Phelps Dodge Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1940

19 N.L.R.B. 547 (N.L.R.B. 1940)

In the Matter- Of PHELPS DODGE CORPORATION, A CORPORATION and
INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS,
LOCAL No. 30
Case No. C-500.Decided January 16, 1940
Copper Mining, Milling, Smelting, Refining, and Fabricating Industry-
Interference, Restraint, and Coercion-Employees strike occurring before
effective date of Act and continuing thereafter is a current labor
dispute although strikers' jobs had been filled prior to effective date
of Act; strikers therefore retained status as employees entitled to protec-
tion of Act-Discrimination: refusal after effective date of. Act. to reinstate 38
employees who went on strike prior to effective date of Act and refusal to hire
2 former employees because of union membership and activities ; policy of
excluding from employment union., adherents evidenced-by segregation of em-
ployees who were union members, espionage, statements in inter-office cor-
respondence, and statements of employment manager to strikers seeking rein-
statement ; mass application by strikers for reinstatement held to be sufficient
application ; allegations of, dismissed as to 5 former employees refused employ-
ment-Regular and Substantially Equivalent Employment: held not to have
been obtained where relative size of new employer's business reduces likelihood
of continuity and security of employment, and where seniority rights and con-
tinuous service records have'been lost-Reinstatement Ordered: for 37 strikers
and 2 former employees-Back Pay:' awarded from 'date upon which all might
have been reinstated to status of working employees.
Mr. David Persinger, for the Board.
Ellinwood cfi Ross by Mr. Dennison Kitchel and Mr. William A.
Evans, of Phoenix, Ariz., for the respondent.
Mr. Henry J. Fox, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed on June 7, 1937, and
December 30, 1937, respectively, by the International Union of Mine,
Mill and Smelter Workers, Local No. 30, herein called the Union,
the National Labor Relations Board, herein called the Board, by
Towne J. Nylander, Regional Director for the Twenty-first Region
(Los Angeles, California), issued and duly served its complaint dated
19 N. L. R. B., No. 60.
547
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 10, 1938, against Phelps Dodge Corporation, New York
City, herein called the respondent; alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act.
With respect to the unfair labor practices the complaint, in sub-
stance, alleged that : (1) by its refusal to reinstate certain specified
individuals employed at its Copper Queen : Mine, Bisbee, Arizona,
because they had joined and ,assisted the Union and engaged in con-
certed activities with other employees for the purpose of collective
bargaining and other mutual aid and protection, the respondent did
discriminate and is discriminating in regard to their hire and tenure
of employment and did thus discourage and is thus discouraging
membership in the Union; and (2 ) by its failure to reinstate said
individuals, the respondent did interfere with , restrain , and coerce
its employees and is interfering with, restraining , and coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
The respondent filed an answer, dated January 20, 1938, admitting
in part and denying in part the allegations of the complaint concern-
ing its business," denying that the alleged unfair labor practices af-
fect commerce, and further denying that it had engaged in or was
engaging in the alleged unfair labor practices.
On January 10, 1938, the Regional Director issued a notice of
hearing, copies of which were duly served upon the respondent, the
Union, and the Employees' Association.
Pursuant to notice, a hearing was held in Bisbee, Arizona, from
January 27 through February 3, 1938, before Thomas H. Kennedy,
the Trial Examiner duly designated by the Board. The Board and
the respondent appeared by counsel and participated in the hearing.
Officials and members of the Union were present and testified, but
otherwise the Union did not participate in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses. and to
introduce evidence bearing on the issues was afforded to all parties.
During the course of the hearing, by'stipulation between counsel for
the Board and the respondent, the complaint and charge were amended
by the addition of one name. Upon motion of counsel for the Board,
corrections were made in the names listed in the complaint.
At the commencement of the hearing the counsel for the respondent
filed six written motions to dismiss the complaint on the ground
that it was insufficient. The Trial Examiner severally denied them.
1 See Section I, infra.
PHELPS DODGE CORPORATION 549
The rulings in respect thereto are affirmed. At the close of the
Board's case and again at the conclusion of the taking of testimony,
the respondent made nine different motions to dismiss the complaint
as to various individuals and in its entirety. The Trial Examiner
denied these motions. We affirm his rulings only so far as they are
consistent with the findings, conclusions, and order, hereinafter set
forth.2
Upon motion of counsel for the Board, the Trial Examiner dis-
missed the complaint as to Bert Bethel, T. N. Curtis, and John J.
McKelvey. At the conclusion of the hearing, upon motion of counsel
for the respondent, with acquiescence of counsel for the Board, the
Trial Examiner dismissed the complaint as to Earl Worden. During
the course of the hearing the Trial Examiner 'made several other
rulings on motions and on objections to the admission of evidence
besides those already considered. The Board has reviewed all these
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On March 16, 1938, the Trial Examiner filed his Intermediate
Report in which he found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the Act, and recommended that the respondent be required to cease
and desist from such practices and to offer reinstatement with back
pay to 38 persons and back pay alone to 7 persons found to have
been discriminatorily refused reinstatement. On April 2, 1938, the
respondent's exceptions to the Intermediate Report and to various
rulings of the Trial Examiner were docketed.
On April 1, 1938, the respondent requested permission to file a
brief and for oral argument. Pursuant to notice, a hearing was held
before the Board on May 5, 1938, and July 20, 1939, in Washington,
D. C., for the purpose of such oral argument. In each instance the
respondent was represented by counsel but the Union did not appear.
On January 11, 1939, counsel for the Board and counsel for the
respondent, with the consent of the Union, entered into a stipulation
relating to certain pay-roll data. The stipulation is hereby made
part of the record.
The Board has considered the exceptions to the Intermediate
Report and the brief filed by the respondent and, save as consistent
with the findings, conclusions, and order hereinafter set forth, finds
them to be without merit.
2 The Trial Examiner subsequently recommended the dismissal of the complaint as to cer-
tain of the individuals included in. these mollens.
283030-41-vol. 19--36
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT'
Phelps Dodge Corporation is a New York corporation with its
principal office in New York City. The business of the respondent and
its subsidiaries comprises operations in the copper industry, which
include mining, milling, smelting, refining, and fabricating. Gold
and silver are also recovered from the respondent's ores. In addition
to marketing copper in refinery shapes, copper and copper alloys are
also marketed in the form of products fabricated by a subsidiary.
The respondent conducts its copper-mining operations at Bisbee,
Jerome, Ajo, and Morenci, all in Arizona.' It operates smelting
plants at Douglas, Clarkdale, and Clifton, Arizona. A- wholly
owned subsidiary of the respondent, Nichols Copper Company, is en-
gaged in both smelting and refining at Laurel Hill, New York City,
and in refining at El Paso, Texas. In addition to refining the re-
spondent's production, the Nichols Copper Company carries on a cus-
tom business, including both purchase and treatment of ores, blister,
and scrap.
Another wholly owned subsidiary of the respondent, Phelps Dodge
Copper Products Corporation, operates fabricating and manufactur-
ing plants located at Bayway, New Jersey; Fort Wayne, Indiana;
Yonkers, New York; and Los Angeles, California. Products of these
plants include a great variety of copper and copper-alloy manufac-
tures. Other activities of the respondent and its subsidiaries include
the operation -of a coal mine at Dawson, New Mexico, a railroad be-
tween Jerome and Clarkdale, Arizona, and the operation and main-
tenance of 'general merchandise stores and other services in the
localities in which its mining properties are situated .5
The proceedings in this case are concerned only with the respond-
ent's Copper Queen Branch, Mines Division, situated in the Warren
Mining District at Bisbee, Arizona.
In 1936 the Copper Queen Branch, Mines Division, hereafter re-
ferred to as the Mines Division, produced 795,946 dry tons of ore.
Of this, 785,061 tons of copper smelting ore were shipped to the
8 Most of the facts in this section are derived from stipulations between counsel and the
Registration Statement , signed May 24, 1937, filed by the respondent with the Securities and
Exchange Commission.
I The Montezuma Copper Company and the Compania Minera de San Carlos, S. A.. both in
Mexico, are mining companies owned by the respondent.
8 Among these subsidiaries are the following utilities : Ajo Improvement Company , Warren
Company, The Morenci Water Company, and Upper Verde Public Utilities Company, all doing
business in Arizona ; Mercantile corporations : Phelps Dodge Mercantile Company, doing
business in New Mexico and Arizona , and New Cornelia Cooperative Mercantile Company,
doing business in Arizona ; and the Cochise Publishing Company, Bisbee , Arizona.
PHELPS DODGE CORPORATION 551
smelter of the Copper Queen Branch, Smelter Division, located at
Douglas, Arizona ; 10,453 tons of basic sulphide ore were shipped to
the smelter of the American Smelting and Refining Company situated
in El Paso, Texas; and 432 tons of'silver-lead ore were shipped to the
refinery of the Nichols Copper Company, also located in El Paso,
Texas. Of the 967,249 dry tons of ore produced by the Mines Di-
vision in 1937, 200 tons of silver-lead ore were sent to the Nichols
Copper Company Refinery at El Paso, Texas, while the rest was sent
to the smelter at Douglas, Arizona.
In the course of its operations at the Mines Division in 1936, the
respondent used 593,347,000 cubic feet of natural gas, purchased from
the El Paso Natural Gas Company and transported by pipe line'from
the State of New Mexico. In 1937 it obtained 698,959,000 cubic feet
of natural gas from the same source. There were shipped in from
outside of Arizona 22,841 and 37,177 barrels of fuel oil in 1936 and .
1937, respectively, for use in the operations of the Mines Division.
On June 7, 1935, there was a total of 941 men on the Mines Division
pay roll, while on January 1, 1938, there was a total of 1,414
employees.
All of the ore produced at the Mines Division ultimately finds its
way into interstate commerce. The basic sulphide ore and the silver-
lead ore, constituting about 1 per. cent of the ore mined by the Di-
vision, are shipped directly in interstate commerce to smelters and
refineries at El Paso, Texas. The remaining ore produced .by the
Mines Division is sent first to the respondent's Copper Queen Branch,
Smelter Division, at Douglas, Arizona. Ores are also received at this
smelter from mining companies, owned by the respondent, located at
Morenci and Ajo, Arizona, and in Mexico. The entire output of the
Douglas Smelter is transported in interstate commerce to the refinery
of the respondent's wholly owned subsidiary, Nichols Copper Com-
pany, at El Paso, Texas, where it is converted into various copper
and copper-alloy products. Thus, although the ore produced by the
Mines Division may lose its identity, the record clearly establishes
that it all moves in interstate commerce. The products of the El
Paso refinery are shipped to the various branches of the Phelps Dodge
Copper Products Corporation, located in New York, New Jersey,
Indiana, and California, as well as to other purchasers. At the vari-
ous branches of the Phelps Dodge Copper Products Corporation, the
copper, together with that shipped in from the refinery of the Nichols
Copper Company located at Laurel Hill, New York, is manufactured
into a large variety of products which are then sold, distributed, and
shipped in interstate commerce. During the course of the conversion
of the ore into copper products at the smelter and refinery, it is
mingled with other ores and treated with substances which have been
shipped in interstate commerce. .1 j,
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers, Local
No. 30, is a labor organization affiliated with the Committee for In-
dustrial Organization," admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background of the unfair labor practices
In 1933 the Union was organized at Bisbee, Arizona, and secured
some membership among the employees at the respondent's Copper
Queen branch. On about June 1, 1935, most of the union men were
working in one section of the mine known as the Cole shaft, where
they had been segregated by the respondent. The respondent denied
the fact of segregation, but it is evidenced incontrovertibly by the
first paragraph of a letter dated June 10, 1935, from P. G. Beckett,
vice president and general manager in Bisbee, to Louis S. Cates, pres-
ident of the corporation, located in New York City. The letter
states, "Last week at Bisbee the Mine Department sent over. to the
Cole Shaft four or five non-union men to fill vacancies in that mine.
As you know, the personnel of the Cole Mine is largely union, as we
have tried to segregate the union men there."
On about June 1,, 1935, eight non-union men were transferred to
work in the Cole shaft. Friction developed between the union and
non-union workers. Thereupon, several union members pursued a
course of conduct which endangered the comfort and, to some extent,
the-safety of the non-union men. The latter made complaints to the
management concerning the conduct of the union men. The manage-
ment investigated the complaints and on June 6, 1935, discharged
eight union members working in the Cole shaft.? These discharges,
which occurred prior to July 5, 1935, the effective date of the Act,'
are not in issue under the pleadings, and we make no findings with
respect to them.
On June 7, the day following the discharges, the union officers
called a meeting to advise the members of the discharges and to
determine the Union's course of action. The consensus of ,opinion at
this meeting, as described by William Day, one of the eight discharged
union employees, was
That the time had come that something had to be done imme-
diately. We couldn't stand for this slaughter . . . They are
"Now Congress of Industrial Organizations.
7 The following individuals included in the complaint as allegedly having been subse-
quently discriminatorily refused employment by the respondent were among these eight:
William M. Day and Levi Crandall.
PHELPS DODGE. CORPORATION 553
canning men in groups, and it was a matter of a very few days
until all union men would go in the same manner.
The meeting closed with a virtually unanimous vote in favor of a
strike to be effective from the following Monday morning, June 10.
On June 10, 1935, the strike commenced and a picket line was
-formed. A number of union members and sympathetic non-union
-men, constituting somewhat less than 10 per cent of the respondent's
-950 employees, went out on strike. The mine was not closed but con-
tinued to operate on a curtailed basis for several weeks until it
resumed normal operations. By June 28, 1935, all the strikers' jobs
had been filled."
On August 9, 1935, the Union made an application for the rein-
-statement of the strikers and the men discharged on June 6, 1935.
