11 days
for the respondent. He did not apply for work on the reopening of
the mine in 1937, explaining that he did not do so because of the fact
that his union friends were not able to obtain employment. It was
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not, until January 1938 that he applied for employment and. at that
time he. was told that there was no work. It appears that in January
1938 the ' respondent was gradually reducing its force.
,,There is no substantial showing that Martinez would have been
refused employment had he applied upon the reopening of the mine
in.1937. . We find, therefore, that he was not discriminatorily refused
employment by the respondent.
Antonio Sierra,, a member, .of Local 63, first started to work for
the respondent.in 1918., ;He saw .Thorne.in June 1937 and asked for
employment., Thorne,advised him to see Joe Hines, the timekeeper,
and put in his application. Sierra testified that he was unable to see
Hines and therefore did not apply for work. He did not otherwise
try to, obtain employment, stating that other union employees were
not given work and he therefore felt that it was useless. On November
17,;1939,Sierra was hired by the-respondent.
We find that Sierra was not discriminatorily refused employment-.
by the, respondent.
Aurielo Chavez, a member of Local 63, commenced working for the
respondent in 1924. At the time of the shut-down he was working
on the tracks. . On. November 23, 1936, just before the mine reopened
he: was called for by the respondent but was not available. Later, on
February, 18,:1937, he tried to see Thorne about a position but was
unable to, do so. Other than this attempt, Chavez did not apply for
employment. On December 17, 1939, he was hired by the respondent.
Under these circumstances, we find that Chavez was not discrim-
inatorily refused employment by the respondent.
e. Refusals to hire. new applicants who were not on blacklist
Three of the Santa Rita complainants had never previously been
in the employ of the respondent. It is claimed that they were
discriminatorily denied employment because their relatives were
members of the'Union and prominent in its activities.
Raymond Horcasitas was the son of Eustacio Horcasitas, who was
a member of Local 63 and on Tempest's blacklist. When Raymond
applied for work on November 17, 1936, Thorne asked him who he
was. Raymond replied that he was the son of Eustacio. Thorne
then told him that there was no chance for employment. On Decem-
ber 10, 1936, Raymond applied for work at Hurley but was not given
employment.. Other employees, mostly new men, were being hired
during the times when Horcasitas applied for employment. The
respondent offered no reason for the failure to hire Horcasitas.
In. view of the conversation between Horcasitas and Thorne, the
showing that there were jobs available when Horcasitas applied for
employment, and the fact that no reason was given for refusing him
NEVADA CONSOLIDATED COPPER CORPORATION 1215
employment, and in view of the entire record, we find that Horcasitas
was denied employment by the respondent because of the membership
and activity of his father, Eustacio Horcasitas.
We find that the respondent, by refusing to hire Raymond Horca-
sitas, discriminated against him in regard to his hire and 'tenure of
employment, thereby discouraging membership in the Union.39
Ray Gumfory was the cousin of Andy Gumfory, president of Local
63, and the son of 0. M. Gurnfory, a member of the Local. ` Both
Andy and O. M. Gumfory were on Tempest's blacklist.
Shortly after the mine reopened, in January 1937, Ray put in his'
application for employment with the timekeeper. Thereafter he saw
Thorne and again applied for work. Thorne told him that at that
time the respondent was not hiring anybody but boilermakers. The
record shows that the respondent hired several hundred employees in
January. We do not believe that they were all. boilermakers. As
we have noted above, when Ray applied for work in. January 1937,
Harvey Forsythe, the foreman, told him, "You are wasting your time
and money looking for a job. Andy was too active in the Union."
This testimony was not denied. We find that the respondent refused
to employ Ray Gumfory because of. the union activities and affilia-
tion of his relatives.
We find that the respondent, by refusing to hire Ray. Gumfory,
discriminated against him in regard to his hire and tenure.of employ
ment, thereby discouraging membership in the Union.40
Gilbert Saenz had never previously been employed by the respond-
ent. He is the son of Jesus Saenz and the brother of Samuel Saenz,.
both of whom were members of the Union and on Tempest's list. He
applied for employment in December 1936, and was told that there
was nothing doing. Several days later Saenz, in reapplying for em-
ployment, stood in line with a group of other employees who were
waiting to be interviewed by Thorne. While the person in front of
Saenz and the person behind him were hired,,Saenz was not given
employment. Saenz was given no .explanation. for this refusal.
The record does not disclose that the respondent was aware of Saenz's
identity at the time he applied for employment.
We are of the opinion that record does not support.the.allegations
of the complaint with respect to Gilbert Saenz. We therefore find
that Saenz was not discriminated against by the respondent.
39 See National Labor Relations Board v. Fashion Piece Dye Works, Inc., 100 F: (2d) 304 (C. C. A. 3 ) enfor.c-
ing Matter of Fashion Piece Dye Works, Inc. and Federation of Silk and Rayon Dyers and Finishers of America,
1 N. L. R. B. 285 ,6 N. L. R. B. 274; Matter of Mansfield Mills, Inc. and Textile Workers Organiiin y Coininittee,
3. N. L. R. B. 901.
49 Ibid.
1216. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
f. Conclusions with respect to the refusal to hire the Santa Rita
complainants
We have examined the evidence concerning the Santa Rita com-
plainants and have found that the respondent discriminated in regard
to the hire and tenure of employment of 56 of the complainants. We
find that by such discrimination in regard to the hire and te:lure of
employment of the individuals mentioned above, the respondent
discouraged membership in the Union, and interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
by Section 7 of the Act.
We find that the respondent has not discriminated against Dionicio
Apodaca, Juan Arostique, Felipe Huerta, Teodoro Misquez, Jesus
Saenz, Charles Johnson, Rafael Lardisabel, Jesus Martinez, Gilbert
Saenz, Antonio Sierra, and Aurielo Chavez, in regard to their hire
and tenure of employment within the meaning of Section 8 (3) of
the Act.
4. The refusals to hire at Hurley
The complaint alleges and the answer denies that the respondent
discriminated in regard to the hire and tenure of employment of 21
named individuals formerly employed or seeking employment at the
Hurley mill.
The testimony of Boyd, executive vice president of the respond-
ent, reveals that Hodges, the superintendent at the Hurley mill, was
supplied with a copy of Tempest's blacklist. Hodges was noi; called
as a witness for the respondent to deny or affirm the testimony of
Boyd. We therefore conclude that he was furnished with the black-
list. It is also clear from the testimony of individual complainants
formerly employed at Hurley that the respondent was practicing the
same form of discrimination against union members at Hurley that it
practiced at Santa Rita.
Carlos Elvira, a former employee at the Hurley mill, testified that
in a conversation with his carpenter foreman, Hill, sometime a'ter the
reopening of the mill, he was told that Hodges would do nothing for
him because he had been a member of the Union. The respondent
did not controvert this testimony. On November 8 or 9, 1936,
Manuel Martinez, a Hurley mill employee, was told by his former
foreman, Early, that Hodges wanted to see him about work. Mar-
tinez went to see Hodges and was asked why he joined the Union.
Martinez replied that he joined the Union in hopes of getting better
working conditions. Hodges then inquired as to what Martinez
thought of the Union. To this Martinez replied, "To tell the truth,
I don't know if we are in the Union or not . . . but if itr comes
back, I am a union man." Hodges then informed him that his services
NEVADA CONSOLIDATED COPPER CORPORATION 1217
were not needed. Sometime later Martinez was told by Early that
he "talked back to Hodges" and that therefore he was not given a
job. Martinez protested and stated that he only told the truth, but
that perhaps he made a mistake and he would like to get a job. Early
then told him to return to Hodges. Martinez did so and informed
Hodges that Early had sent him over for a job. Hodges remarked
that he tought Martinez told him he was a union man. Martinez
then lied and said, "I don't know what union you are talking about,
the company union or any other." Martinez was then employed
by the respondent. The testimony of Martinez remained uncontra-
dicted on the record. Thomas Zamora testified that he was told by
his former foreman, Claude Danley, that the fact that he belonged
to the Union probably accounted for his not getting work. This
testimony was not controverted by the respondent.
We find from the evidence set forth above that the respondent
actively engaged in a policy of discrimination against former Hurley
employees because of their union membership and activity. We
shall now turn to a discussion of the individual cases.
Gregorio Arispe, a member of the Local at Santa Rita, applied for
work at the Hurley mill in January 1937. He testified that after he
was hired, but before he went to work, Hodges asked him where he
had come from. Arispe told Hodges that he came from Santa Rita.
Hodges then refused to allow him to go to work. No reason was
given for this refusal. Sometime later, Arispe applied for work at
Santa Rita but was not hired, At the time of his application for
employment at both Santa Rita and at Hurley, new men were being
hired by the respondent.
Hodges' refusal to allow Arispe to work, coming as it did, imme-
diately following the disclosure that lie was from Santa Rita, together
with the fact that the respondent was discriminating against union
members, convinces us, in the absence of any explanation by' the
respondent, that Arispe was discharged or denied employment by
the respondent because of his membership in the Santa Rita local of
the Union.
We find that the respondent discriminated in regard to Arispe's
hire and tenure of employment, thereby discouraging membership in
the Union.41
Primitio Arrey, a member of Local 69, was first employed at the
respondent's Hurley mill in 1923. He worked steadily as a general
laborer until the 1934 shut-down. His work had never been seriously
criticized.
4' See Matter of Knoxville Publishing Company and American Newspaper Guild, The Knoxville Newspaper
Guild, 12 N . L. R. B. 1209.
J2 1 ;8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. in January 1937, upon the reopening of the mill, Arrey applied
for work to Hodges, who asked him to make out an application.
Arrey complied with this request but did not receive employment.
Thereafter Arrey made several other attempts to secure. employment
at the Hurley mill but was unable to do so: During the period when
Arrey was seeking employment, new employees were being hired by
.the respondent. The respondent offered no reason for its failure to
employ Arrey.
We find that the respondent, by refusing to hire Arrey, d.iscrimi-
nated.aga.inst him in regard to his hire and .tenure of employment
because of his Union membership and activity, thereby discouraging
membership in the Union.
Felipe Avalos, a member of Local 69, started working for the respond-
ent at its Hurley mill in September 1922 and continued working
until. the 1934.shut-down. He was last employed as an operator of
the,screens on the rock crusher. During his employment his work
,was never seriously criticized.
In April 1.937 Avalos asked his former foreman, Ben Gray, for
employment and was told that Hodges did not want to give him work.
The respondent: offered no explanation for its refusal to employ
Avalos:: At the time Avalos applied for employment, the respondent
was, hiring new employees.
We find that the respondent, by refusing to hire Felipe Avalos,
discriminated against him in regard to his hire and tenure of employ-
ment, because. of his union membership and activity, thereby discou. r-
aging membership in the Union.
Marcelo Avalos, a trustee of Local 69, was first employed by the
respondent at its Hurley mill in 1911. He worked intermittently
.from 1911 until the 1921 shut-down. When the respondent resumed
.operations in 1922 he was recalled and worked steadily until the 1934
shut-down. During his employment his work was never seriously
.criticized.
.. In,December 1936 Avalos applied to his former foreman, Ben Gray,
for his old position. Gray informed him that he had no authority
to hire at that time but when he did Avalos would be one of ' he first
to be hired. Upon Avalos' request, Gray promised to see Hodges
about his employment. Avalos was not advised of the outcome of
this interview. In June 1937 Avalos, by letter, again applied for work,
this time 'to Tempest. He received no reply to this request. New
employees were being hired at the times Avalos requested employment.
The respondent offered nb reason for not employing Avalos.
We find that the respondent, by refusing to hire Marcelo Avalos,
discriminated against him in regard to his hire and tenure of employ-
ment, because of his union membership and activity, thereby dis-
couraging membership in the Union.
NEVADA CONSOLIDATED COPPER CORPORATION ' '1219
Encarnacion Dominguez, a member of Local 69, worked' inter-
mittently at the respondent's Hurley mill until January 14, 1931.' At
that time he was discharged for being intoxicated and for failing, to
come to work. Dominguez also admitted that he had been discharged
on August 31, 1925, for refusing to work overtime during an emergency,
and on September 1, 1929, for laying' off without notice.' He was
refused employment by the respondent sometime during 1937.' In
view of the circumstances set forth above, we find that Dominguez
has not been discriminatorily refused employment by the respondent.
Carlos Elvira, a member of Local 69, was first employed at -the
respondent's mill in 1917. He worked there steadily as a general
laborer from November 1925 until the 1934 shut-down. He was
never seriously criticized for his work.
In January 1937 he applied for work to his former foreman, Hill.
Hill told him that although he could speak to Hodges about employ-
ment, he probably would not obtain any because he had•been-a mem-
ber of the Union. In May 1937 Hill left word at Elvira's home' for
him to report for work the next morning. In accordance with these
instructions, Elvira reported for work. However, when' he reported',
the timekeeper told him to see Hodges before going to work. Elvira
attempted to see Hodges but was delayed by his secretary., Hodges
did not appear until 11 o'clock that morning, and when he did so he
told Elvira that he did not have time to talk to him. On this occiision
new employees were being hired at the Hurley mill. The.responden' t
offered no reason for the non-employment of Elvira.
In view of the entire circumstances, we find that the respondent,
by refusing to hire Elvira, discriminated against him in regard 'to his
hire and tenure of employment, thereby discouraging membership in
the Union.
Julio P. Grado, a member of Local 69, worked at the respondent's
mill from 1926 until 1933. Grado held the position of president of
Local 69 and was active in its affairs. He applied for work in January
1937 and was told by Hodges that everything was filled up. - It
appears that at the time Grado applied for work, other men, mostly
new employees, were being hired by the respondent. We are ' con-
vinced by this fact that at the time Grado applied for work there were
vacancies existing which he could have filled. No other reason for its
refusal to employ Grado was offered by the respondent.
In view of the facts set forth above, we find that the respondent,
by refusing to hire Grado, discriminated against him in regard' to' his
hire and tenure of employment, thereby discouraging membership in
the Union.
Maclovio Huerta was not a member of either Local 63 or Local W.
He started working in the respondent's Hurley mill in, 1912 and worked
1220 DECISIONS or NATIONAL LABOR. RELATIONS BOARD
steadily until 1919. Since that time he has ' not worked for the
respondent.'
Early in 1937 Huerta asked his former foreman, Woods , for ,i letter
of recommendation . Woods asked him if he was a member of the
Union, and when Huerta replied that he was not, gave him the re-
quested letter of. recommendation . Huerta presented the recom-
mendation to Hodges shortly thereafter but was not given employ-
ment.' It appears that four or five other men were given employment
on that day.
There is no showing that the respondent believed that Huerta was
a. member of the Union.or that he was active in its affairs . Indeed,
the evidence is to the contrary . We find that Huerta was not dis-
criminatorily refused employment by the respondent.
. :Geronimo Jaurigui , a member of Local ' 69, worked at the respond-
ent's Hurley mill from 1912 until 1930. In January 1937 he applied
to Hodges for work but was denied employment. • Other men were
being hired at the time of his application , most of them being new
employees . On or about June 20, 1937 , Jaurigui asked Claude
Danley, a foreman, why he had not 'been given work. Danley replied
that he had spoken to Hodges about employing him but that ].lodges
had said that he could not 'give Jaurigui or his son any work. J,Iurigui
then inquired of Danley whether or not this refusal was because of
the Union. Danley replied , " he didn't know but he thought so."
The respondent offered no other reason for the failure to employ
Jaurigui.
We find that the respondent , by refusing to hire Geronimo Jaurigui,
discriminated against him in regard to his hire and tenure of e:nploy-
nient; thereby discouraging membership in the Union.
Juan Jaurigui , a member of Local 69, worked at the respondent's
mill from 1916 until 1934. He was last employed as a general laborer
on the rock crusher . On March 15 , 1937, he applied for work to
Danley, his former foreman. Danley told him that he had spoken to
Hodges about his working for the respondent and that Hodges had
told 'Danley that there would be no work for a while. At the time
Jaurigui applied for'work the respondent was still hiring new employ-
ees. The respondent offered no other'reason for its refusal to ?mploy
Juan Jaurigui..
In view of . Dfinley's explanation for the refusal to hire Juan's
father and in view of the entire circumstances set forth above, we
find that the respondent , by refusing ' to hire Juan Jaurigui, dis-
criminated against him in regard to his hire and tenure of employment,
thereby discouraging membership in the Union.