,On this occasion, the respondent refused to reinstate any of the
strikers on the ground that their jobs had been filled. On August
-23, 1935, a similar request was made by representatives of the Union
and a similar reply was given by the respondent."
On August 24, 1935, the Union officially terminated the strike, and
the picket line disbanded. In the period from August 24, 1935, until
- the date of the hearing, a number of the strikers made individual
applications for reinstatement, but none -of them was reinstated.
B. Refusals to reinstate
The record establishes. beyond question that the respondent was
:actively opposed to the Union from a period antedating the strike.
Counsel for the respondent and counsel for the Board ' stipulated
inter alia and we, find " . . . that just prior to and during the
progress of the strike,- respondent corporation had the Local under
surveillance, but . . . that that -surveillance was discontinued a few
months after the strike was concluded and has not been recontinued
at any time since."
By virtue of its espionage, immediately prior to the strike, the
respondent was enabled to prepare for it. After gauging the prob-
able effectiveness of the strike the respondent determined, to resist
any effort at settlement and, to use the opportunity it afforded to
eliminate permanently the Union from its plant. On June 10, 1935,
the day the strike began, P. G. Beckett, the respondent's vice presi-
dent and general manager at Bisbee, Arizona, wrote Louis S. Cates,
s Murray A . Bateman, the respondent 's employment manager, testified that within the
first week after the strike commenced a few of the strikers abandoned the strike and
returned to work. However , he named only Owen Western . The respondent does not
contend that any of the other strikers were ever reinstated.
That these requests were considered by the respondent to be applications for reinstate-
ment of the strikers is admitted by the respondent in its brief wherein it states that the
requests were refused because "their jobs had been filled."
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent 's president in New York City, a' letter which states in
part:
I am sorry, of course, that this thing [strike] has come about,,
but, honestly, I feel that it had to come sometime and our union
friends are so deplorably weak at the present time that it might
just as well come now as later. For some time their feeling has.
been that they might just as well try and pull a strike as continue
to lose out in the way they have: been doing and finally get sunk
without making a little "play" first.
It is never wise, of course, to under-estimate these things, but.
at the present writing it does not look very. serious. I presume,
the next move will be that the union men will holler for help
from somebody and want arbitration, which we shall decline.
Murray A. Bateman, the respondent's employment manager who,
had full authority over the employment of workers subject only to,
general policy instructions issued by his superiors, testified, and we
find, that about a week after the commencement of the strike he was.
instructed by Captain Hodgson, manager of the mines, to "go slow"'
on reinstating any of the individuals who had gone on strike and
who had appeared on the picket line. Bateman further stated that
this instruction was never altered.
On August 6, 1935, a few days prior to the Union's unsuccessful
effort on August 9, 1935, to obtain reinstatement of the strikers, P. G.
Beckett again wrote a letter to Louis S. Cates. The second paragraph
reads:
The State Federation of Labor people had a meeting in Tucson
the other day, as per the enclosed clipping. I understand that.
a Federation committee of local people, some of them Douglas
boys, has been appointed to see the management and find out
if they can act as conciliators, etc. They will, of course, be told
that there is no way that they can help.
Evidence of what occurred at the conference of August.9, 1935, is
contained in a comprehensive memorandum, dated August 10, 1935,
written by H. C. Henrie, assistant manager, to P. G. Beckett. Henrie
reported, inter alia, that "Mr. Barkdoll advised the committee that
it would be impossible to reinstate these men who had quit the service
of the Company. Their jobs had been filled and the present working
force would not stand for their being reinstated." Henrie further
disclosed that later in the meeting, "We again advised the committee
that the men who had quit could not be reinstated."
As we have already indicated, on August 23, 1935, a group appli-
cation for reinstatement of the strikers was again made by the Union.
PHELPS DODGE CORPORATION 555
The discussions which took place are described in a memorandum
dated August 24, 1935, written by H. C. Henrie, who represented the
respondent at the conference, to P. G. Beckett.
In his memorandum covering the conference of August 23, 1935,
Henrie relates, inter alia:
Mr. Potter 10 then inquired what the Company could do to
settle the present trouble, and stated that if the men who still
remained in the District were put back to work the strike could
be settled.
I advised the Committee that two conferences had been held on
this matter ... The position of the Company as outlined in the
two former conferences had not changed, and there was nothing
new to add on the subject.
The news of the termination of the strike on August 24, 1935, was
announced to Beckett in the form of a postscript attached.to Henrie's
memorandum of the same date.- The postscript reads as follows:
AUGUST 26, 1935.
The Bisbee Miners' Union on Saturday, August 24th, voted to-
terminate the present strike.
The vote, which was by secret ballot, resulted in thirty votes for
terminating the strike and ten votes for continuing.
We may experience a little difficulty from some of the men
who will seek reinstatement, since I am advised that the Officers
of the Union told their members at Saturday night's meeting
that many of them would be re-employed by the Company.
The local Union has advised the International Officers that the
strike has been terminated.
Other evidence of the respondent's studied discrimination against
the strikers is found in the notations regarding their strike activities
made by the respondent on their individual employment cards. These
notations were typewritten upon the employment records of all ex-
cepting a few of the individuals involved in the complaint. In over
25 cases there is a notation to the effect that the employee appeared on
the picket line. A few samples of the notations follow.112
Walked out when strike was called-Whole family also-Was
on picket line all during strike-Arrested for beating up Larry
Kuder.
10 William Day, Dave Lytle , and A. B. Potter represented the Union.
11 The evidence concerning espionage was developed at the hearing when Henrie was
confronted with this memorandum as well as certain telegrams dated August 25, 1935,
announcing the cessation of the strike.
"They appeared on the respective employment cards of Grover D. Windsor , Clyde Bige-
low, William Henry Bigelow, William H. Windsor , William Edward Sharp, and H. D. Edge_
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walked out when strike was called and picketed, as well did
his wife.
Walked out when strike was called-Was on picket line as well
was his wife and mother.
Walked out when strike was called-with all the rest of the
family-Was on picket line through strike.
Did not report for work when strike was called-bad actor
on picket line.
Walked out when strike was called and he and wife picketed
all during strike.
Bateman, the employment manager, explained that he noted the
employees' appearance on the picket line solely for the purpose of
dropping them from the pay roll. The notations on the cards recorded
above controvert this explanation since the ascertainment of the fact
that the striker had left his employment did not require the detailed
notations of the individual's and his family's strike activity as recorded
above. We find that the respondent compiled a permanent record of
the strike activities of its employees and utilized it as a "blacklist"
in excluding the strikers from its employ.
The record is replete with anti-union statements attributed by
applicants to Bateman. According to the applicants, in these con-
versations, Bateman assigned their concerted strike activity as the
reason for denying them reinstatement. We shall describe only some
of the conversations.
Montague Reed, one of the strikers, testified as follows: During
the course of the strike, on June 21, while calling for his pay check,
he encountered Bateman who inquired whether he had removed his
clothes from the locker room. Reed responded, "No, I haven't. The
strike isn't over yet and I haven't moved them."' Bateman there-
upon advised Reed, "Well, we want you to clean them out because
as far as you fellows are concerned the strike is never going to be
ended for you." Bateman admitted that he requested Reed to empty
his locker but denied making any remarks -relative to the strike.
Jesse Edge, a striker, testified to the following effect: He called for
his pay slip in Bateman's office on about June 22, 1935. Upon this
occasion Bateman asked him why he did not return to work. When
Edge responded that he "was out on strike," Bateman informed him
that if he did not go back he would never work for the company
again. This conversation was not denied by Bateman other than by
its inclusion under Bateman's general denial that he never made any
statements to strikers pertaining to the Union or the strike.
William Day testified to the effect that by August 21, 1935, the
Union realized that it was doomed to defeat and sought to put the
men back to work. Early on that morning, according to Day, about
PHELPS DODGE CORPORATION 557
25 or 30 pickets gathered behind a similar-sized group of applicants
at the employment office. The following excerpts from the record
describe Day's version of what then transpired :
Q. And Mr. Bateman, you say, came out onto the platform
and said what?
A. He said, "Is there any miners here?"
Q. Did anyone reply?
A. I was the first man that spoke up. I says, "Yes, quite a
bunch of us. How about a job?" He says, "Nothing doing."
Irving Caldwell was standing by the side of me. He was a
miner ; he was a, striker. He says, "What about my job ?" And
from that it was repeated on up. They was kind of in a line on
the outside of the young kids there. We call them "rustlers."
Q. In other words, the crowd was of two groups : The rustlers
close to the porch, and the pickets behind them away from the
porch?
A. The pickets were on the outside of the crowd that come up
there to rustle.
Q. I see.
A. What you might say, in the same group. However, they
were closest.
Q. And others called out, "What about my job?"
A. A good many others called and says, "What about my job?"
It was repeated.right on around.
Q. Did Mr. Bateman make any reply?
A. He says-shook his head. He says, "There's nothing do-
ing." He says, "You fellows will never work for the Phelps
Dodge Company again." I says, "Wait a minute! Now, just
who do you .refer.: to,, as `You_fellows' ?" He turns _,back _ to.,me
and he says, "You strikers."
Q. Was anything further said?
A. Yes. I said, "Well, you must have told I. V. Pruitt [sheriff
of Cochise County] that. He has informed two or three times
the boys that we could never go to work again."
Q. Did Mr. Bateman make any reply?
A. He said, "I never told Pruitt that, but," he says, "I'm tell-
ing you," just in about that tone of voice.
That portion of Day's testimony which attributes to Bateman the
statement that the strikers would never work for the respondent
again was corroborated by the testimony of four other witnesses, all
strikers, who were present on that occasion. On the other hand Bate-
man's denial finds some support in the testimony of W. H. Crane,
Irvine Earl Newton, Earl Herbert, and W. E. Simpson.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Simpson admits that he heard someone shout , "How about my job?"
but testified that Bateman made no answer thereto.
Crane was hired by the respondent on August 22, 1935. His test-'
mony is so vague and unrelated to the facts that we can give it no
credence whatsoever.
Newton testified that he was hired on August 22 and was not
present on the preceding day. His testimony in other respects is also
unconvincing. If we are to credit this witness' testimony concerning
the date of his employment , then his testimony regarding the August
21 incident is of no value since he would not have been present.
Herbert, the last witness who substantiated Bateman's denial of
the statement allegedly made on August 21, 1935, was employed on
September 25, 1935. He testified that he "rustled" on August 21,
1935 . When asked how he recalled the date, August 21, 1935, he
gave the following explanation at the bearing:
Q. How do you remember the exact date although you don't
remember any other dates except the one on which you got your
job ?
A. That was the first time I really got in to talk with Mr.
Bateman, and I went home and talked to the wife, and she said,
"Well, remember it. We might want to refer to it."
Q. Your wife suggested that you remember that date?
A. Yes.
Q. Did she say why you might want to refer to it?
A. No, not exactly.
This witness testified also that on August 21, 1935, he preceded Bate-
man into the employment office. Thus it is possible that Bateman
might have made the controverted statement in the brief interval
which elapsed before he followed the witness into the. employment
office.
Lester F. Bethel testified that about 5 days after the strike ended
he spoke to Bateman about a job. Bethel claims Bateman said that
'"the company had never expressed themselves as to what they were
going to do with the striking men." Bethel testified that he re-
turned to see Bateman in December 1935 and that on this occasion,
Bateman remarked, "You have an outstanding record, signed by
Harry Lavender , but I cannot make no exceptions in your case."
Bethel further testified that in - May 1936 he met Bateman in the
bus waiting room in Lowell and that in response to his query Bate-
man advised him that union men were not yet being hired.
. Frank Peterson testified as follows : About a week after the strike
was over he solicited a job from Bateman. In reply to Bateman's
inquiry , Peterson admitted that he had served on the picket line.
PHELPS DODGE CORPORATION 559
Thereupon he was told that "the company hadn't decided yet what
they was going to do with us fellows."
Martin Vaclav testified that in the latter part of August within.
a week after the strike ceased Bateman answered his request for a
job by saying, "that there wag no need for me to come up there
because he couldn't give me a job because I was one of the men
that come out on strike."
Anson Perry Windsor. testified that Bateman denied ' his applica-
tion for employment in either the last part of August or the first
part of September 1935. Windsor claims that Bateman told him
that "there wasn't nothing for me, or `any of my kind,"' and that
Bateman's explanation of this latter remark was that they had taken
:a too important part in the strike.
Joe Henry Dunkerson testified that his efforts to obtain employ-
ment with the respondent several days after the strike met with
failure. He claims that Bateman told him that he had no chance
for a job and that they had done nothing about the strikers yet.
Paul Amaro testified to the following effect: He sought employ-
ment from the respondent in the first week of September 1935. Bate-
man advised him that "he could not consider a job for me or any
other striking miner."
William Graham testified as. follows : In the first week of Septem-
ber 1935, he asked Bateman if there was any chance of going to
work for the respondent. Bateman replied that "the committee had
to pass on all of the men that were hired, and the committee would
not pass on any man that came out on strike." Bateman did not
give any particulars concerning the committee to which he referred.
Clyde Bigelow testified that in September 1935 he requested em-
ployment from Bateman and was refused on the ground that "they
hadn't reinstated any of the striking miners yet." Clyde Bigelow
testified also that he made another unsuccessful effort to get a job
from Bateman in December 1936. The following excerpt from the
record describes Bigelow's account of what was said :
Q. What did you say to Mr. Bateman at that time?
A. I asked him if I could get a job now, and he said, "What?
Back again?" I said, "Yes." He said, "Well, you're a glutton
for punishment." "Well," I said, "What have they decided to
do?" "Well," he said, "we ain't going to reinstate any of the
men." "Well," I said, "Will there be any use of me rustling
again?" And he said, "No."