17smael Moreno , a member of Local 69, was first employed at the
respondent 's mill in 1929 and worked steadily rintil the 1931 shut-
NEVADA CONSOLIDATED COPPER CORPORATION 1221
clown. He was last employed as an oiler in the machine shop. On
October 1, 1934, he was elected secretary-treasurer of Local 69 and
was otherwise active in its affairs. He applied for work on November
20, 1936, and was allowed to make out an application for employment.
Later in the day Hodges told him that there was nothing for him at
that time. At least one other employee was hired on that day.
Sometime later Moreno's father went to see Ben Gray, Moreno's
former foreman, and asked him if he was going to take Moreno back.
Gray replied, "No, he cut his neck when he joined the Union."
Despite Moreno's application for employment, he was never recalled
by the respondent.
In view of the circumstances set forth above, we find that the
respondent, by refusing to hire Moreno, discriminated against him
in. regard to his hire and tenure of employment, thereby discouraging
membership in the Union.
Paulino Rodriguez worked at the respondent's Hurley mill from
1.91.5 to 1930, when he was laid off due to a reduction in the force.
Two months after the mill reopened in 1937 he applied for employ-
ment but was given "no satisfaction." Six months later he made
another application for employment but was not offered work. It
appears that new employees were being hired at the time he made
his applications.
We find that the respondent has not discriminated in regard to
Rodriguez' hire and tenure of employment.
Jose Serna, a member of Local 69, started to work at the respond-
ent's mill in 1913, and was employed steadily from 1926 until the 1934
shut-down. In December 1936 his foreman, Ben Gray, sent for him
to return to work. When Serna responded to the call he was told to
go and see Hodges. He did so and was asked by Hodges whether or
not he joined the Union in 1934. While the record fails to disclose
whether or not Serna replied that he had been a member of the
Union, it does show that Hodges refused him employment. At the
time new employees were being hired. The respondent offered no
explanation for its refusal to hire Serna. -
We find that the respondent, by refusing to hire Serna, discriminated
against him in regard to his hire and tenure of employment, thereby
discouraging membership in the Union.
Thomas Zamora, a member of Local 69, was employed at the
respondent's mill from 1929 until the 1934 shut-down. He was last
employed as an ash man in the repair shop. During his employment
his work was never seriously criticized. On December 15, 1936, he
applied for employment to Hodges, who told him that there was no
work at the time, but that he should "keep on coming." Several
days later Zamora saw his foreman, Danley, who put in an application
323429=42-78
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for him. Later in the day the witness asked Danley why he was not
given work. Danley could offer no reason why he was not employed
and asked Zamora whether or not he belonged to the Union. , When
Zamora replied that he was a member of the Union, Danley told him
that that was probably the reason he was not employed. On the day
Zamora applied to Danley for work the respondent hired new
employees.
In view of the entire circumstances, we find that the respondent,
by refusing to hire Zamora, discriminated against him in regard to
his hire and tenure of employment, thereby discouraging membership
in the Union.
Jerry Gonzales, Pedro Herrera, Mariano Placencio, and Pedro Saiz,
all members of Local 69, failed to apply for employment at the re-
spondent's mill. The record shows that the respondent hired 18
members of Local 69 by February 1, 1937. The record does not
reveal any compelling reason for concluding that the above-mentioned
individuals would have been denied employment had they applied
along with the other 18 union members who were hired.
We find that the respondent has not discriminated against Gonzales,
Herrera, Placencio; and Saiz with respect to their hire and tenure of
employment.
Maximo Gomez, Gilly Rodriquez, and Gil Salais, all members of_
Local 69; had been employed by the respondent at its mill for con-
siderable periods of time prior to the shut-down in 1934. At the time
of the shut-down all three were being maintained on the respondent's
pay roll for 6 days a month, working at various odd jobs. The
respondent contends that these three employees were maintained on
its 1934 pay ioll as charity cases, that it could not use them to any
advantage on the reopening of the mill in 1937, and that it therefore,
refused them employment. The record supports this contention.
At the time of the first hearing Gomez was 70 years old and admitted
that he had not applied'for employment in 1937 because of his old
age. Rodriguez was over 60 years old in 1937 and died on March 5,
1939. The record does not disclose the age of Salais, but iii; shows
that lie died on April 14, 1939.
We find that the respondent has not discriminated against Gomez,
Rodriguez, and Salais in regard to their hire and tenure of employ-
ment.
In summation, we find that the respondent discriminated in regard
to the hire and tenure of Gregorio Arispe, Primitio Arrey, Felipe
Avalos,' Marcelo Avatos, Carlos Elvira, Julio P. Grado, Geronimo
Jaurigui; Jaun Jaurigui, Ysmael Moreno, Jose Serna, and Thomas
Zamora.. We find that by such discrimination the.respon&,nt has
discouraged membership in the Union and has interfered with, re-
NEVADA CONSOLIDATED COPPER CORPORATION , 1223
strained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
We find that the respondent has not discriminated in regard. to
the hire and tenure of employment of Encarnacion Dominguez, Jerry
Gonzales, Maximo .Gomez, Pedro Herrera; Maclovio Huerta,. Mariano
Placencio, Gilly Rodriquez, Paulino Rodriguez, Pedro Saiz, and Gil
Salais, within the meaning of Section 8 (3) of the Act, and the allega-
tions in the complaint with respect to them will therefore be, dismissed.
6. David Saenz
The complaint against Kennecott and the Store Corporation
alleges that they and each of them discriminated in regard to the hire
and tenure of employment of David Saenz because of the union
membership and activities of persons related to said David Saenz.
The complaint against the respondent alleges that it refused to give
employment to David Saenz for the reason that he joined and, assisted
the Union and engaged in concerted activities with other employees
for the purpose of collective bargaining or other mutual aid and pro-
tection. .
David Saenz had been employed by .the Store Company as a truck
driver from September 1933 to October 1934, when the respondent's
operations closed down. At the time of the first hearing in this pro-
ceeding Saenz was not a member of the Union. He joined Local 63
prior to the second hearing. His brothers, Samuel and Gilbert
Saenz, and his father, Jesus Saenz, were members of the Union, and
Samuel and Jesus were named on Tempest's list. However, we have
already considered the cases of Gilbert Saenz and Jesus Saenz and
have found them to be without merit. On.the other hand, Samuel
Saenz held the position of recording secretary of Local 63 and was
otherwise active in its affairs.
On December 15, 1936, David applied to the Store Corporation,
.which had succeeded the Store Company, for his former position with
the Store Company. C. E. Derbyshire, the store manager, for both
the Store Company and the Store Corporation, told him that he could
not hire him. The record shows that about 2 weeks before Saenz
applied for employment at the store, Derbyshire hired a new truck
driver. Derbyshire testified that the new employee had been hired
before Saenz applied and that at that time he did not know where
David could be located.
In January 1937 another truck driver, was, hired by the Store
Corporation. Derbyshire explained that this truck driver was hired
in preference to Saenz because he had been formerly employed. by the
Store Company, had more seniority than Saenz, and had a large
family to support.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are of the opinion that the record does not sustain the allegations
of the complaint with respect to David Saenz. We shall therefore
order the dismissal of the complaint against the Store Corporation
and Kennecott.-
With respect to the allegations of the complaint against the r,,spond-
ent concerning David Saenz it appears that; following th,, Store
Corporation's refusal to hire Saenz, he applied to Thorne for a position
at the mine but was not given employment. The record shows that
David Saenz was not a member of the Union at the time of his appli-
cation at the mine, nor is there any showing that he engaged in any
concerted activities with other employees. In view of the entire
circumstances, we find that the respondent has not discriminated
against David Saenz in regard to his hire and tenure of employment.
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 r,.,spond-
ent described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist thereform and to take
certain affirmative action designed to effectuate the policies of the Act
and to restore as nearly as possible the condition which existed prior
to the commission of the unfair labor practices.
We have found that the respondent has-discriminated in regard to
the hire and tenure of employment of Filipe Avalos, Juan Castro,
Frank Dull, Antonio Esqueda, Genaro Grijalva, and the individuals
named in Appendices C and D, attached hereto. This discrimination
took the form of a refusal to hire. Under ordinary circumstances we
would order the respondent to offer immediate employment with full
hack pay to such persons.41 However, due to certain peculiar cir-
cumstances existing-in the present case, we shall make certain excep-
tions to our general ruling.