Edgar Lewis Hargus testified as follows : Sometime in the last
part of October or in November 1935 he applied to Bateman for a
job. In response to his query, "How's the chance to go back to
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work?" Bateman replied, "The company will never hire you, Ed,
or none of the fellows that was on strike or on the picket line."
Vernon Dell Curtis testified as follows : In October or November
1935 he inquired of. Bateman, "How's the chance to go to work? Its
pretty tough bucking relief." Bateman's only response was, "There's
no chance of the likes of you to get a foothold in this camp again."
He happened to meet Bateman in a recreation place in the summer
of 1936. In"reply to his request for a job, Bateman answered, "In
300 years we will give you fellows a job again." Bateman admitted
making this statement but explained that he was not on duty at the
time and that he does not always speak in a serious vein in his
conversations.
Frank Erkkila testified that about November 1, 1935, Bateman
answered his application for employment with, "Well, you were in
the picket line, weren't you ?"
Wilfred Davis Mortenson testified that the last of November or the
first of December 1935, his request for a job.-was refused by Bateman,
who said, "Mortenson, if you want a job you will have to go to a
union camp to get it.-There is nothing in Bisbee for you."
Henry Waters testified that in December 1936 he asked Bateman
for a job and that Bateman told him that "he couldn't do a thing for
me" and that "you just as well go to a union camp."
The foregoing statements which the above witnesses attributed to
Bateman, with one exception already noted, were denied by Bateman
either specifically or under a general denial that he had ever made
remarks of that nature. We do not credit his denial for various
reasons. First, a large number of witnesses whose credibility we have
no reason to doubt testified to statements of the same tenor made by
.,:,;.him on different.. occasions in. response -to.requests for employment.
Second, the statements attributed to Bateman are consistent with and
explained by the respondent's determination to deny reinstatement to
strikers, as revealed by other evidence heretofore discussed. Finally,
consideration of all Bateman's testimony does not impress us with its
reliability. For instance, he testified that he was ignorant of the
policy of segregating union members in the Cole shaft just prior to
the strike. Since the evidence established the existence of that policy,
it seems unlikely to us that the respondent's employment manager,
whose duties involved the handling of personnel problems, would be
unaware of the policy. In view of the respondent's admitted acts of
espionage and detailed records of strikers' activities, the same con-
clusion applies to Bateman's assertion that he possessed only slight
information concerning who were members of the Union. Upon
all the evidence we find that Bateman did, in substance,` make the
statements ascribed to him by the complaining witnesses.
PHELPS DODGE CORPORATION 561
Montague Reed spoke to Keith Davey in June 1936 when Davey was
substituting as employment manager while Bateman was on vacation.
Reed testified and we find as follows with respect to a conversation
that took place in a bar at Brewery Gulch : He asked Davey "If there
was any chance of going to work for the Queen again," stating "if
there was I would come and rustle." Davey replied that "there never
was any chance for me to come back there and go to work and no
other fellows that was out on strike." Davey did not testify at the
hearing.
W. M. Day testified that on December 8, 1937, he applied for a job
from J. G. Berlendis, employment manager who replaced Bateman
about August 1, 1937. Day testified to the following interview :
"Well," he says, "did you ever work for the Company before?"
I says, "Yes, I worked quite a few years for the company."
"I know that you have got my record and there is no use in going
into any delay or anything of that kind. I have worked here
and we had a little trouble here in 1935, and I come out on strike."
I says, "Of course, you have that record and I have not been
able to get back to work, but," I says, "do you fellows aim to
hold that against me?"
"Well," he says, "I don't know whether we do or not." But he
didn't tell me to come back.
That the respondent's hostility to the Union was not altered . or
abated during the years succeeding the strike is evidenced by 'corre-
spondence in July 1937 between the respondent' s officials concerning a
new organizational campaign of the Union. On or about July 13,
1937, the union organizers handed out literature outside the respond-
ent's gates . The respondent's attitude toward this development is
reflected by the following letter written by H. M. Lavender, general
manager :
AIR MAIL
JULY 14, 1937.
Mr. L. S. CATES,
President, Phelps Dodge Corporation,
40 Wall Street, New York, N. Y.
DEAR MR. CATES : Yesterday, Tuesday, near the entrance to the
Junction and Campbell Mines were groups of C. I. O. distributing
hand-bills, a sample of which is enclosed. Some of these dis-
tributors were former employees of Phelps Dodge who went on
strike in 1935 and were subsequently employed by the Shattuck-
Denn. Whether any outside organizers were present has. not yet
been determined.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The incident in itself is unimportant except that it shows x
change in tactics. While literature of a similar nature has been,
previously distributed in the Bisbee District, this marks the first
time since 1935 that they have attempted solicitation on or adjoin-
ing Phelps Dodge property. The thought occurs that the C. I. O.
is attempting a "Ford Demonstruction" [sic] in the hope that we
will counter with some aggressive measure which would give them
a wonderful opportunity to cry "oppression" and appeal to the
N. L. R. B. for a hearing, which would be granted without a
shadow of doubt. We have instructed our watchmen to ignore
these groups so long as they stay outside the company fenced
property and are cautioning the employees to likewise ignore
them. This, I think is the most effective measure and will be our
present policy if the C. I. O. continues their propaganda.
We are hopeful that any open conflict can be avoided but the
situation in the District is such that a clash between the two
groups might occur at any time. I was told, confidentially, that
a showdown is inevitable between the Union and Shattuck-Deem.
The 3rd of July night shift was turned back at the collar of the
Denn Shaft by the leaders and this and other acts indicate that
the Union may at any time insist upon a closed shop with check-off
which I am told will not be granted.
I am not alarmed over this latest move but am simply passing
it on for your information.
Yours very truly,
HML-B
Encl.
General Manager.
A few days later Lavender sent the following letter to Cates with
respect to the same incident:
AIR MAIL
JULY 17, 1937.
Mr. L. S. CATES,
President, Phelps Dodge Corporation,
419 Wall Street, New York, N. Y.
DEAR MR. CATES : I am enclosing herewith a copy of the latest
handbill passed out at the gates of the Junction and Campbell
shafts, yesterday, Friday afternoon. Shuper, state organizer for
C. I. 0., is in charge of these men who again,resumecl distribution
of this literature. About eight men were stationed near the Junc-
tion gate and four at the Campbell.
We will continue our policy of ignoring il:eir presence as long as
they stay outside the property fence, and will attempt to have
PHELPS DODGE CORPORATION 563
the men and authorities do likewise. As before explained, it is so
very evident the objective they are asking that we are determined
not to play into their hands.
We have reviewed the evidence relating to the respondent's attitude
toward the Union and its adherents who participated in the strike.
There remains for consideration the questions of whether or not there
were jobs available for the strikers 13 after the strike and, if so, whether
the strikers were denied reinstatement for discriminatory reasons.
Of the 45 named in the complaint as discriminatorily denied
reinstatement by the respondent, all except 914 had at some time
worked for the respondent as miners or muckers. If the respondent
was hiring muckers and miners at the time the 45 were denied rein-
la The respondent in a stipultion , dated January 11, 1939, provided the following statis-
tics relative to its pay roll. On August 9, 1935 , there were 1,012 persons on the pay roll
of the Copper Queen Branch , Mines Division . Between August 9, 1935 , and January 27,
1938, the date of the hearing , the respondent experienced the following pay-roll
fluctuations :
Number
Month hired
Number
leaving
August 1935 (from 9th on) --------------------------- 24 69
September 1935------------------------------------- 35 53
October 1935---------------------------------------- 56 22
November 1935-------------------------------------- 27 11
December 1935-------------------------------------- 27 16
January 1936--------------------------------------- 63 22
February 1936-------------------------------------- 31 Ill
March 1936----------------------------------------- 45 16
April 1936------------------------------------------ 56 24
May 1936 ------------------------------------------ 95 18
June 1936------------------------------------------ 45 35
July 1936------------------------------------------- 74 36
August 1936 ---------------------------------------- 112 44
September 1936------------------------------------- 132 67
October 1936---------------------------------------- 78 42
November 1936-------------------------------------- 70 36
December 1936-------------------------------------- 75 30
January 1937--------------------------------------- 145 75
February 1937-------------------------------------- 144 66
March 1937----------------------------------------- 127 53
April 1937------------------------------------------ 146 57
May 1937------------------------------------------- 166 59
June 1937------------------------------------------ 146 62
July 1937 ------------------------------------------ 68 61
August 1937 ---------------------------------------- 109 85
September 1937 ------------------------------------- 87 137
October 1937---------------------------------------- 22 370
*ovember 1937-------------------------------------- 19 82
December 1937-------------------------------------- 9 186
January 1938 (to 27th) ------------------------------ 16 36
Totals---------------------------------------- 2,249 1,891
The net gain in the number of employees as a result of the turn -over between August 9,
1935, and January 27, 1938. the date of the hearing , amounted to 358. Of the total num-
ber of 2 ,249 occasions on which persons were hired , approximately 1,800 were hired either
as muckers or miners . Only about 475 of these miners and muckers were listed as having
previous experience in the respondent 's service . Out of the total of 1,891 persons who
left the respondent 's employ, approximately 1,400 were either muckers or miners.
14 These are J. P. Foley, E . A. Curtis , George Gerhardt, William E. Sharp , Michal
Mihelich , P. C. Lytle, Jesse Edge , J. M. Morris , and Herschel J. Montgomery.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement it is clear that at least 36 of them could not have been
refused employment because of any lack of experience. The nine
who had not previously worked for the respondent as miners or
muckers had apparently been employed at jobs requiring greater
skill.15 Inasmuch as employees are often hired as muckers and
are later advanced to more skilled employment, and in view of the
fact that there is a considerable amount of interchange of positions
among the respondent's employees, as manifested in the work history
of the employees involved in the complaint, we find no reason to
believe that persons engaged in the type of work performed by these
nine could not have been reemployed as muckers.
Between August 9, 1935, the date of the strikers' first mass appli-
cation for reinstatement, and August 24, 1935, the date of the
termination of the strike, the respondent hired 21 miners and muck-
ers, 15 of whom had not been in the respondent's employ prior to
that time.16 Between August 9, 1935, and January 1, 1936, the
respondent hired 40 miners and 116 muckers. Of these, only 7 had
previously worked for the respondent more recently than the 45
persons involved in the complaint. Thus, it is clear that there
were at least 149 jobs for miners and muckers during that period
for which those who participated in the strike might have been
hired. We therefore conclude that before January 1, 1936, there
were jobs available for all of the 45 against whom the respondent
is charged with discriminating.
The record in its entirety compels the conclusion that the respond-
ent prior to the effective date of the Act definitely embarked upon
and thereafter systematically pursued a policy designed to destroy
the Union. Its segregation of union members in the Cole shaft,
its admitted espionage activities, its interoffice correspondence, its
instructions to the employment manager, its blacklist of the strikers,
its statements to individual strikers who sought reinstatement-all
demonstrate a single purposeful course of conduct. Its refusal after
August 9, 1935, to reinstate any striker or rehire any person asso-
ciated with the Union either as picketer or otherwise, despite the
substantial turn-over among its workers, represented the consumma-
tion of that purpose and plan. We find that from the inception
"The persons named in the preceding footnote had last worked as motor swamper,
boilermaker's helper , powdermen , motorman, steel sharpener , blacksmith's helper , timber-
man, and repairman.
" The stipulation entered into by the parties after the close of the hearing showed all
persons employed or ,reemployed by the respondent at its Nines Division between August
9, 1935 , and January 27, 1938. In August and September 1935 the number of employees
who were dropped from the pay roll of the respondent exceeded the number who were
hired . This is explained in part by the fact that in both of these months a large propor-
tion of the persons dropped from the pay roll were watchmen . In every other month.
however , until September 1937 , the number of persons hired exceeded the number of
persons dropped from the respondent 's pay roll.
PHELPS DODGE CORPORATION 565
of the strike the respondent adopted and thereafter executed a sys-
tematic policy of excluding strikers and persons associated with the
Union from the ranks of its employees.
The respondent maintains that of the 45 persons involved in the
complaint 37 voluntarily left its employ on June 10, 1935, and the
remaining 817 were not in its employ on or immediately prior to
that date. It urges, therefore, that none of the complaining wit-
nesses were its employees on July 5, 1935, the effective date of the
Act, and hence are not within the protection afforded by the Act?,
We shall examine this contention first with respect to the 3819 indi-
viduals who ceased work on June 10, 1935, and then with respect
to the other 7.
Section 2 (3) of the Act provides:
The term "employee" shall include any employee . . . and shall
include any individual whose work has ceased as a consequence of,
or in any connection with, any current labor dispute, or because
of any unfair labor practice... .
Section 2 (9) of the Act provides:
The term "labor dispute" includes any controversy concern-
ing terms, tenure or conditions of employment....
We find that the strike was a labor dispute 20 involving a contro-
versy over the tenure of employment of the eight union members
discharged on June 8, 1935; that the strikers' work ceased as a con-
sequence of that labor dispute which was current on July 5, 1935,21
the effective date of the Act; and that the strikers retained their
11 These eight individuals are William Day, Levi Crandall, John P. Foley, William
Daugherty, Grover Cornet, Leonard Guess . Vernon Dell Curtis, and Richard Johnson.
We find infra that Grover Cornet was an employee of the respondent within the meaning
of the Act on June 10, 1935, the day the strike began.
18 This aspect of the respondent 's contention was framed in its brief in terms of rem-
edy-viz ,". . . the Board has no authority to order reinstatement or back pay."
19 This figure includes Grover Cornet. See footnote 17, supra.
20 The respondent urges that for various reasons the action of its employees on June 10,
1935 , did not constitute a strike and that such individuals did not acquire the status of
striking employees . There is no merit in that contention.
21 The respondent contends that even if there was a strike on June 10, 1935, the strike
ceased to be current before July 5, 1935, because the strikers ' jobs had been filled before
that date , and that hence the strikers did not enjoy the status of striking employees on
that date . While the filling of jobs is one of the criteria for determining whether a strike
continues in existence , it is neither determinative nor controlling on the issue. See the
comment on subsection ( 2) of Section 21 of Chapter 38 of the Restatement of the Law of
Torts where the precise point at issue is treated in the following language : "Under the
definition in Subsection ( 2), of the Restatement of Torts, Proposed Final Draft No. 6
(April 4, 1939), workers are employees in their relation to the employer against whom
they are on strike, or by whom they are locked out, so long as the strike or lockout con-
tinues. This does not mean that they retain all their rights, powers, privileges and duties
as employees . It does not mean that they are entitled to wages , for example , or that they
have the power to subject the employer to liability to third persons . It means merely
that so long . as the strike or lockout continues they retain the privileges and liabilities of
concerted action by employees. For this purpose a strike does not necessarily end when
283030-41-vol. 19-37
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status as striking employees on that date.2L As such striking em-
ployees they were entitled to protection against the unfair labor
practices denounced by the Act.23 .
While it is true that the strikers' jobs had been filled by June 28,
1935, they occupied the status of striking employees on August 9,
1935, the date of their first mass application for reinstatement '14 and
as striking employees were entitled to consideration upon a non-dis-
criminatory basis for reinstatement to jobs as vacancies occurred.
In the period between August 9 ' 1935, and August 24, 1935, 21 vacan-
cies were filled, but the respondent, despite knowledge of the strikers'
desire to return to work, reinstated none of them.2r, Thus, in accord-
ance with its predetermined and fixed policy, the respondent denied
them consideration for reinstatement simply because of their strike
and union activities. In barring the strikers from employment when
jobs were available, solely because of the fact that they were strikers,
we find that the respondent unlawfully discriminated against all of
them to discourage membership. in a labor organization and thereby
committed unfair labor practices within the meaning of Section
8 (1) and (3) of the Act. We further find that on and after August
24, 1935; when the strike was formally ended, the strikers retained
their status as employees since between August 9, 1935, and the
former date,' the resumption of their status as working employees
had been discriminatorily denied them by the respondent's unfair
the employer fills the places left by the strikers . The strike continues so long as the
workers have not abandoned it by taking permanent employment elsewhere or otherwise,
even though the employer has filled their places and is operating at normal capacity.
When workers are still continuing their concerted strike activities and their efforts to
prevent normal operations , their replacement cannot be regarded as permanent. It is
probably true today that most men taking jobs so made vacant realize from the outset
how tenuous is their hold . On the other hand, the mere fact that a strike or lockout has
not been officially called off , as by a union vote or other declaration , is not conclusive
evidence of its continued existence . It may be abandoned without such official action.
The issue is one of fact in the case of a strike , whether or not the employees are still
seeking by concerted action to return to their work and achieve some or all of their de-
mands. When the concerted action has ceased, the individual action of workers who
remain aggrieved is not subject to the rules stated in this Chapter" ( see SS 766-774).
'a The respondent urges that the Act should not be given retroactive application. In
our view the Act is being applied not retroactively but prospectively , since the employees
were striking employees on July 5, 1935.
zs Mackay Radio & Telegraph Co. v. N. L. R. B., 304 U: S. 333.
21 The strikers made two mass applications for reinstatement , on August 9, 1935, and
August 23 , 1935, and the majority of the strikers made one or more individual applications
either before or after those dates, yet none of them was reinstated. Some strikers did not
apply individually after August 23, 1935. We find that in view of the respondent's deter'
urination not to reinstate any of them , which was known to the strikers , individual appli-
cation was futile and became unnecessary . See Matter of Sunshine Mining Company and
International Union of Mine, Mill and Smelter Workers, 7 N. L. R. B. 1252; Matter of
Carlisle Lumber Co. and Lumber & Sawmill Workers' Union , Local 2511, Onalaska, Wash-
ington, and Associated Employees of Onalaska., Inc., Intervenor, 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).
95 Although all the strikers could not have been reinstated during that period since only
21 jobs were available , each of them had a valid claim to consideration for reinstatement
to available jobs.
PHELPS DODGE CORPORATION 567
labor- practices. After August 24, 1935, the respondent continued
its discrimination against them although large numbers of jobs
became available.
However, even if, contrary to our finding, after the termination of
the strike on August 24, 1935, the status of the 38 strikers was not
that of employees within the meaning of the Act, the Act protected
them against discrimination to discourage membership in a labor
organization. The seven individuals who were admittedly not em-
ployees were likewise protected. On this precise point we repeat
what we have recently said in Matter of Waumbec Mills, Inc. and
United Textile Workers of America: 26
It is well established that the Act is not intended to interfere
with the normal exercise of the right of the employer to select
its employees or to discharge them. The respondent's contention,
however, that the Act has no application whatever prior to the
formation of the employer-employee relationship is clearly and
specifically contradicted by the terms of Section 8 (3) of the
Act which provides, "It shall be an unfair labor practice for
an employer-By discrimination in regard to hire or tenure of
employment or any term or condition of employment to en-
courage or discourage membership in any labor organization :
" A reference to the legislative history of the Act indicates
that the provision means exactly what it says. In addition, the
broad purpose of the Act to further industrial peace by "en-
couraging the practice and procedure of collective bargaining'
is irreconcilable with' the proposition that employers may debar
union applicants with impunity.
Section 8 (1) of the Act likewise covers a discriminatory re-
fusal to hire as well as a discriminatory discharge. Simply
stated, Section 8 (1) makes it an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the
exercise of their rights of self-organization and collective bar-
gaining. One form of interference, restraint, and coercion is the
discharge for union membership or activities of an individual
already employed. Another such form is the refusal to hire an
individual seeking employment for the same reasons. Each is
an open warning to all persons already employed, and it is the
interfering, restraining and coercive effect upon these employees
that constitutes the violation of Section 8 (1) in both cases.
Hence it is immaterial whether the individual discriminated
against is already an employee or merely an applicant foi-
employment.
2015 N. L . R. B. 37.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since discrimination in hiring is as telling a form of inter-
ference with self-organization as any other and as much an in-
citement to disputes burdening and obstructing commerce, such
discrimination is plainly in conflict with both the policy and
purposes of the Act.
We have hereinabove found that the respondent systematically ap-
plied a general policy of refusing to reinstate or hire persons who
participated in the strike . This mass discrimination for engaging in
concerted activities in behalf of the Union, however, is negatived in
some individual instances by other factors which will be discussed as
we consider each individual case below.
William M. Day was first employed by the Calumet & Arizona Com-
pany in April 1929. In 1931 that company and the respondent merged.
After the merger Day continued in the respondent 's employ. At the
,end of April 1935 Day was transferred from the Campbell shaft to
the. Cole shaft . On June 6, 1935, while coming off the shift, Day
was discharged by the mine foreman, Ratteree . The circumstances
surrounding the discharge of Day and seven other persons on June
6, 1935, have already been set forth in the description of the events
preceding the strike.27
We find that Day was discharged prior to July 5, 1935, and was
denied reinstatement , not because of his union membership and
activities , but for other reasons.
Levi Crandall was first employed by the Calumet & Arizona Com-
pany in 1927 . After the merger he worked continuously until he was
discharged on June 6, 1935. The reasons and circumstances attending
his discharge are the same as those applicable to Day.
We find that Crandall was discharged prior to July 5, 1935, and
was denied reinstatement , not because of his union membership and
activities , but for other reasons.
Johan Patrick Foley entered the employment of the Calumet &
Arizona Mining Company in 1926. At the time of the merger in 1931
he was transferred to the pay roll of the respondent . He worked con-
tinuously for the respondent until January 15, 1935. There was tes-
timony to the effect that for a few months prior to this date the fore-
man had complained that Foley was not doing a sufficient amount of
work. On this date he obtained a 30-day furlough from the re-
spondent . He thereupon set out for Mojave, California , where he,
found a job. He overstayed his furlough without notifying the
respondent . Foley returned to Bisbee on May 30 and sought employ-
ment with the respondent on June 1, 1935. Bateman asked him to
return in a few days . Foley testified and we find that he returned on
June 4, 1935, and that Bateman said , "John, as far as safety and work-
27 See Section III , A, supra.
PHELPS DODGE CORPORATION ' 569
ing conditions are, your record is good, but they have something
against you" and that Bateman further stated, "John, you need not
never come back here no more . . . I'm hiring men, but I won't
want'you." Thus Foley was refused reinstatement prior to the effec-
tive date of the Act, for reasons which, while equivocal, bear no
apparent relationship to his union membership or activities.
Foley was a member of the Union and served on the picket line
throughout the strike. He never applied for work after June 4, 1935.
We find that the respondent refused employment to Foley, not
because of his union membership and activities, but for other reasons.
Herschel J. Montgomery was first employed by the respondent in
1909. He worked at intermittent periods for the respondent until
June 10, 1935, when he joined his fellow union members out on strike.
In regard to Montgomery, A. C. Reifsnider, the respondent's master
mechanic, testified to the following effect : Montgomery came under
Reifsnider's jurisdiction in 1931 when he was assigned to the then
idle concentrator as a watchman. Instead of performing the duties
involved in that task he was repeatedly absent from the premises
both during the daytime and at night. He was never given permis-
sion to leave and he was repeatedly warned to stay on the job. After
2 or 3 months he was relieved of that assignment and placed in one of
the mine change rooms as a change-room attendant. The transfer was
made because of his failure to attend to his duties as a watchman. He
failed to give satisfaction on the new assignment and after a few
months was transferred to the boiler shop as a boilermaker's helper.
In the boiler shop Montgomery still evidenced an indifferent attitude
toward his job. He spent more time talking and arguing than taking
care of his work. In spite of warnings, this continued and in July
1934 he was discharged. Because. of his long service record with
respondent, however, he was given another chance and put back to
work. Reifsnider further testified that he would not willingly have
Montgomery in his employ in the mechanical department because his
service record was unsatisfactory and because he was more of a "de-
moralizing spirit" than "an asset." There was further testimony by
Reifsnider that it was just a matter of months before Montgomery
would have been-'discharged if the strike had not intervened and that
only his long service record had persuaded the respondent to carry
him on so long in spite of his unsatisfactory services.
Although Montgomery denied that he was ever incompetent in his
work, his employment card substantiates in part, at least, the testimony
of the respondent with regard to him.
In view of the fact that the respondent did not deem Montgomery's
employment record an obstacle to his employment prior to the strike
and in view of our findings concerning the respondent's general policy
with respect to reinstatement of strikers, we are not persuaded that
570 DECISIONS OF NATIONAL ; LABOR RELATIONS BOARD
it was the cause of the respondent's refusal to reinstate him. We find
that the respondent refused employment to Montgomery because of
his union membership and activities.
We find that Montgomery has not secured regular employment which
is substantially equivalent to his employment with the respondent 28
William Daugherty, a member of the Union, was first employed by
the respondent in 1925. He worked intermittently for the respondent
until August 1931 when he was laid off because of a reduction in force.
He was reemployed by the respondent in June 1934. His employment
card lists him as being dropped on October 15, 1934. The card further
contains remarks that Daugherty does° not like to work and that not
only were his services unsatisfactory but that his surly disposition was
disagreeable to the bosses.
Although he was in Bisbee at the time the strike occurred he did
not appear on the picket line. He was a member of the Union but he
was not paid up in his dues nor did be attend any meetings. The only
meeting of the Union which he ever attended was the night that he
joined the Union, the date of which he was unable to fix: more accu-
rately than that it was in 1934 or 1935.
After the discontinuance of the strike, the first time that Daugherty
applied for a job with the respondent was about January 15, 1937.
Bateman told him that "If there is an opening over at the Cole 'I will
send,you over there." Daugherty was thereupon' given a physical
examination by the physician. The next morning Daugherty returned
to the employment office and claims that Bateman said, "Daugherty,
I can't send you up there. There was some men down to see me and
they said you called them `scabs,' and I 'don't want no trouble up there."
Daugherty further claims that Bateman said, "There is no use for you
coming here for any more work." Bateman denied these statements
and said that he rejected Daugherty's application because he failed to
pass a physical examination. Daugherty's testimony makes no men-
tion. of the result of the physical examination. The respondent intro-
duced no further proof to substantiate Bateman's claim relative to
Daugherty's failure to pass the physical examination.
In view of the fact that Daugherty's testimony concerning Bate-
man's statement is consonant with the respondent's policy, and in view
of our previous findings with respect to Bateman's testimony, we find
that the respondent discriminated with respect to the hire of Daugherty
because of his union membership and activity.
Edgar Lewis Hargus was first employed by the respondent in 1924
for a period of about 3 months. His last continuous employment
with the-respondent was from 1927 to June 10, 1935. Prior to the
In its brief, the respondent states that it does not contend that Montgomery has
secured substantially equivalent employment.
- - ;-- - PHELPS :DODGE CORPORATION 571
strike he had worked as a miner at a wage of $5 per- day. As a
member of the Union he went out on strike on -June 10, 1935.
He served on the picket line until the last part of July. He sought
employment from the respondent in ,the last part of either October
or November 1935. Bateman informed him "The company will never
hire you, Ed, or none of the fellows that was on strike or on the
picket line." • Hargus' never applied again for a job. with- the
respondent.
Upon the basis of all the evidence we find that the respondent
denied reinstatement to Hargus because he struck and engaged in
concerted activities in behalf of the Union.