As to the requirement that the respondent offer immediate employ-
ment to certain individuals, the respondent contends that the Board
lacks the power to order the employment of 26 named individuals who,
it claims, have obtained other regular and substantially equivalent
employment since the discrimination against them. While we. do not
4' Matter of Waumhec Mills , Inc. and United Textile Workers of America , 15 N. L. R. B. 37 ; Mat ter of Milan
Shirt Manufacturing Company and Milan Improvement Company and Amalgamated Clothing Workers of
America, 22 N. L. R. B. 1143.
NEVADA CONSOLIDATED COPPER CORPORATION 1225
adopt the view that the obtaining of other regular and substantially
equivalent employment deprives the Board of power to reinstate
individuals who have been discharged or refused employment for union
activities and desire reinstatement,43 the employment records of these
complainants, since the date of their discrimination, would not in any
event justify the application of the rule for which the respondent
contends.44
William Horace Hopkins. Since the_;mine reopened in 1937,
Hopkins has earned approximately $90 a month working for a lumber
company in New Mexico. He had been employed by the respondent
prior to the 1934 shut-down as a blacksmith and was earning $4.25 a
day. As we have noted above, the operations at the respondent's
mine and mill continued quite steadily with the exception of the
period between July and October 1938. If Hopkins had not been
discriminated against by the respondent and been placed in his former
position, it is clear that he would have earned more working for the
respondent than he has earned working for the lumber company.
Hopkins testified that he desired to be reemployed by the respondent.
We find that since the reopening of the mine Hopkins has not obtained
substantially equivalent employment.
Julian Horcasitas earned approximately $935 between January 1937
and May 1938 as a hospital attendant at Fort Bayard, New Mexico.
He was formerly employed by the respondent as a general laborer
earning $3.65 a day. Horcasitas expressed a desire to be reemployed
by the respondent. We find that Horcasitas has not obtained regular
and substantially equivalent employment.
Elmer Hunter has been working for the Santa Fe Railroad since
August 1936 but testified that his work was not as steady as employ-
ment with the respondent would be. He has earned approximately
$950 since the mine reopened- in January 1937. Prior to the 1934
shut-down, he was earning $2.85 a day as a locomotive fireman.
Hunter expressed a desire to be employed by the respondent. We
find that Hunter has not obtained regular and substantiallyequivalent
employment.
Charles E. Hobbs has earned approximately $700 since he applied
for work in May 1937. He testified that while he had a job at the time
of. the hearing, it was not as steady as employment with the respond-
ent. He expressed a desire to be reemployed. Prior to the 1934
shut-down Hobbs was earning $3.80 a day as a brakeman. We find
43 Matter of Eagle-Picher Mining & Smelting Company , a corporation , and Eagle-Picher Lead Company, a
corporation and International Union of Mine, Mill & Smelter Workers, Locals Nos. 15, 17, 107, 108 and 111,
16 N. L. R. B. 727; Continental Box Co., Inc.,. v. National Labor Relations Board, 113 F. (2d) 93 (C. C. A. 5)
enf 'g Matter of Continental Box Compa7ay, Inc. and Federal Labor Union No. 21828, 19 N. L. R. B. 860.
11 See Mooresville Cotton Mills v. National Labor Relations Board, 110 F. (2d) 179 (C. C. A. 4), enforcing as
modified, pursuant to 97 F. (2d) 959 (C. C. A. 4) and 94 F. (2d) 61 (C. C. A. 4) Matter of Mooresville Cotton
Mills and Local No. 1221, United Textile Workers of America, 2 N. L. R. B. 952 and 15 N. L. R. B. 416.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Hobbs has not obtained regular and substantially equivalent
employment.
Bautista Perea formerly worked for the respondent as a common
laborer earning $2.60 a day. In February 1937 he obtained employ-
ment, with the Black Hawk mine and earned $16.80 for the entire
month. He continued working for the Black Hawk mine during the
month of March and earned $23.35. In May 1937 he obtained em-
ployment at the Peru mine and earned $67.50. In June his earnings
totaled $70.27. In July Perea transferred back to the Black Hawk
mine. He testified that he earned $3 a day, but that his work was
not steady. 'He continued working at the Black Hawk mine until
December 1937. On December 28 he obtained a position with W'. P. A.,
which position he held at the time of the hearing in May 1938.
He testified that his job at the time of the hearing was not as satis-
factory as at the respondent's mine. We find that Perea has not
obtained regular and substantially equivalent employment.
J. W. Baxter was employed as a locomotive fireman and engineer
at the time of the 1934 shut-down and was earning $5.15 it day.
Since he applied for work at the respondent's mine on January 15,
1937, he has earned approximately $1,000. Of this amount, he earned
$681 working for the Phelps Dodge Mining Company and the re-
mainder working for W. P. A. At the time of the hearing he was
unemployed and expressed a desire to be reinstated. We find that
Baxter has not obtained regular and substantially equivalent em-
ployment.
Luther W. Weaver was last employed by the respondent as a time
checker in the general office and was earning $4.15 a day. Since the
mine reopened in 1937 Weaver has earned approximately $755. Of
this amount approximately $315 was earned working for W. P. A.,
and the remainder was earned in private employment. He expressed
a desire to be reemployed by the respondent. We find that Weaver
has not obtained regular and substantial equivalent employment.
T. B. Benjamin was last employed by the respondent as a boiler-
maker and was earning $5.10 a day. Since the mine reopened in 1937,
he has earned approximately $700 operating his own private wheel
shop. He testified that from September 1 to September 18, 1935,
he obtained a position at the Imperial Water Works in Hobbs, New
Mexico, which was as good as the job he held before the shut-down.
However, he testified that while the position was satisfactory, ' the
living conditions at Hobbs, New Mexico, were not, due to the fact
that there was no place for his family. We find that Benjamin has
not obtained regular and substantially equivalent employment.
J. L. Benjamin was formerly employed by the respondent as a
shovel operator and was being paid at the rate of $7 a day. Since
NEVADA CONSOLIDATED COPPER CORPORATION 1227
January 1937 he has earned approximately $1100 working for. the
New Mexico State Highway Commission. This job lasted only
from January to October 1937. Since then Benjamin has not, been
working. He expressed a desire to be reinstated. We find .that
Benjamin has not obtained regular and substantially equivalent
employment.
Juan Castenda was last employed by the respondent as a gauge
man on the track, and he was being'paid at the rate of $2.60 a day.
Since he applied for employment on February 10, 1937, he has earned
approximately $1235. He worked 6 months on W. P. A., receiving'
approximately $40 a month. He has also worked intermittently at
the Black Hawk mine and the Asarco mine. Castenda expressed a
desire to be reemployed by the respondent. We find that he has not
obtained regular and substantially equivalent employment.
Bonifacio Alvarado was formerly employed by the respondent asa
general laborer on the tracks and was being paid at the rate of $2.60
a day. Since January 1937 he has worked 7 months for W. P. A.' and
earned $280. He also worked 4 months at the Peru mine and earned
$312. He expressed a desire to be reemployed by the respondent.
We find that Alvarado has not obtained regular and substantially
equivalent employment.
Antonio Cruz was last employed by the respondent as a ,powder man
and was earning $2.60 a day. Since February 17, 1937, he has earned
approximately $295.40 working at the Peru mine. He expressed a
desire to be reemployed by the respondent and testified that he had
not been able to obtain a job as good as the one he had before the mine
.shut down. We find that Cruz has not obtained regular and substan-
tially equivalent employment.
Felipe-Avalos was last employed by the respondent as a rock crusher
operator and was being paid at the rate of $3.15 a day. Since January
1, 1937, he has earned approximately $641.48 working for the Asarco
mine and $60 working for W. P. A. He expressed a desire to be
reemployed at the Hurley.mill and testified that he has not been able
to receive equivalent employment since the shut-down. We find that
Avalos has not obtained regular and substantially • equivalent em-
ployment.
Angus Gruwell was last employed by the respondent as a shovel
operator and was being paid at the rate of $7 a day. Since the mine
opened up, he has earned $691 selling Watkins products. He ' ex-
pressed a desire to be reemployed by the respondent. We find that he
has not obtained regular and substantially equivalent employment.
Francisco Costales was last employed by the respondent as a general
laborer working on the tracks. At that time he was earning $2.60
a day. Since January 1, 1937, he worked at the Peru mine for 5
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months and earned $351. He then obtained employment at the
Black Hawk mine for a few days and earned $15. Since then he has
earned approximately $85 in private employment and $18 working
for W. P. A. Altogether he has earned approximately $469. He
expressed a desire to be reemployed with the respondent and testified
that he has not been able to obtain as good a position as the one he
held ' with the respondent. We find that Costales has not obtained
regular and substantially equivalent employment.
Juan Candelaria was last employed by the respondent as a general
laborer on the track. He was being paid at the rate of $2.60 a day;
Since the mine reopened, he has earned $651.55 working for the
Asarco mine. He also received employment from W. P. A. and earned
$206. He testified that he has not been able to obtain a position as
good as the one he had with the respondent. Candelaria expressed a
desire to be reemployed by the respondent. We find that he has not
obtained regular and substantially equivalent employment.
Nicholas Delgado was last employed by the respondent as a general
laborer on the rock crusher. He was being paid at the rate of $2.95
a day. Since January 1, 1937, he worked 6 months for the Santa Fe
Railroad and earned $397.88. He expressed a desire to be reemployed
by the respondent and stated that he has not received a job as good
as the one he had with the respondent. We find that Delgado has not
obtained regular and substantially equivalent employment.
Ysmael Moreno was last employed by the respondent as an oiler
and was being paid at the rate of $2.50 a day. Since January 1937
he has earned $1,347.09 working at the Black Hawk mine. He testi-
fied that for a while he had a better job at the Black Hawk mine than
he held with the respondent. However, he stated that it was merely
a temporary job which he maintained in the absence of the person who
formerly held the job. Other than this, Moreno testified that he did
not receive a job as desirable as the one he had previously held with
the respondent. Moreno desires to be reemployed by the respondent.
We find that he has not obtained regular and substantially equivalent
employment.
V. H. Crittenden at the time of the 1934 shut-down was employed
as a craner and a shovel operator. He was being paid at the rate of
$5.25 a day. Since January 1, 1937, he has been working for the Soil
Conservation Service, earning $140 a month for 16 months. He
testified that he has not been able to obtain employment equivalent
to the job he had prior to the shut-down. He expressed a desire to
be reinstated. We find that Crittenden has not obtained regular and
substantially equivalent employment.
NEVADA CONSOLIDATED COPPER CORPORATION 1229
Ramon Marquez was last employed by the respondent as a boiler-
maker and was being paid at the rate of $3.55 a day. Since January
1937 he has earned $575 working for two construction companies and
a lumber company. He testified that the jobs be has held since
January 1, 1937, were not as good as he held with the respondent.
He expressed a desire to be reemployed by the respondent. We find
that Marquez has not obtained regular and substantially equivalent
employment.
Albert H. Walker was last employed by the respondent as a loco-
motive engineer and was being paid at the rate of $5.10.a day. Since
January 1, 1937, he has averaged $4 a day. He testified that lie has
not been able to obtain a job as good as the one he held before the
shut-down. He expressed a desire to be reemployed by the respond-
ent. We find that Walker has not obtained regular and substantially
equivalent employment.
Everado Marquez was last employed by the respondent in 1932 as
an assayer. Since January 10 he has earned $1,137.89 working at
the Peru mine. He expressed a desire to be reemployed at the
respondent's mine because it was more healthful work. He testified
that the work at the Peru mine was less desirable because of the under-
ground gas. He stated that the Santa Rita mine was preferable
because it was an open pit mine and above ground. We find that
Marquez has not obtained regular and substantially equivalent
employment.
Eusebio Chavez was last employed in the respondent's machine shop
as a blacksmith helper. He was paid at the rate of $3.55 a day.
Since January 1, 1937, he has earned $1,400 working at the Peru mine.
He expressed a desire to be reemployed by the respondent and testified
that he has not been able to obtain a job as good as the one he had
before the shut-down. We find that Chavez has not obtained regular
and substantially equivalent employment.
Encarnacion Murillo was last employed by the respondent as a
machine man earning $3.85 a day. Since January 1, 1937, he has
earned approximately $500 working in the Peru mine'. He expressed
a desire to be reemployed.by the respondent and testified that lie has
not received as good a job as the one he had with the respondent
prior to the shut-down. We find that Murillo has not obtained
regular and substantially equivalent employment.
Cipriano Esqueda was last employed by the respondent as a car
repairman, being paid at the rate of $3.25 a day. Since January 1,
1937, he has earned approximately $1,144.70 working for the Peru
Mining Company: He testified that he prefers his old position with
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the, respondent and that he has not been able to obtain a position as
good as the job he held at the time of the shut-down. We find -that
Esqueda has not obtained regular and substantially equivalent
employment.
Charles Williams was .last employed by the respondent as a loco-
motive fireman and was being paid at the rate of $3.85 a day. During
1937 he worked at the Vanadium mine. For 2 months. of the year he
was being paid at the rate of $3.55 a day and the rest of the time at
$4.25 a day. On January 1, 1938, Williams was laid off at'the Vana-
dium mine. He testified that the job at the Vanadium mine was not
as good as the position he formerly held with the respondent.: Williams
expressed a desire to be, reemployed at the respondent's mine. We
find that Williams has not obtained regular and substantially equiva-
lent employment.
We shall order the respondent to offer immediate employment to
these 26 individuals.
Beginning in 1939 the respondent proceeded to hire a number of
the complainants. A list of such complainants, together with the
dates upon which they were hired, is set forth in Appendix C, attached
hereto. If the respondent had not already hired these individuals,
we would order it to offer them employment at the same or sub-
stantially equivalent positions which they would have secured, in-
cluding any seniority or other rights or privileges they would have
acquired, had the respondent not unlawfully discriminated against
them. While the record shows that these individuals have been hired-
by the respondent, it does not disclose whether they have secured
such employment. We shall, therefore, order the respondent to offer
immediate employment, under the conditions set forth above, to the
individuals named in Appendix C who have not already received
such employment.
The respondent contends that it should not be compelled to employ
Juan Castro, Antonio Esqueda, Genaro Grijalva, and Felipe Avalos
because their physical condition is such that they cannot work. This
position is predicated upon evidence adduced at the hearing that Cas-
tro was afflicted with apoplexy in June 1939; that Esqueda and Avalos
were offered employment on September 20 and November 27, 1939,
respectively, but were rejected on the ground that they could not pass
the physical examination; and that Grijalva was disabled on August
23, 1937, and has been unable to work since that time. Since the
respondent's contention is borne out by the record, we shall not order
it to offer employment to these individuals.
Frank Dull, who was discriminatorily refused employment, testified
that he did not desire employment with the respondent, that he pre-
ferred to work at the Asarco mine where lie was employed at the time
NEVADA CONSOLIDATED COPPER CORPORATION 1231
of the hearing. We shall not order the respondent to offer him
employment .41
In accordance with the foregoing, we shall order the respondent to
offer to the employees named in Appendix D, attached hereto, imme-
diate employment at the same or substantially equivalent positions at
which they would have been employed, including any seniority or other
rights or privileges they would have acquired had the respondent not
unlawfully discriminated against them.
We have already indicated that under ordinary circumstances, in.
order to remedy the respondent's unfair labor practices, we would
order it to make whole the individuals it has discriminatorily refused
to hire. The extent of the back pay which the respondent. will be
required to pay to the employees discriminated against needs to be
determined more precisely.
We have found that the respondent discriminated against certain
complainants by "blacklisting" them because of their union activities
and membership. The record shows that the majority of such com-
plainants applied for employment before or within a reasonable time
after the reopening of the mine. As to those who failed to apply for
employment, we have found that. they did not do so because of the
respondent's unfair labor practices in refusing to hire union men.
We find that if the respondent had not discriminated against such
persons, they would have been employed shortly after the mine re-
opened. However, since it is impossible to ascertain the order in
which the respondent would have employed such complainants if it
had not discriminated against them, we shall fix a date marking the
end of a period within which the respondent could have hired all of
them. The evidence discloses that by February 1, 1937, the respond-
ent had hired 269 new employees at Santa Rita and 302 employees
at Hurley. We find that by February 1, 1937, the respondent could
have employed all of the blacklisted complainants which it discrim-
inatorily refused to hire. Accordingly, back pay for such employees
will be computed from February 1, 1937, with certain exceptions to be
noted below.