After June 10, 1935, for about 9 months Hargus worked inter-
mittently at relief jobs and a variety of temporary jobs. In Feb-
ruary or March 1936 he was employed by the Shattuck Penn Mining
Company as a miner. This mine is located about a half mile from
the Junction shaft of respondent's mine. He retained this job until
December 1936 when he left it for a better job with the Banner
Mining Company in Lordsburg, New Mexico. He worked at his
new job as shift boss for a period of 8 months. He left this job
because he did not like the location and was tired of it. In October
1937 he returned to the employ of Shattuck Denn in Bisbee. Since
that date he has worked there continuously as a miner. His rate
of pay at the time of the hearing was $5.48 per day. At the hear-
ing Hargus expressed a desire to return to the employ of the
respondent.
The respondent contends that Hargus as well as the other com-
plaining witnesses who were ultimately employed by the Shattuck
Denn Mining Company have secured regular and - substantially
equivalent employment. We reject this contention for reasons stated
below.
There is evidence that many of the working conditions and rates
of pay in the Shattuck Denn Mine approximate those in the respond-
ent's mine. Yet there are-marked and substantial differences between
the two companies. First and most important is the difference with
respect to continuity and security of employment based upon the
relative size . of the two companies. At the time of the hearing the
respondent employed over approximately 1,400 persons while Shat-
tuck Denn employed approximately 200 persons. The importance
of this, difference in size was manifested during the period from -1931
through 1934. Shattuck. Denn ceased its operations from 1932 to
1934.. Although the respondent reduced. its force during these same
years, nevertheless it continued to operate. ' A large number of the
complaining witnesses- were employed by. the respondent during that
period when Shattuck Denn employees were without work.-
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Second, the record discloses that the respondent made necessary
lay-offs on the basis of seniority. The possession of seniority rights
is patently a highly desirable adjunct to employment in an industry
where pay-roll fluctuations are as prevalent as in the mining industry.
Third, the respondent's employees desire to maintain continuous
service records. That the respondent itself attached importance to
continuous service records is established by its practice of award-
ing a present to employees in recognition of 10 years of continuous
service without a lost-time accident.
Upon the basis of all the factors enumerated, we find that Hargus
had not secured regular and substantially equivalent employment 21
John Henry Key, a member of the Union, was first employed by
the respondent in 1928 and worked continuously until the depression
commenced. He worked again for the respondent for about a month
in 1931. In 1934 he was reemployed by the respondent and worked
steadily until he joined the strike on June 10, 1935. He was class-
ified as a miner on his employment card and was earning $5 pe.i
day at the time of the strike. He served on the picket line through-
out the entire strike.
Two or three days before the end of the strike, presumably August
21, 1935, in response to Bateman's request for miners, Key, along
with Day and several other strikers, asked for reinstatement. Bate-
man's refusal has already been described. About 6 months after
the strike was discontinued Key again solicited a job from Bateman.
Bateman advised him to return later after he had taken "his case up."
Key returned in about a week and was told, "I can't do a thing for
you."
'Upon the basis of all the evidence we find that the respondent
denied reinstatement to Key because he struck and engaged in con-
certed activities in behalf of the Union.
A resume of the jobs which Key occupied between August 9, 1935,
and the date of the hearing follows : The first work that he secured
was with Shattuck Denn Mining Company in September 1935. He
worked there as a shaftman for. about 21/L? months and voluntarily
quit when that company started concreting. The concreting opera-
tions seriously affected his health. During that period he earned in
excess of $5 per day. In the middle of January 1936 Key journeyed
to Idaho where he obtained a job as shaftman with the Sunshine
Mining Company in Kellogg about February 1, 1936. After about
2 months he quit that job because it was too cold. After doing some
relief work his next job was as a timberman working for Jim
m See ifatter of Mooresville Cotton Mills and Local No. 1221, United Textile Workers of
America, 15 N. L. R. 13. 418.
PHELPS.DODGE CORPORATION 573
McKenna, a lessor. He commenced working for McKenna about
May 1936. He was discharged after 2 weeks. After he ceased
working for McKenna he returned to the employ of the Shattuck
Denn as a machine miner in August 1936. He has worked there
.steadily since that date. His rate of pay at the time of the hearing
was in excess of $5 per day. Key expressed a desire to return to
the employ of the respondent because as he stated, "... I have a
family to feed, and it is the best place to, work. I figure a man can
live longer and it's more sure of your job. Shattuck Denn .. .
you may have a job today, and it is a small outfit, and they may be
closed clown next week." These considerations weighed so greatly
with Key that he, like several other complaining witnesses, indicated
that he would be willing to return to the respondent at a reduced
wage rate if necessary.
The respondent claims that Key had obtained regular and sub-
stantially equivalent employment. The same factors, discussed in
our consideration of Hargus, which induced us to find that employ-
ment with the Shattuck Denn Mining Company does not constitute
substantially equivalent employment, influences us to find that em-
ployment with the Sunshine Mining Company of Kellogg, Idaho,
is likewise not substantially equivalent employment. In addition to
the loss of seniority rights and continuous service record, there are
the additional factors that it is distant from Key's established home
and is unduly cold.
We find that Key has not obtained other regular and substantially
equivalent employment.
George Edward Frazee was first employed by the respondent as
a mucker in March 1934. At the time he went out on strike on
June 10, 1935, he was employed as a miner at a wage rate of $5 per
day. He picketed until the end of the strike. He never applied for
work with the respondent because he felt that it would be useless.
Two or three days after commencement of the strike he heard Bate-
man say, "If you boys don't go back to work tomorrow you will never
work for the company again." Shortly before the strike ceased
(apparently August 21, 1935), he was present when Bateman stated
that the strikers would never work for the respondent again. For
reasons heretofore stated, we regard it as unnecessary for Frazee to
have made individual application for reinstatement.
Upon the basis of all the evidence we find that the respondent
denied reinstatement to Frazee because he struck and engaged in
concerted activities in behalf of the Union.
Between the cessation of the strike and February 1937 when Frazee
was employed by the Shattuck Denn Mining Company as a miner, he
was intermittently employed at various temporary jobs and relief
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. Frazee has worked steadily for the Shattuck Denn Mining
Company at the rate of $5.48 per day. He expressed a preference for
his old job at the respondent' s mine even if it involved a return to
the wages he was receiving on June 10, 1935.80
The respondent claimed that Frazee had obtained regular and sub-
stantially equivalent employment. On some of the temporary jobs
on which he has worked since August 1935, he has earned more money
per day than he was making while with the respondent. In spite of
this fact, however, because of the other factors of seniority, continu-
ous service record as well as distance from his established home, we
find that Frazee has not secured regular and substantially equiva-
lent employment.
Edward Bowden, a union member, first began to work for the
respondent in 1920. He was laid off in 1921 and reinstated in 1922.
He.first began to work continuously for the respondent in 1927. He
worked as a. miner from that date until June 10, 1935, when he joined
the picket line. His last rate of pay while employed by the respond-
ent was $5 per day. On his employment record there are several
remarks denoting the excellent quality of his work. After the strike
Bowden applied to Bateman for a job in the middle of September
1935. Bateman informed him that they had not yet made a disposi-
tion of his case and that it would be useless for him to rustle until
they disposed of it. He never applied again.
Upon the basis of all the evidence we find that the respondent
denied reinstatement to Bowden because he struck and engaged in
concerted activities in behalf of the Union.
In March 1937 Bowden secured a job as a timberman with the Shat-
tuck Denn Mining Company. At the time of the hearing, he was
working there as a timberman at $5.76 per day. During June 1935,
until November of the same year, Bowden worked on relief V days
per month. In November he obtained work with the Arizona Edison
Company. There he earned at first $4 per day for 6 days per week.
Later he was paid a salary of $110 per month, working every day in
the week. Bowden expressed a desire to return to his old job with
the. respondent even if it necessitated a reduction in the present wage
he was earning. We find that Bowden did not secure regular and sub-
stantially equivalent employment.
Paul Amaro, a member of the Union, was employed in March
1934 and worked as a miner until he went on strike on June 10, 1935.
He was earning $5 per day. He appeared on the picket line through-
10 Frazee was receiving $5 per day as a miner in June 1935. The wage rate, apparently,
has increased between that date and the time of the hearing, since there was ample testi-
mony to the effect that the wage rates at the Shattuck Denn Mining Company followed
those of the respondent exactly.
PHELPS DODGE CORPORATION 575
out the entire strike. About the first week in September 1935 Amaro
solicited a job from Bateman. He was told by Bateman that "he
could not consider a job for me or any, other striking miner." That
was the last time Amaro applied for work with the respondent.
Upon the basis of all the evidence we find that the respondent
denied reinstatement to Amaro because he struck and engaged in con=
certed activities in behalf of the Union.
In June 1936 Amaro secured a job as miner with the Shattuck Denn
Mining Company. He was employed there steadily until the date of
the hearing. He earns $5.48 per day. Prior to this employment, be-
sides some relief work, he worked with the Boriana Mining Company,
Kingman, Idaho, from September 1935 until about March 1936. This
labor paid him at the rate of $4.50 per day, working every day in
the week. Amaro prefers to return to his old job with the respond-
ent even if it involves a reduction in the amount of wages he was
currently earning.
The respondent claimed that Amaro had obtained regular and sub-
stantially equivalent employment. For the same reasons which we
set forth in our consideration of the cases of Hargus and Key, we
find that Amaro has not secured regular and substantially equivalent
employment.
Wilfred Davis Mortenson, a union member, commenced to work
for the respondent in July 1929 and was laid off because of a reduc-
tion in force in 1930. He was reemployed as a mucker in April- 1934
and worked continuously until the, occurrence of the strike. At that
date he was working as a miner at $5 per day. He served on the
picket line until the strike ceased. He applied to Bateman for a job
sometime during the last of November or the first of December 1935.
Bateman rejected his application saying, "Mortenson, if you want, a
job you will have to go to a union camp to get it. There is nothing
in Bisbee for you." Mortenson has not applied since that occasion.
On the basis of all the evidence we find that the respondent denied
reinstatement to Mortenson because he struck and engaged ' in con-
certed activities in behalf of the Union.
Since August 1936 Mortenson has been employed as a miner by the
Shattuck Denn Mining Company. Since he has been there he has
earned not less than $5.48 per day. Prior to this job he was employed
as a service-station attendant on a commission basis in Douglas, Ari-
zona. This job, which he obtained in the latter part of October 1935,
yielded him an average income of approximately $100 per month.
Mortenson expressed a desire to return to the. employ of the
respondent. .
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent claimed that Mortenson. had obtained regular and
substantially equivalent employment. For the same reasons set forth
in our discussion of Hargus, we find that Mortenson has not secured
regular and substantially equivalent employment.
Anson Perry Windsor, a union member, was first employed by the
respondent in June 1934. He was listed as a mucker, earning $4.40
per day. In March 1935 he was off on the sick list. When he joined
the strike on June 10, 1935, he was still on the sick list. He was on
the picket line throughout the strike. About the last of August or
the first of September he applied to Bateman for reinstatement. He
was told by Bateman that there was nothing for.him or any of his
"kind" because they "took too an important part in the strike."
On the basis of all the evidence we find that the respondent denied
reinstatement to A. P. Windsor because he struck and engaged in con-
certed activities in behalf of the Union.
At the time of the hearing A. P. Windsor was employed by the
Shattuck Denn Mining Company. He operated a slusher but was
classified as a miner earning $5.48 per day. He has held that job
since November 23, 1936. Other employment which he has held
since the strike includes a month of relief work and 9 months of work
for a road contractor. When the latter job was completed he was
laid off. His pay on the road job varied from $4 to $6 per day. At
the hearing, A. P. Windsor expressed a desire to return to the employ
of tha respondent at his old wage in preference to his present job with
Shattuck Denn.
For the same reasons we have given in the case of Hargus, we find
A. P. Windsor has not secured regular and substantially equivalent
employment.
Emery Adelbert Curtis started to work for the Calumet & Arizona
Mining Company in 1925. He worked for that concern until it
merged with the respondent in 1931. Thereafter he continued to
work for the respondent until the strike occurred. At the time of the
strike he was working as a powderman, earning the same pay as a
miner. He served on the picket line until almost the middle of Au-
gust 1935. He did not apply for work with the respondent after
the strike ceased because other strikers who tried told him of their
failure.
Upon the basis of all the evidence we find that the respondent
denied reinstatement to E. A. Curtis because he struck and engaged
in concerted activities in behalf of the Union.
With the exception of a month's work for the Phoenix-Tempe
Stone Company in the fall of 1935 and a week's work in 1937, E. A.
Curtis has been occupied only by relief work. He did not apply for
-PHELPS - DODGE - CORPORATION 577
work other than relief work because he felt he was a little old. He
would like to return to his old job with the respondent.
We find that E. A. Curtis has not obtained regular and substan-
tially equivalent employment.31
Tom Abedin, a union member, spent 91/2 years in the employ of the
Calumet & Arizona Mining Company prior to its merger with the
respondent in 1931. Thereafter he worked with the respondent as a
miner until March 8, 1932, when he was laid off because of a reduction
in force. On February 13, 1934, he was reemployed as a -miner and
worked until June 10, 1935, when he joined the strike. On the latter
date he was earning $5 per day. He served on the picket line every
day throughout the duration of the strike. The first time he spoke
to Bateman concerning a job was in January 1936 when he encoun-
tered him on the street in Lowell. He was told by Bateman that
there was "No showing for us guys no more." He did not apply for
a job sooner because several of his friends who had tried to secure
employment had told him that it was useless for him to try. He has
not applied for a job with the respondent at any time since that
occasion.