As to the persons whom we have found the respondent discrim-
inated against but who* were not on the blacklist, the record shows
45 The respondent also contends that Juan Cordova, Ray Gumfory, Julian Horcasitas , Miguel Garcia,
Eustacio Horcasitas , and V. H. Crittenden testified that they did not desire employment with the re-
spondent . The record reveals that Cordova, when asked at the hearing whether he wanted his job back
with the respondent replied, "If it is recognized by the Union, yes." It is clear that this statement was not
intended as a refusal to accept employment with the respondent . Indeed , the record shows that Cordova
accepted employment with the respondent on November 7, 1939 . With respect to the remaining com-
plainants who offered similar qualifications to their acceptance of employment from the respondent , if such
employment were offered , it is clear that said complainants merely intended to refuse employment if the
respondent continued to discriminate against them because of their union activities and membership.
Such qualifications cannot be considered as a refusal to accept employment since the respondent is bound
by the Act not to so discriminate.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that all except Juan Jaurigui and Felipe Avalos applied for employ-
ment before February 1, 1.937. We shall, therefore, order that back
pay be computed as to all of them, except Jaurigui and Avalos, from
February 1, 1.937. Jaurigui applied for work on March 15, 1937, while
Avalos applied some time in April 1937. We shall, therefore, order
that back pay be computed as to them beginning from March 15
and April 30, 1937, respectively.
With respect to Lee Goetz and Asa T. Carr, the record shows that
the complaint and charges were amended to include these two indi-
viduals at the opening of the first hearing. However, neither of them
appeared.or testified at the hearing. The Trial Examiner dismissed
the complaint as to Goetz but did not mention Carr. At the second
hearing, held on December 7, 1939, the names of these two individuals
were reinstated to the complaint and charges. Also, on December 7,
1,939, the complaint and charges were amended to include the names
of J. L. McCraney and Simon Sias. These four individuals appeared
and testified for the first time at the second hearing on December 7,
1939. We have found that the respondent discriminated against them
by refusing to hire them. In view of the foregoing facts, we shall
order that back pay for Carr, Goetz, McCraney, and Sias be com-
puted from the date of their appearance at the second hearing.46
In summary, back pay for the individuals whom the respondent
discriminatorily refused to hire will be computed from February 1,
1937, except that in the case of Juan Jaurigui it will be computed
from March 15, 1937; in the case of Felipe Avalos from April 30,
1937; and in the cases of Carr, Goetz, McCraney, and Sias from
December 7, 1939.
Our order for back pay to the complainants found to have been
discriminated against will continue, with certain exceptions rioted
below, to the date when the respondent offers them employment.
As noted above, the respondent hired the complainants named in
Appendix C. Back pay for those individuals will cease upon the dates
that they were hired, as indicated in Appendix C, except that such
of the individuals named in Appendix C as were not hired to the same or
substantially equivalent positions to those which they would have
secured if the respondent had not discriminated against them shall
be made whole for any loss of pay they have suffered since they were
hired by reason of the respondent's failure to employ them in such
positions.
We have found that Juan Castro, Antonio Esqueda, Genaro Gri-
jalva, and Felipe Avalos were unable to accept employment with the
respondent because of physical disabilities. Castro was. disabled on
18 Cf . Matter of Inland Lime & Stone Company and Quarry Workers International Union of North America,
Branch No . 559, 8 N. L. it. B. 944.
NEVADA CONSOLIDATED COPPER CORPORATION 1233
June 1, 1939; Esqueda on September 20, 1939; Avalos on November
27, 1939; and Grijalva on August 23, 1937. Our order shall provide
that the respondent's liability for back pay to these individuals shall
terminate on the dates when their disabilities occurred.
We ha ve found that Frank Dull was working at the Asarco mine at
the time of the hearing and did not desire reinstatement. The
respondent will be required to give back pay to Dull to the date upon
which he acquired the position he held at the time of the hearing.
We have heretofore indicated the dates from which we shall order
the respondent to make whole the employees it has discriminated
against, and the dates on which the back pay shall cease running, or
if the back pay is still running, the event which will terminate the
respondent's liability for it, namely, the offer of employment to the
employees in question. In accordance with the foregoing, we will
order the respondent to make whole Felipe Avalos, Juan Castro,
Frank Dull, Antonio Esqueda, Genaro Grijalva, and each of the
persons listed in Appendices C and D for any loss of pay eacl.>, may
have suffered during the period from the dates heretofore indicated as
applicable to each individual, to the date of the offer of reinstatement
or the date upon which we have heretofore indicated back pay would
terminate for certain individuals, less the net earning 47 of each during
such' period.
The record shows that Eustacio Horcasitas and-Emilio Munoz, two
of the complainants whom we have found were discriminatorily
refused employment, died on April 20, 1939, and September 10, 1939,
respectively. In view of these facts we shall not order the respondent
to offer them employment. However, under such circumstances their
personal representatives are entitled to a sum of money equal to the
amount they would have normally earned as wages from the date of
the refusal to hire, February 1, 1937, to the date of their respective
deaths, less their net earnings 48 during said period. Accordingly we
shall order the respondent to pay over to the personal representatives
of Eustacio Horcasitas and Emilio Munoz such amounts.49
47 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 elsewhere than for the respondent, which
would not have been incurred but for the unlawful discrimination against him 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 he deducted from the sum due the
employee, and the amount thereof shall he paid over to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which supplied the funds for said work-relief
projects . Matter of Republic Steel Corporation and Steel Workers Organizing Committee , 9 N. L. It . B. 219,
enf d. as modified as to other issues, Republic Steel Corporation v. National Labor Relations Board, 107 F.
(2d) 472 (C. C. A. 3), cert . granted as to this issue 309 U. S. 684.
4 8 See footnote 47 supra.
1' See National Labor Relations Board v . Hearst , et at,, 107 F . (2d) 658 (C. C. A. 9), enf'g as mod . Matter
of William Randolph Hearst , et at., and American Newspaper Guild , Seattle Chapter , 2 N. L. It . B. 530. .
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated August 8, 1940, the respondent submitted a. photo-
static copy of a death certificate showing that T. H. Cooley died on
April 5, 1940. This certificate is hereby made a part of the record..
In accordance with the procedure outlined in the previous paragraph
we shall order that the respondent pay over to the personal rep-
resentative of T. H. Cooley a sum of money equal to the amount he
would have normally earned as wages from the date of the discrimi-
nation against him, February 1, 1937, to the date of his death, April
5, 1940, less his net earnings 60 during said period. al
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. International Union of Mine, 1\4Iil1 and Smelter Workers, and
Locals Nos . 63 and 69 thereof, 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 Felipe Avalos, Juan Castro, Frank Dull, Antonio Esqueda,
Gen.aro Grijalva , Emilio Munoz , Eustacio Horcasitas, and T. H.
Cooley, and of the persons listed in Appendices C and D, attached
hereto, 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 operations of Kennecott and the Store Corporation occur
in commerce , within the meaning of Section 2 (6) of the Act.
6. By failing to employ Refugio Apodaca , Juan Arostique, 0. W.
Booth, Aurelio Chavez, Juan Gonzalez , Isaac Greear , Antoni Guenero,
Tony Guerro, Filipe Huerta, Charles Johnson, Rafael Lardisabel,
Thomas Lottriz, Jesus Martinez, Teodoro Misquez , Guillermo Pla-
cencio, Antonio Quesada, Teodoro Rios, David Saenz , Gilbert
Saenz, Jesus Saenz , Ralph Saenz , Antonio Sierra , Encarnacion
80 See footnote 47, supra.
51 The respondent suggests that, since the death certificate indicates that Cooley suffered from cancer of
the stomach for four years and that this ailment was the immediate cause of his death, it would be unlikely
that he would have been physically able of holding down any job which required any manual labor since
January 1 , 1937. There is no support for this suggestion on the record . However, if such is the fact, the
question raised is one of compliance with our order , since our order provides for such contingency by limiting
the sum of money to be paid over to the personal representative of Cooley to the amount he would normally
have earned as wages had he not been discriminated against.
NEVADA CONSOLIDATED COPPER CORPORATION 1235
Dominguez, Maximo Gomez, Jerry Gonzales, Pedro Herrera, Maclo-
vio Huerta, Mariano Placencio, Gilly Rodriquez, Paulino Rodriguez,
Pedro Saiz, and Gil Salais, the respondent has not engaged in unfair
labor practices, within the meaning of Section 8 (1) and (3) of the
Act. .
.7. By failing to employ David B. Saenz, the Store Corporation and
Kennecott have not engaged in unfair labor practices, within the
meaning of Section 8 (1) and (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,
Nevada Consolidated Copper Corporation, New York City, 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, Locals Nos. 63 and 69, or in any other
labor organization of its employees, by refusing to hire, discharging,
or refusing to reinstate any of its employees or in any other manner
discriminating in regard to their hire or tenure of employment or any
term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to the persons named in.Appendix D immediate employ-
ment at the same or substantially equivalent positions at which they
would, have been employed, including any seniority or other rights
and privileges they would have acquired, had the respondent not
unlawfully discriminated against them;
(b). Offer immediate employment at the same or substantially
equivalent positions at which they would have been employed, includ-
ing any seniority or other rights and privileges they would have
acquired had the respondent not discriminated against them, to the
persons named in Appendix C who have not already received such
employment;
(c) Make whole the persons listed in Appendix D, with the exception
of Asa T. Carr, Lee Goetz, J. L. McCraney, and Simon Sias, for any
1236 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
loss of pay. each may have suffered by reason of the respondent's dis-
criminatory refusal to employ them by payment to each of them,
respectively, of a sum of money equal to that which each would nor-
mally have earned as wages during the period from February 1, 1937,
to the date employment is offered, less the net earnings b2 of each
during said period; deducting, however, from the amount otherwise
due to each of them monies received by them during that period for
work, performed upon Federal, State, county, municipal, or other
work-relief projects; and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied funds for said work-
relief projects;
(d) Make whole Asa T. Carr, Lee Goetz, J. L. McCraney, and
Simon Sias for any loss of pay each may have suffered by reason of the
respondent's discriminatory refusal to employ them by payment to
each of them, respectively, of a sum of money equal to that which
each would normally have earned as wages during the period from
December 7, 1939, to the date employment is offered, less his net earn-
ings 53 during said period; deducting, however; from the amount other-
wise due to each of them monies received by them during that period
for work performed upon Federal, State, comity, municipal, or other
work-relief projects; and pay over the amount so deducted. to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied funds for said
work-relief projects;
(e) Make whole the persons named in Appendix C, with the excep-
tion of Juan Jaurigui, for any loss of pay each may have suffered by
reason of the respondent's discriminatory refusal to employ them by
payment to each of them respectively, of a sum of money equal to
that which each would normally have earned as wages during the
period from February 1, 1937, to the date each was employed by the
respondent, as indicated. in Appendix C, less the net earnings 54 of each
during said period; deducting, however, from the amount otherwise
due to each of them monies received by them during that period for
work performed upon Federal, State, county, municipal, or -other
work-relief projects; and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied funds for said work-
relief projects;
(f) Make whole Juan Jaurigui for any loss of pay he may have
suffered by reason of the respondent's discriminatory refusal to employ
him by payment to him of a sum of money equal to that which he
52 See footnote 47, supra.
E3 See footnote 47, supra.
54 See footnote 47, supra.
NEVADA CONSOLIDATED COPPER CORPORATION 1237
would normally- have earned as wages from March 15, 1937, to
September 27, 1939, the date 'he was hired by the respondent, less
his net earnings-15 during said period; deducting, however, from the
amount otherwise due to him monies received by him during that
period for work' performed upon Federal, State, county, municipal,
or other. work-relief projects; and pay over the amount so deducted
to the appropriate fiscal agency of the Federal, State; county, munic
ipal, or other government or' governments which supplied funds for
said work-relief projects;
(g) Make whole the persons named in Appendix C who have not
been hired 1by the respondent in the same or substantially equiv-
alent positions -to those which they would have secured if the re-
spondent had not discriminated against them, for any loss of pay each
may'have suffered by reason of the respondent's failure to hire them
in such positions, by payment to each of them, respectively, of a sum
of 'money equal to that which each would normally have earned as
wages if he had been hired in such position, during the period from
the ' date each was employed by the respondent, as indicated in
Appendix C, to the date when the respondent employs him in such
position, less his earnings 56 during such period;
(h) Make whole Juan Castro for any loss of pay he may have
suffered by reason ' of the respondent's discriminatory refusal to
employ him by payment to him of a sum of money equal to that which
he would .normally have earned as wages from February 1, 1937, to
June' 1, '1939, less his net earnings 57 during said period; deducting,
however, from the amount otherwise due to him monies received by
him during that period for work performed upon Federal, State,
county, municipal, or other work-relief projects; and pay over the
amount so deducted 'to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied funds for said work-relief projects;
(i) Make whole Antonio Esqueda for any loss of pay he may have
suffered by reason of the respondent's discriminatory refusal to employ
him by-payment to him of a sum of money equal to that which he
would normally have earned as wages during the period from February
1, 1937, to September 20,; 1939, Jess his net earnings 68 during said
period; deducting however, from the amount otherwise due him monies
received by him during that period for work performed upon Federal,
State, county, municipal, or other work-relief projects; and pay over
the' amount so deducted to the appropriate fiscal agency of the
05 See footnote 47, supra.
56 See footnote 47, supra.
67 See footnote 47, supra.
58 See footnote 47, supra.
323429-42-79
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federal, State, county, municipal, or other government or governments
which supplied funds for said work-relief projects;
(j) Make whole Genaro Grijalva for any loss of pay he. may have
suffered by reason of the respondent's discriminatory refusal to hire
him by payment to him of a sum of money equal to that which he,
would normally have earned as wages from February, 1, ,1937, to
August 23, 1937, less his net earnings 69 during said period; deducting,,
however, from the amount otherwise due to him monies received by"
him during that period for work performed upon Federal, State,
county, municipal, or other work-relief. projects; and pay over the
amount so deducted to the appropriate fiscal agency of the Federal,
State, county,. municipal, or other government or governments which
supplied funds for said work-relief projects;
(k) Make whole Felipe Avalos for any loss of pay he may have
suffered by reason of the respondent's discriminatory refusal to hire
him by payment to him of a sum of money equal to that which he
would normally have earned as wages from April 30, 1937, to Novem-
ber 27, 1939, less his net earnings 60 during said period; deducting,
however, from the amount otherwise due to him monies received by
him during that period for work performed upon Federal, State,
county, municipal, or other work-relief projects; and pay over the
amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied funds for said work-relief projects;
(1) Pay over to the personal representatives of Eustacio Horcasi-
tas, T. H. Cooley, and Emilio Munoz, respectively, a• sum of money
equal to the amount each of them would have earned as wages from
February 1, 1937, the. date of the respondent's refusal to hire them,
to the date of their respective deaths, less their net earnings 81 during
such period; deducting, however, from the amounts otherwise due
said employees monies received by them during that period for work
performed upon Federal, State, county, municipal, or other work-relief
projects; and pay over the amount so deducted to the appropriate fiscal
agency of the Federal, State, county, municipal, or other government
or governments which supplied funds for said work-relief projects;
(m) Make whole Frank Dull for anyany loss of pay he may, have
suffered by reason of the respondent's refusal to hire him by payment
to him of a sum of money equal to that which he would normally have
earned as wages from February 1, 1937, to the date upon which he
secured the employment in which he was engaged at the time of the
hearing in this proceeding, less his net earnings 82 during said period;
59 See footnote 47, supra.
eo See footnote 47, supra.
61 See footnote 47, supra.
62 See footnote 47, supra.
NEVADA CONSOLIDATED COPPER CORPORATION 1239
deducting, however, from the amount otherwise due to him monies
received by him during that period for work performed upon Federal,
State, county, municipal, or other work-relief projects; and pay over
the amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied funds for said work-relief projects;
(n) Post immediately in conspicuous places throughout its mine
at Santa Rita and its mill and smelter at Hurley, New Mexico, 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 re-
spondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a) ' and (b) of this Order; (2) that
the respondent will take the affirmative action set forth in paragraphs
2 (a) through (m), inclusive, of this Order; and (3) that the respond-
ent's employees are free to become or remain members of the Inter-
national Union of Mine, Mill and Smelter Workers, Locals Nos. 63
and 69, and that the respondent will not discriminate against any
employee or applicant for employment because of membership or
activity in that organization;
(o) 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 herewith.