On the basis of all the evidence we find that the respondent denied
reinstatement to Abedin because he struck and engaged in concerted
activities in behalf of the Union.
At the time of the hearing Abedin was employed as a miner at the
Boras mine at the rate of $5.50 per day. He obtained this job in
November 1937. The work, however, was irregular. The only other
employment, other than relief work, which Abedin had between the
strike's cessation and the date of the hearing was a 2-month job as a
miner for a lessor. He was laid off this job with several other em-
ployees. In October 1936 the Shattuck Denn Mining Company re-
jected Abedin's application for a job because of kidney trouble.
The respondent claims that Abedin had obtained regular and sub-
stantially equivalent employment. For the same reasons we have set
forth in the case of Hargus, we find that Abedin has not secured
regular and substantially equivalent employment.
Joe Henry Dunkerson, a member of the Union, worked for the
Calumet & Arizona Mining Company for 81/2 years prior to its merger
with the respondent. Since the merger, in. 1931, he has worked for
the respondent as a tool nipper until the event of the strike. He was
classified on his employment card as a mucker. At the time he went
on strike he was earning $4.40 per day. He served on the picket line
until 2 or 3 days before the discontinuance of the strikes Dunkerson
In its brief the respondent does not contend that E. A. Curtis has obtained substan-
-Bally equivalent employment.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applied for reinstatement with the respondent several days after the
strike ceased. His request was refused by Bateman who, told him.
that he had no chance for a job and that they had not done anything
about the strikers yet. He has not applied for a job with the respond-
ent since that occasion.
. On the basis of all the evidence, we find that the respondent denied
reinstatement to Dunkerson because he struck and engaged in con-
certed activities in behalf of the Union.
On June 13, 1936, Dunkerson entered the employ of the Sunshine
Mining Company at Kellogg, Idaho, where he worked for a period
,of 2 months. In spite of the fact that he received wages in excess of
$5.25 per day, he quit that job because he was not assured that it would
be permanent. The only other work which Dunkerson had between
the cessation of the strike and the date of the hearing, in addition to
relief work, has been a short period of employment with the Banner
Mine. His job with the Banner Mine terminated when he was
taken ill..
The respondent claims that Dunkerson has secured regular and
substantially equivalent employment. For the same reasons set forth
in our discussion of Hargus• and Key, we find that Dunkerson has not
obtained regular and substantially equivalent employment.
Grover D. .-Windsor, a member of the Union, started in the employ
of the respondent on June 8, 1934, as a mucker. On June 10, 1935,
when- he went on strike, he was running a muck machine at $5.24 per
.day. He served on the picket line every day until June 26. On or
about November 1, 1935, he applied for a job with the respondent
and his request was refused by Bateman, who said : "A hundred years
after the next War I'll give you a job." He has not since applied
.for a job.
On the basis of all the evidence, we find that the respondent denied
.reinstatement to Grover D. Windsor because he struck and engaged
in concerted activities in behalf of the Union.
Since November 1936 Grover D. Windsor has been employed by the
Shattuck Denn Mining Company as a mucker, running a muck ma-
chine. He has not earned less than $5.76 per day while on •.that job.
..Prior to obtaining that job he.was occupied for awhile with relief
work and a construction job.
The respondent claims that Grover D. Windsor has obtained regu-
lar and substantially equivalent employment. For the same reasons
set forth in our discussion of Hargus, we find that Grover D. Windsor
has not obtained regular and substantially equivalent employment.
Martin Vaclav, a member of the Union, first started to work for
the Calumet & Arizona Mining Company approximately 4 years
prior to the merger in 1931. At the time of the merger he was trans-
PHELPS DODGE CORPORATION 579
ferred to the pay roll of the respondent as a miner and worked con-
tinuously until he went on strike on June 10, 1935. He was earning
$5 per day just prior to the strike. He appeared on the picket line
until the latter part of July. Within a week or so after the strike
ceased, he solicited a job from Bateman and was informed that he
could not be given a job because he had gone out on strike. That
was the last time he applied fora job with the respondent.
On the basis of all the evidence, we find that the respondent denied
reinstatement to Vaclav because he struck and engaged in concerted
activities in behalf of the Union.
. In January 1937 Vaclav entered the employ of the Shattuck Denn
Mining Company as a mucker at the rate of $4.84 per day. He re-
mained there until May 1937 when he left their employ. He reentered
the employ of the Shattuck Denn Mining Company in' October 1937
as a miner at a rate which was never less than $5.48 per day, and was
so occupied at the time of the hearing. The only other employment
which Vaclav had since the termination of the strike consisted of odd
jobs of short duration. He expressed a preference for his old job with
the respondent.
The respondent claims that Vaclav has obtained regular and sub-
stantially equivalent employment. For the same reasons set forth in
our discussion of Hargus, we find that Vaclav has not obtained regular
and substantially equivalent employment.
Montague Reed has been intermittently employed by the respond-
ent since 1924. On these previous occasions he was laid off because of
reductions in force. In September 1933 he was reemployed by the re-
spondent. At the time'of the strike he was working as a miner, earn-
ing $5 per day. Although he was not a member of the Union, he went
on strike on June 11, 1935. He served on the picket line frequently
until June 26, 1935. When he called for his pay check on June 21,
during the course of the strike, Bateman instructed him to clean out
his locker, saying that "as far as you fellows are concerned, the strike
is never going to be ended for you." In June 1936 Reed encountered
IKeith Davey, who was temporarily acting as the respondent's employ-
ment agent, in a bar in Brewery Gulch. On this occasion Davey in-
formed him that there was no chance for any of the strikers to return
to the employ of the respondent. Reed has not applied for a job with
the respondent since that occasion.
On the basis of all the evidence, we find that the respondent denied
reinstatement to Reed because he struck and engaged in concerted
activities in behalf of the Union.
. Since August 14, 1936, Reed has been employed as a miner by the
Shattuck Denn Mining Company, earning $5.48 per day. The only
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other work which Reed had since the strike ceased was relief work.
He expressed a preference to-return to the employ of the respondent.
The respondent claims that Reed has secured regular and substan-
tially equivalent employment . For the same reasons set forth in our
discussion of Hargus , we find that Reed has not obtained regular and
substantially equivalent employment.
Milton Wynn commenced his employment with the respondent in
1934 when he worked there for about 3 months . He was reemployed
in June 1934 as a mucker . He worked continuously until he went out
on strike on June 10, 193.5. Just prior to the strike Wynn was operat-
ing a gunite machine, earning $5.23 per day . Although he was form-
erly a member of the Union he ceased being a member prior to June
1935. He appeared on the picket line only once or twice . A week or
two after the strike ,. Wynn encountered Bateman outside of office
hours. Bateman told him that there was no chance of going to work
and refused to give him a service recommendation letter to aid him in
Obtaining another job in Idaho. Wynn has not applied for a job with
the respondent at any time since then.
The respondent moved to dismiss the complaint as to Wynn on the
ground that he was not a member of the Union. It is immaterial that
Wynn was not a member of the Union . He, in fact , was discriminated
against because he engaged in concerted activity with other employees
for mutual aid and protection under the direction of the Union-. Such
discrimination is intended to and has the necessary effect of discourag-
ing membership in a labor organization and falls within the prohibi-
tion of Section 8 (3) of the Act.
Upon the basis of all the evidence , we find that the respondent
denied reinstatement to Wynn because he struck and engaged in
concerted activities in behalf of the Union.
In November 1935 Wynn obtained- employment with the Inspiration
Copper Company at Miami, Arizona , but quit that job after approxi-
mately a month because of a dispute over his wage rate. Other em-
ployment which Wynn has had since the strike ceased includes assist-
ing at tending a bar, and working at Parker Dam. At the time of
the hearing he was still employed at bartending but was working only
a. few days a week.
The respondent claims that Wynn has secured regular and substan-
tially equivalent employment . For the same reasons'set forth in our
discussion of Hargus , we find that Wynn has not obtained regular
and substantially equivalent employment.
Alexander Kalaetro, a member of the Union, was first employed by
the respondent in August 1934. He worked continuously until Juno
12, 1935, when he went out on strike . At that time he was working as
a swamper on a motor , earning $5 per day. He served on the picket
PHELPS DODGE CORPORATION 581
line for only 1 day. After the termination of the strike in the latter
part of August 1935 he applied to Bateman for a job and was told
"Nothing doing." He has not applied for a job with the respondent
since that time.
On the basis of all the evidence, we find that the respondent denied
reinstatement to Kalastro because he struck and engaged in concerted
activities in behalf of the Union.
Since February 1937 he has been continuously employed by the
Shattuck Denn Mining Company as a miner, earning $5.48 per day.
At the time of the hearing the Shattuck Denn Company was working
lay-offs on a turn-about system and there had been an interruption
in the continuity of his employment. Prior to his employment with
the Shattuck Derin Mining Company the only other jobs he had were
relief work and odd jobs. He desires to return to his old job with)
the respondent even if it involves a reduction in pay.
The respondent claims that Kalastro has secured regular and sub-
stantially equivalent employment. For the same reasons set forth in
our discussion of Hargus, we find that Kalastro has not obtained
regular and substantially equivalent employment.
William Henry. Bigelow, a member of the Union, was first employed
by the respondent in 1908 and worked intermittently thereafter. The
last time he was laid off was in 1930 or 1931. He was reemployed in
May 1934 as a miner, earning $5 per day. He worked at this until
he went out on strike on June 10, 1935. He served on the picket line
off and on until August 21, 1935. He has never applied to the respond-
ent for reinstatement because his brother, Clyde Bigelow, had applied
and told him that there was no use applying.
On the basis of all the evidence, we find the respondent denied
reinstatement to William Henry Bigelow because he struck and
engaged in concerted activities in behalf of the Union.
In December 1936 he was hired by the Shattuck Denn Mining Com-
pany and has worked there continuously since. At the date of the,
hearing he was earning in excess of $5 per day as a miner. Prior to
the job with the Shattuck Denn Mining Company he had been occu-
pied only by relief work and work on his own ranch.
The respondent claims that W. H. Bigelow has secured regular and
substantially equivalent employment. For the same reasons set forth
in our discussion of Hargus, we find that William Henry Bigelow
has not obtained regular and substantially equivalent employment.
William Windsar, a member of the Union, was first employed by
the Calumet & Arizona Mining Company in 1925. He worked there
irregularly until the merger, when there was a general lay-off. He
was reemployed by the respondent in September 1933 as a miner.
Within a week, however, he was put on as a helper on a, motor, though
283030-41-vol. 13--38
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
•when..he. went. out on strike, on June 10; 1935-he was working as- a
miner , earning $5 per day.
He was on the picket line during the strike until about the middle
of July. About the middle of September 1935 he solicited a job from
Bateman and was told, "I have taken up a few cases like yours, but
they don't know what they want to do about it." About 2 weeks later,
Windsor's effort to get a job with the respondent met with a similar
response . Since that date he has not applied for employment with the
respondent.
On the basis of all the evidence, we find that the respondent denied
reinstatement to Windsor because he struck, and engaged. in concerted
activities in behalf of the Union.
Since December 2, 1936, Windsor has been continuously employed
by the Shattuck Denn Mining Company. At the time of the hearing
he was working as a flusherman at $5.48 per day. Prior to this job
his employment included relief work and work as a common laborer
for a road-construction company. Windsor considers a job with the
respondent preferable to the one that he presently has, because he
believes that his return to the employ of the respondent would indicate
that the blackball against him was lifted. This is of concern to • him,
since he stated that "if I got froze out at the Denn I would be through
in this district as far as mining employment is concerned."
The respondent claims that Windsor has secured regular and sub-
stantially equivalent employment . For the same reasons set forth
in our discussion of Hargus , we find that Windsor has not obtained
regular and substantially equivalent employment.
Ellis Merarn Scales, a member of the Union, commenced to work for
the respondent in February 1926. He worked continuously until he
went out on strike in June 1935. At the time of the strike he was work-
ing as a motorman , earning $5.24 per day. He served on the picket
line until the, last day of the strike. After the strike terminated, Scales
applied for work some time between August 24 and August 28, 1935, on
which occasion Bateman informed him that "he' had other boys. in a
similar position and that lie could not do anything for them." That
was the last time Scales applied for work with respondent.
On the basis of all the evidence , we find that the respondent denied
reinstatement to Scales because he struck and engaged in concerted
activities in behalf of the Union. .
Since October 28 , 1936 , he has been working steadily for the Shattuck
Denn Mining Company. He was first employed there as a mucker but
at the time of the hearing he was working as a finley operator at $5.76
per day. . Prior to obtaining the job with the Shattuck Denn Mining
Company he had been occupied, only by, relief work and other, casual
employment . He worked in a mine for a, lessor for-about 3 months
and was employed by a construction contractor for about 4 months.
PHELPS DODGE CORPORATION 583
The respondent claims that Scales has secured regular and substan-
tially equivalent employment. For the reasons set forth in our discus-
sion of Hargus, we find that Scales has not secured regular and
substantially equivalent employment.
Frank Erkkila, a member of the Union, commenced to work for
the respondent about June 1, 1934. He started as a mucker but when
he went on strike on June 10, 1935, he was working as a miner, earn-
ing $5 per day. H. appeared on the picket line until the last week
of the strike. On or about November 1, 1935, Erkkila sought em-
ployment from Bateman and was met with the response, "Well, you
were, on the picket line, : weren't you?" Erkkila then related his
straitened circumstances and requested information as to where he
might find a job. Bateman mentioned the possibility of a job with
the Miami Copper Company. That was the last time Erkkila sought
employment with respondent.
On the basis of all the evidence, we find that the respondent has
denied reinstatement to Erkkila because he struck and engaged in
concerted activities in behalf of the Union.