IT IS FURTHER ORDERED that the complaint, as amended', be, and it
hereby is, dismissed in so far as it alleges that the respondent discrimi-
nated in regard to the hire and tenure of employment of Refugio
Apodaca, Juan Arostique, 0. W. Booth, Aurelio Chavez, Juan
Gonzalez, Isaac Greear, Antoni Guenero, Tony Guerro, Filipe.Huerto,
Charles Johnson, Rafael Lardisabel, Thomas Lottriz, Jesus Martinez,
Teodoro Misquez, Guillermo Placencio, Antonio Quesada, Teodoro
Rios, David Saenz, Gilbert Saenz, Jesus Saenz, Ralph Saenz, Antonio
Sierra, Encarnacion Dominguez, Maximo Gomez, Jerry Gonzales,
Pedro Herrera, Maclovio Huerta, Mariano Placencio, Gilly Rodriguez,
Paulino Rodriguez, Pedro Saiz, and Gil Salais.
AND IT IS FURTHER ORDERED that the complaint against the Store
Corporation and Kennecott be, and it hereby is, dismissed.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX All
Persons Named in Original Complaint
Alvarado, Bonifacio
Arispe, Gregorio
Arellano, Emilio
Arostegui, Juan
Arrey, Primitivo
Avalos, Felipe
Avalos, Marcelo
Beck, Joseph W.
Benjamin, J. L.
Benjamin, T. B.
Candalaria, Juan
Castro, Juan
Chavez, Eusebio
Cordova, Juan
Costales, Francisco
Crittenden, V. H.
Cruz, Antonio
Delgado, Nicolas
Dominguez, Encarnacion
Elvira, Carlos
Esqueda, Cipriano
Gomez, Maximo
Grado, Julio P.
Grijalva, Genaro
Gruwell, Angus
Guenero, Antoni
Guerro, Tony
Herrera, .Pedro
Hicks, Ira J.
Hobbs, Charles C.
Hopkins, William Horace
Horcasitas, Eustacio
Horcasitas, Julian
Horcasitas, Ramond
Howe, John
Huerta, Felipe
Huerta, Maclovio
Hunter, Elmer
Jauregui, Geronimo
Johnson, Charles
Kemp, Joseph I.
Kirker, Rafael
Lottritz, Thos. C.
Moreno, Ysmael
Murillo, Encarnacion
Munoz, Emilio
Perea, Bautista M.
Placencio, Guillermo
Placencio, Mariano
Quesada, Antonio
Rodriguez, Paulino
Rodriguez, Gilly
Saenz, Gilbert
Saenz, Jesus
Sa;enz, Ralph
Serna, Jose
Sierra, Antonio
Smith, Kenneth Hardie
Walker, Albert H.
Weaver, L. E.
Zamora, Thomas
63 The spelling of many names appearing in the appendices varied in the record.
NEVADA CONSOLIDATED COPPER CORPORATION 1241
Persons Added to Original Complaint by
Amendment at First Hearing
Allen, Earl Lopez; Ignacio
Apodaca, Dionicio Macias, Julian
Apodaca, Refugio, Marquez, Everardo
Baxter, Joseph W. Marquez, Ramon
Booth, O. W. Martin, Roy
Carr, Asa T. Martinez, Jesus
Castenada, Juan Misquez, Teodoro
Chavez, Aurelio Orosco, Jose
Cooley, T. H.. Padron, Conrado
Dull, Frank Ramirez, Francisco
Esqueda, Antonio Ramirez, Nicolas
Garcia, Miguel Rios, Teodoro
Goetz,.Lee Robertson, J. L.
Gonzalez, Jerry. Rodiguez, Ben
Gonzalez, Jua11 Saenz, David
Greear, Isaac Saiz, Pedro
Gumfory, Ray Salais, Gil
Herrera, Pedro Vera, Juan
Hileman, Robert Wedell, Charles W.
Jaurigui, Juan Williams, C. H.
Lopez, Francisco Winsatt, Bailey
Persons Added to Complaint by Amendment at Second Hearing ea
Byers, George Jaurigui, Julian (also
Carr, Asa T. known as Jauri)
Gallegos, Martin Johnson, Charles
Goetz, Lee Lardizabal, Rafael
Greer, William Martin, Roy
Gumfory, C. M. McCraney, J. L.
Gumfory, M. O. Murillo, Encarnacion, Jr.
Heredia, Florencio Murillo, Raymundo
Hileman, Robert Sias, Simon
Hill, E. C. Winsatt, Bailey
64 The names of Asa T. Carr, Lee Goetz, Robert,nileman, Roy Martin, Bailey Winsatt, and Charles
Johnson appear twice in Appendix A.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Complainants on Tempest's Blacklist as to Whom the Respondent Does
Not Specifically Raise a Defense
Allen, Earl Hicks, Ira
Alvarado, Bonifacio Hopkins, William Horace
Arellano, Emilio Horcasitas, Eustacio
Baxter, Joseph Hunter, Elmer
Benjamin, J. L. Lopez, Francisco
Benjamin, T. B. Lopez, Ignacio
Candalaria, Juan Macias, Julian
Castenada, Juan Marquez, Everardo
Castro, Juan Marquez, Ramon
Chavez, Eusebio Munoz, Emilio
Delgado, Nicolas Murillo, Encarnacion
Esqueda, Cipriano Perea, Bautista
Esqueda, Antonio Walker, Albert H.
Grijalva, Genero Weaver, L. B.
Gruwell, Angus Williams, Charles
Herrera, Pedro
APPENDIX C
Complainants. Hired 65
Name Hired at Date hired
Arellano, Emilio___________ Santa Rita_____________ 9-20-39
Arrey, Primitivo___________ Hurley ----------------- 11-7-39
Avalos, Marcello__________ Hurley ----------------- 11-11-39
Baxter, J. W______________ Santa Rita_____________ 11-7-39
Benjamin, J. L____________ Santa Rita_____________ 9-19-39
Candelaria,Juan ---------- Santa Rita_____________ 11-18-39
Cordova, Juan Santa Rita_____________ 11-7-39
Costales, Francisco -------- Santa Rita------------- 1-23-39
Delgado, Nicolas__________ Santa Rita_____________ 9-21-39
Elvira, Carlos_____________ Hurley_________________ 9-27-39
Esqueda, Cipriano--------- Santa Rita_____________ 9-20-39
Guwell, Angus ------------ Santa Rita_____________ 9-20-39
Herrera, Pedro______ Santa Rita_____________ 10-14-39
Hopkins, Williams Horace-- Santa Rita---------- - -- 11-12-39
Hunter, Elmer W----------- Santa Rita_____________ 11-12-39
Jaurigui,Juan ------------- Hurley ----------------- 9-27-39
Lopez, Francisco---------- Santa Rita_____________ 9-20-39
Perea, Bautista____________ Santa Rita_____________ 11-7-39
Robertson, James I--------- Santa Rita------------- 11-11-39
Serna, Jose_______________ Hurley_________________ 11-10-39
Walker, Albert H__________ Santa Rita_____________ 11-21-39
Wedell, Charles ------------ Santa Rita------------- 11-15-39
-Williams, Charles H------- Santa Rita------------- 11-20-39
Zamora, Thomas__________ Hurley_________________ 11-7-39
65 This list does not include the names of the complainants whose cases we have dismissed.
NEVADA CONSOLIDATED COPPER CORPORATION
APPENDIX D
List of Complainants
Allen, Earl
Alvarado, Bonifacio
Arispe, Gregorio
Beck, Joseph
Benjamin; T. B.
Carr, Asa T.
Castenda, Juan
Chavez, Eusebio
Crittenden, V. H..
Cruz, Antonio
Garcia, Miguel
Goetz, Lee
Grado, Julio
Gumfory, Ray
Hicks, Ira.
Hobbs, Charles
Horcasitas, Julian
Horcasitas, Ramond
To Be Offered Employment
Howe, John
Jaurigui, Geronimo
Kemp, Joseph
Kirker, Rafael
Lopez, Ignacio
Macias, Julian
Marquez, Everado
Marquez, Ramon
McCraney, J. L.
Moreno, Ysmael
Murillo, Encarnacion
Padron, Conrado
Sias,' Simon
Smith, Kenneth
Vera, Juan
Waggoner, Orvil
Weaver, L. B.
1243