In the last part of January or February 1936 Erkkila entered the
employ of the Shattuck Denn Mining Company. He started to work
there as a mucker but at the time of the hearing he was working as a
miner, earning $5.48 per day. Prior to obtaining the job with the
Shattuck Denn Mining Company, he was occupied only by some
farming on his parents' ranch. Erkkila expressed a desire to return
to the employ of respondent even if it involved a reduction in the pay
he was currently earning.
The respondent claims that Erkkila has obtained regular and sub-
stantially equivalent employment. For the reasons set forth in our
discussion of Hargus, we find that Erkkila has not secured regular
and substantially equivalent employment.
Luke Sertieli, a member of the Union, entered the employ of the
respondent in 1924 and worked until a general lay-off in August 1930.
He was reemployed by the respondent in September 1933 and worked
for the respondent until he went on strike on June 10, 1935. At the
time of the strike he was, a trackman, earning $5.24 per day. He
served on the picket line until about a week before the termination of
the strike. About the first part of July 1936 he applied for a job
with the respondent. On that occasion Bateman told him he had no
chance for a job. He has never tried to obtain employment with the
respondent since that date.
On the basis of all the evidence we find that the respondent denied
reinstatement to Sertich because he struck and engaged in concerted
activities in behalf of the Union.
Since: September 5, 1936, Sertich has : been in the - employ of - the
Shattuck Denn Mining Company. He started there as a miner but
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the date of the hearing he was working as a timberman, earning
$5.76 per day. For almost a year succeeding the cessation of the
strike, Sertich was enrolled in a C. C. C. camp. At the hearing Ser-
tich expressed a preference for his old job with the respondent over
his present employment with the Shattuck Denn Mining Company.
The respondent claims that Sertich has obtained regular and sub-
stantially equivalent employment. For the reasons set forth in our
discussion of Hargus, we find that Sertich has not secured regular
and substantially equivalent employment.
Merrell Ernest Johnson entered the employ of the Calumet & Ari-
zona Mining Company in 1928 and worked for that concern until he
was laid off at the time of the merger in 1931. He was reemployed
by the respondent in 1934 as a tool nipper. He worked steadily for
the respondent until he went out on strike on June 10, 1935. At the
time of the strike he was working as a toplander's helper,_earning
$4.40 per day. Although he was not a member of the Union at the
time of the strike, he appeared on the picket line three or four times.
About a week after the strike ceased he sought employment from
Bateman. Bateman advised him that ". . . there is not even
any use of your looking for a job". and added, "You know the reason
why." That was the last time he sought employment from the
respondent.
On the basis of all the evidence we find that the respondent denied
reinstatement to M. E. Johnson because he struck and engaged in
concerted activities in behalf of the Union.
In February or March 1936 Johnson was employed by the Shattuck
Denn Mining Company. He started out as a trammer, earning $4.40
per day, but at the time of the hearing he was working as a sharp-
ener's helper at $5.76 per day. Until Johnson was employed by the
Shattuck Denn Mining Company he had been unable to find any work
other than relief work in the period succeeding the strike.
The respondent claims that M. E. Johnson had obtained regular
and substantially equivalent employment. For the reasons set forth
in our discussion of Hargus, we find that Johnson has not secured
regular and substantially equivalent employment.
George Gerhardt was first employed by the respondent in 1912 for
about a year. He was reemployed by the respondent in 1915 and,
with the exception of a brief lay-off in 1922, he worked until June
10, 1935, when he went out on strike. At the time of the strike he was
working as a steel-sharpener, earning $5.24 per day. He served on the
picket line until July 3, 1935. About the middle of September he
applied for work with the respondent. He was one of a group of ap-
plicants who were standing outside the respondent's employment' office.
This. group, with the,exception of Gerhardt, was .composed of persons
PHELPS DODGE CORPORATION 585
who had not participated in the strike. On this occasion Bateman
advised the group that there were no jobs available. Gerhardt never
applied for work from the respondent thereafter.
On the basis of all the evidence, we find that the respondent denied
reinstatement to Gerhardt because he struck and engaged in concerted
activities in behalf of the Union.
Gerhardt was 62 years old at the time of the hearing and has ob-
tained po employment since he went out on strike. After the termina-
tion of the strike Gerhardt was occupied only with relief work until
the beginning of 1937. For a year prior to the hearing he was on
direct relief because of a defective knee which bothered him when he
did certain kinds of work. He has been afflicted with his knee trouble
since 1913. It did not hinder the type of work he was engaged in
while in the employ of the respondent.
We find that Gerhardt has not secured regular and substantially
equivalent employment.32
William Graham,, a member of the Union, entered the employ of
the respondent in 1928 and left it after about a year and one-half. He
was reemployed in June 1934 and worked until he went out on strike
on June 10, 1935. Although he is classified on his employment record
as is mucker, at the time of the strike he was working as a pocket
man, earning $4.40 per day. He served on the picket line throughout
the duration of the strike. After the strike ceased he applied for a
job from Bateman some time during the first week of September 1935.
Bateman informed him that "the committee had to pass on all of the
men that were hired" and that "the committee would not pass on any
man that' came out on' strike." Bateman did not explain what com-
mittee he referred to. He did not apply for a job with the respondent
thereafter.
On the basis of all the evidence, we find that the respondent denied
reinstatement to Graham because he struck and engaged in concerted
activities in behalf of the Union.
On or about November 23, 1936, Graham, was employed by the
Shattuck Denn Mining Company. He has been in its employ con-
tinuously since that date. At the time of the hearing he was work-
ing as a raise man for $5.48 per day. Before Graham entered the
employ of the Shattuck Denn Mining Company he had been employed
for about 8 or 9 months with the Boriano Mining Company in King-
man, Arizona. He also worked for the Sunshine Mining Company in
Kellogg, Idaho, for several months. He left that job voluntarily
because his boy was sick and he had to return home to Bisbee. For
a short period immediately succeeding the termination of the strike,
sa In its brief , the respondent stated that it did not contend that Gerhardt has secured
substantially equivalent employment.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Graham worked on relief. Graham prefers his old job with the
respondent to either his employment with the Sunshine Mining Com-
pany or his present job with the Shattuck Denn Mining. Company.
The respondent claims Graham has obtained regular and substan-
tially equivalent employment. For the reasons. set forth. in our.
discussion of Hargus, we find that Graham has not secured regular
and substantially equivalent employment.
William Edward Sharp was first employed by the respondent in
July 1929 and laid off because of a reduction in force in January
1930. He was reemployed by the respondent on June 7, 1935. Two
days later he took his physical examination and he worked on June
10, 1935. The next day he went out on strike. He was employed as
a blacksmith's helper but since he never went back to get his pay for
the 1 day which he worked the record does not disclose his rate of pay.
He was on the picket line until about August 1, 1935. About October
15, 1935, Sharp asked Bateman for a job. Bateman told him that he
had no chance to get a job because of the trouble he was involved
in during the strike. On another occasion in Morenci, Arizona, in
September 1937, Sharp encountered Bateman and asked him concern-
ing his chances for a job with the respondent's mine located in
Morenci. Bateman informed him that it would do no good for him
to rustle there because of the trouble in which he was involved in
Bisbee. That was the last time he applied for work with the
respondent.
On the basis of all the evidence, we find that the respondent denied
reinstatement to Sharp because he struck and engaged in concerted
activities in behalf of the Union.
About October 18, 1937, Sharp entered the employ of the Alpine
Mining Company near El Freida, Arizona. At the time of the hear-
ing he was disabled and receiving compensation . There is no evi-
dence that his injury was such as to cause more than a temporary
disability. His regular work at that time, however, was as a miner
at the rate of $5 per day. Starting in December 1936 he worked for
a period of about 8 months as a miner with the Bonnie Mining Com-
pany at Lordsburg, New Mexico. He was paid at the rate of $5 per
day, working 7 days a week. In August 1937, because his father
became ill, he was summoned home. When he returned to Lordsburg
he was unable to obtain reinstatement to that job. For a period of
3 or 4 months prior to entering the employ of the Bonnie Mining
Company, Sharp had a job as a hod-pan operator. Between Novem-
ber 1935 and August 1936 he worked as a common laborer for a
construction company.
The respondent claims that Sharp has obtained regular and sub-
stantially equivalent employment. For the reasons 'set forth in our,
PHELPS DODGE - CORPORATION 587
discussion of Hargus , we find that Sharp has not secured regular and
substantially equivalent employment.
Lester F. Bethel, a member of the Union, entered the employ of
the Calumet & Arizona:Miiting'Company in 1925. After the merger
he was employed by the respondent and worked continuously until
June 10, 1935. At the time he went on strike he was working as a
motorman at $5.24 per day.' He served on the picket line until about
August 20, 1935. About August 29, 1935, he requested a job from
Bateman and was informed by him that ". . . the company had
never expressed themselves as to what they were going to do with the
striking men." He advised Bethel to return at a later date. In De-
cember 1935 Bethel again inquired of Bateman concerning the pros-
pects of a job. Bateman informed him as follows: "You have an
outstanding record signed by Harry Lavender, but I cannot make no
exceptions in your case." In May 1936 Bethel met Bateman in a bus
station and in response to his query was informed that union men were
not yet being hired.
On the basis of all the evidence, we find that the respondent denied
reinstatement to Bethel because he struck and engaged in concerted
activities in behalf of the Union.
On December 5, 1936, Bethel was employed by a Southern Pacific
Railroad contractor. He has worked continuously at that job until
the time of the hearing. He commenced to work at a salary of $65
per month but in May 1937 was raised to $130 per month. Before
he obtained this job, besides relief work, he was employed for about
6 weeks for the Tungsten Production Company as a miner. After he
was laid off by that company he worked for about a week for a con-
struction company. The job with the Southern Pacific Railroad con-
tractor was to terminate on February 13, 1938.
The respondent claims that L. F. Bethel has obtained regular and
substantially equivalent employment. For the reasons set forth in
our discussion of Hargus, we find that Bethel has not secured regular
and substantially equivalent employment.
Michael Mihelich, a member of the Union, worked for 151/2 years
with the Calumet & Arizona Mining Company prior to the merger in
1931. At that time he was transferred to the respondent's pay roll
and worked continuously until 'he went out on strike on June 10, 1935.
At the time of the strike he was employed as a timberman, earning
$5.24 per day. He served on the picket line. A few days after the
discontinuance of the strike he asked Bateman concerning a job and
was told "No job for you.". On another occasion in September 1935
his request for a job met with a similar response. He has not applied
for a job since that occasion.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of all the evidence, we find that the respondent denied
reinstatement to Mihelich because he struck and engaged in concerted
activities in behalf of the Union.
At the time of the hearing, Mihelich was not employed. After the
termination of the strike he worked in a mine for a lessor for about a
year. His pay on this job was in excess of $5.50 per day. He was
laid off on November 18, 1937, because the mine was shut down. Since
that date he has not been occupied on any job at all.
The respondent claims that Mihelich has secured regular and sub-
stantially equivalent employment. For the reasons set forth in our
discussion of Hargus, we find that Mihelich has not secured regular
and substantially equivalent employment.
Pete D. Caretto, a member of the Union, completed 10 years of
service with the Calumet & Arizona Mining Company prior to its
merger with the respondent in 1931. At that time he was laid off
until the spring of 1932 when he was reemployed by the respond-
ent. He worked continuously until he went out on strike on June
10, 1935. At the time of the strike he was working as a topman,
earning $5 per day. Before he worked as a topman he also had worked
as a miner and a eager. He served on the picket line during the
course of the strike.
After the strike was over he did not apply for reinstatement be-
cause he felt it was useless to seek a job with respondent. He based this
conclusion upon Bateman's statement of August 21, 1935, when Bate-
man informed him and the other strikers that the strikers would never
work for the respondent again.
On the basis of all the evidence, we find 'that the respondent denied
reinstatement to Caretto because he struck and engaged in concerted
activities in behalf of the Union.
At the time of the hearing he was working on relief work. In Decem-
ber 1936 he obtained a job as a miner for a lessor. He worked at this
job for about 31/2 months at the rate of $5 per day. He left that em-
ployment because he did not like his employer. In January 1937 he
entered the employ of another lessor and worked for him for about
21/2 months. Here he received a mucker's pay which was $4.40 per
day. He left this job because the ground was too bad and he did not
like the work there. He has been doing relief work since December 27,
1937. Shortly after the strike terminated he was employed by a dairy,
working nights. He remained there only a short time because he did
not care for the hours.
The respondent claims that Caretto has secured regular and sub-
stantially equivalent employment. For the reasons set forth in our
discussion of Hargus, we find that Caretto has not secured regular and
substantially equivalent employment.
PHELPS DODGE CORPORATION 589
P. C. Lytle, a member of the Union, entered the employ of the
Calumet & Arizona Mining Company 4 years prior to its merger with
the respondent. Thereafter he was transferred to the pay roll of the
respondent and ,worked until he went, out on strike. At the time of -the
strike Lytle was a repairman, earning $5.24 per day. During the
first part of the strike he was in ill health and was being treated
through the respondent's medical facilities. On Saturday, June 15,
1935, Lytle visited the respondent's doctor to learn the results of a
"picture" which had been taken earlier in the week. He was informed
by respondent's doctor at that time that the office had given orders
to cease furnishing him medical attention. Lytle did not appear on
the picket line at any time. After the termination of the strike, some-
time in September or October 1935, Lytle spoke to H. C. Henrie con-
cerning a job. Henrie advised him to return the following evening for
an answer. The next evening Henrie told him that nothing could be
done for him. He has never applied for a job with respondent since
that date.
On the basis of all the evidence, we find that the respondent denied
.reinstatement to Lytle because he struck and engaged in concerted
activities in behalf of the Union.
In January 1936 Lytle commenced to work for the Hillside Mining
Company . at Hillside, Arizona, working as a miner at the rate of $4
per day, seven days a week. At the end of 51/2 months he was rated as
a repairman and earned $4.50 per day, seven days a week. After
working as a repairman for 31/2 months he voluntarily quit the em-
ploy of the Hillside Mining Company. On February 15, 1937, he was
hired as a miner by a lessor and wall paid $5.48 per day. Shortly
thereafter his rating and pay were increased. On June 19, 1937, how-
ever, he was laid off because of a reduction in force. About September
1, 1937, Lytle was employed as a mining timberman by the Sullivan,
Mining Company at the Star Mine in Idaho. He was paid at the rate
of $6.25 per day. At the end of six weeks he was injured and for a
2-week period thereafter was paid compensation. He did not apply
for reinstatement with the Star Mine because he understood that his
job would not be available if he wanted to go back to it. The doctor
also advised him to get away from it. At the time of the hearing Lytle
was occupied only by relief work in Bisbee. In addition to the work
enumerated he has, since the termination of the strike, been employed
at various times at other temporary jobs.
The respondent claims that Lytle has secured regular and substan-
tially equivalent employment. For the reasons set forth in our dis-
cussion of Hargus, we find that Lytle has not secured regular and
substantially equivalent employment.
590 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
Jesse Edge, a member of the Union, was employed by the Calumet &
Arizona Mining Company for 21/2 years prior to the merger. There-
after he was transferred to the pay roll of. the respondent and worked
continuously until he went out on strike -on June 10, 1935. At the
time. of -the. strike he was working,4as, a; motorman, earning.$5.24: per
day. He served on the picket line until about August 15, 1935. Dur-
ing the course of the strike, about June 22, he spoke to Bateman when
he went in after his pay slip. On that occasion Bateman told him
that if he did not return to work that he would never work for the
company again. Because of that statement Edge has never applied
for a job with the respondent since that occasion. - ' '
On the basis of all the evidence, we find that the respondent denied
reinstatement to Edge because he struck and engaged in concerted
activities in behalf of the Union.
Since July 23, 1937, Edge has been in the employ of the Shattuck
Denn Mining Company: He is working there as a miner earning
$5.48 per day. Prior to his employment with the Shattuck Denn Min-
ing Company.he=was occupied;only: byyeJ&ef-woxkand;other. temporary
employment.
The respondent claims that Edge has secured regular and substan-
tially equivalent employment. For the reasons set forth in our dis-
cussion of Hargus, we find that Edge has not secured regular and
substantially equivalent employment.
Frank Peterson, a member of the Union, was employed by the Calu-
met & Arizona Mining Company from February 1929 to February
1930. He was reemployed by the respondent as a mucker in Janu-
ary. 1933,. and worked continuously until- he went out 'on :strike on
June 10, 1935. Shortly before the occurrence of the strike he was
working as a miner, earning $5 per day. He served on the picket line.
About a week after the discontinuance of the strike Peterson applied
for reinstatement. Bateman informed him, however, that the respond-
ent had not yet decided how it was going to dispose of the strikers.
Ten days or two weeks after this occurrence, Peterson again sought
employment from Bateman and again, was refused.
On' the basis of all the evidence, we find that the respondent denied
reinstatement to Peterson because he struck and engaged in concerted
activities in behalf of the Union. '
At the time of the hearing Peterson was employed as a laborer,
earning $4 per day. He has held ,that. j ob . since December 20, 1937.
The work, however, is not steady work and he averages only about
4, days per week of work. For the most part since the-termination of
the strike, Peterson has held only relief jobs or temporary jobs as a
common laborer.
PHELPS DODGE CORPORATION 591
.
.We find that Peterson has not secured regular and substantially
equivalent employment.33
. Ben H. Stringer, a member of the Union, was in the employ of the
Calumet & Arizona Mining Company for 4 years prior to the merger
with the, respondent. He,was •.reemployed by the -respondent as a
milcker in June 1934, and worked continuously until he went out on
strike on June 10, 1935. At the time of the strike he was still working
as a mucker but was receiving a miner's pay. He served on the picket
line. A few days after the termination of the strike, Stringer asked
Bateman for a job but was turned down. He again attempted to get
a job with the respondent in December 1937, but was informed that the
respondent was laying off men during that period.
On the basis of all the evidence, we find that the respondent denied
reinstatement to Stringer because he struck and engaged in con-
certed activities in behalf of the Union.
Except for 18 days' work for the Shattuck Denn Mining Company
in the spring of 1936, Stringer has been on relief since the termina-
tion of the' strike.
The respondent claims that Stringer has secured regular and sub-
stantially equivalent employment. For the reasons set forth in our
discussion of Hargus, we find that Stringer has not secured regular
and substantially equivalent employment.
George C. Rohrer, a member of the Union was employed for 3 years
by the Calumet & Arizona Mining Company prior to the merger.
Thereafter he was transferred to the pay roll of the respondent as a
mucker and worked until June 10, 1935, when he went out on strike.
At the time of the strike he ,was.-working as a motorman, earning
$5.24 per day. He served on the picket line during the course of the
strike. About 2 weeks after, the. strike ceased he applied for a job
from Bateman who said: "No, I can't give you a job." He has not
applied for employment with respondent since that time.
On the basis of all the evidence, we find that the respondent denied
reinstatement to Rohrer because he struck and engaged in concerted
activities in behalf of the Union.
At the time of the hearing Rohrer was employed on relief work.
Except for an occasional day's work on a farm he has been continu-
ously occupied with relief work since the termination of the strike.
We find that Rohrer, has not secured regular and substantially
,equivalent employment.34
81In its brief the respondent states that it does not contend that Peterson has secured
substantially equivalent employment.
a+ In its brief the respondent states that it does not contend that Rohrer has secured
substantially equivalent employment.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clyde Bigelow first entered the employ of the respondent in 1920
and thereafter worked intermittently for the respondent until 1932.
In January 1934 he was reemployed by the respondent and worked
steadily thereafter-until he went out on strike on June 10, 1935. At
the time of the strike he was working as a miner, earning $5 per day.
Although he was not a member of the Union he went out on strike.
He did not appear on the picket line. After the strike was discon-
tinued he applied for work with the respondent in September 1935.
Bateman informed him that they had not yet reinstated any of the
striking miners. The next instance when he sought employment with
the respondent was in December 1936. In response to his query con-
cerning a job Bateman said "we ain't going to reinstate any of the
men," and informed him that there was no use of his rustling again.
Bigelow has not applied for a job with respondent since that date.
The respondent moved to dismiss the complaint as to Bigelow on
the ground that he was unemployable. The record nowhere discloses
that Bigelow's alleged disability was the reason for the respondent's
failure to reinstate him, or indeed, that the respondent was even
aware of this alleged disability prior to the hearing.
The respondent also moved to dismiss the complaint as to Bigelow
on the ground that he was not a member of the Union at the time he
joined the strikers. This contention is without merit for the reasons
heretofore stated in our consideration of the case of Wynn.
Upon the basis of all the evidence, we find that the respondent
denied reinstatement to Bigelow because he struck and engaged in
concerted activities in behalf of the Union.
A resume of the work on which Bigelow was employed since the
cessation ' of the strike follows : He worked on relief for several
months and also worked on several odd jobs. He obtained employ-
ment for about a month as a laborer on a construction gang. He
then got a job in a,gold mine in Califorina which he left at. the. end
of two months because of a disagreement over a contract with the
company. In February 1937 he returned to Bisbee and was employed
as a eager and shaftman in a lessor's mine. After about 4 months he
was laid off. At the time of the hearing Bigelow was employed at
a hardware store. In the 3 months prior to the hearing he did not
average over $20 per week in wages, although he earned a consider-
ably larger amount in the period before that.
About 7 or 8 months before the hearing Bigelow sought employ-
ment at the Shattuck Denn Mining Company. He was rejected,
however, on the ground that the medical examination disclosed that
he was afflicted with silicosis. About 5 months before the hearing
he was again examined with the same result on the medical examina-
tion. His application was again rejected by the Shattuck Denn
' PHELPS DODGE CORPORATION 593
Mining Company on the ground that he could not pass the medical
examination. Bigelow declared, however, that he would like to go
back to work under ground again.
The respondent claims that Bigelow has obtained regular and sub-
stantially equivalent employment. For the reasons set forth in our
discussion of Hargus, we find that Bigelow has not secured regular
and substantially equivalent employment.
J. M. Morris, a member of the Union, was employed 5 years by the
Calumet & Arizona Mining Company prior to the merger. After
the merger he was transferred to the pay roll of the respondent and
worked steadily until he went out on strike on June 10, 1935. At the
time of the strike he was working as a powderman, earning $5 per
day. He served on the picket line everyday for about 2 weeks after
the commencement of the strike. The only time that Morris applied
for work with the respondent after the cessation of the strike was
about October 1, 1935. Bateman questioned him as to when he had
previously worked for the Company and after obtaining the infor-
mation told him that there was "nothing doing."
The respondent moved„to dismiss the complaint as to Morris on
the ground that he was unemployable. The record nowhere discloses
that Morris' alleged disability was the reason for the respondent's
failure to reinstate him, or indeed, that the respondent was even
aware of this alleged disability prior to the hearing.
Upon the basis of all the evidence, we find that the respondent
denied reinstatement to Morris because he struck and engaged in
concerted activities in behalf of the Union.
Since the termination of the strike, other than relief work, Morris
has had only temporary jobs. A little more than a year prior to the
hearing be applied for a job with the Shattuck Denn Mining Com-
pany but his application was rejected on the ground that he did not
pass the medical examination. He feels, however, that his physical
condition is adequate for work under ground. Although he was de-
nied employment by the Shattuck°Denn Mining Company on the
ground that he could, not satisfactorily pass the medical examination
to which they subjected him, there is no evidence upon which we can
base a conclusion that Morris would have been unable satisfactorily
to meet the physical requirements laid down by the respondent.
We find that Morris has not secured regular and substantially
equivalent employment.35
H. D. Edge, a member of the Union was employed as a mucker by
the respondent in January 1924, and worked continuously until he
went out on strike on June 10, 1935. At the time of the strike he
In its brief the respondent states that it does not contend that Morris has obtained
substantially equivalent employment.
594 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
was working as a miner, earning $5 per day. He, served -on, ^ the
picket line. He did not apply for a job with the respondent until
October 1937 because he thought that it would be useless. Several of
the other persons out on strike had, to his knowledge, applied for
employment and they had been unsuccessful. On that occasion Ber-
lendis, the employment agent who replaced Bateman, informed him
that he was not employing anybody at that .time.
The respondent moved to dismiss the complaint as to Edge on
the ground that he was unemployable. The record nowhere dis-
closes that Edge's alleged disability was the reason for the respondent's
failure to reinstate him, or indeed, that the respondent was even
aware of this alleged disability prior to the hearing.
Upon the basis of all the evidence, we find that the respondent
denied reinstatement to H. D. Edge because he struck and engaged
in concerted activities in behalf of the Union.
At the time of the hearing Edge was employed on relief work.
Other employment which Edge had after the strike includes ap-
proximately 5 weeks' work for a stone company in April 1936. After
that he obtained a job as a miner with the Molybdenum Company in
Climax, Colorado. After he worked there 11 days he left that job
and went into Idaho. In July 1936 his application for a job with
the Sunshine Mining Company at Kellogg, Idaho, was rejected on
the ground that the doctor's examination revealed that he was af-
flicted with silicosis. In October 1936 he was employed as a miner
by a lessor in the Bisbee district. He worked continuously for the
lessor until April 1937 when he was injured. He returned to work
for the lessor for a few days and then was laid off. He is of the
opinion that he is physically able to do the work required of a miner.
The respondent claims that • H. D. Edge has secured regular and
substantially equivalent employment. For the reasons set forth in
our discussion of Hargus, we find that Edge has not secured regular
and substantially equivalent employment.
Henry Waters, a member of the Union, was first employed by the
respondent in 1927. He worked intermittently for the respondent
until he was laid off in 1931 because of a reduction in force. In
January 1934 he was reemployed by the respondent and worked
steadily until he went out on strike on June 10, 1935. At the time
of the strike he was employed as a miner earning $5 per day. He
served on the picket line. He did not apply for a job with the
respondent until December 1936 because he knew of other men in a
position similar to his whose applications had been rejected by the
respondent. In December 1936, however, he asked Bateman for a
job. Bateman replied that he could not do anything for him and
said; '"You just as well go to a union camp." . That was' the last time
. : .:that he applied for a job. with the respondent,,.
PHELPS DODGE 4CORPORATION 595
The respondent moved to dismiss the complaint as to Waters
on the ground that he was unemployable. The record nowhere dis-
closes that Waters' alleged disability was the reason for the respond-
ent's failure to reinstate him, or indeed, that the respondent was
even aware of this alleged disability prior to the hearing.
Upon the basis of all the evidence, we find that the respondent
denied reinstatement to Waters because he struck and engaged in
concerted activities in behalf of the Union.
Since he went out on strike on June 10, 1935, Waters has had no
employment other than relief work. He endeavored to get a job at
the Shattuck Denn Mining Company in 1937 but was rejected on the
ground that he was afflicted with silicosis. Waters is of the opinion
that his physical condition would not permit him to work at an inside
job at mining.
We find' that Waters has not secured regular and substantially
equivalent employment.
Grover Cornett, a member of the Union, was employed by the re-
spondent in 1929 and was laid off in 1930 when its force was reduced.
He was reemployed by the respondent on June 7, 1935, to commence
work on June 10, 1935. Instead of going to work on June 10, however,
he went out on strike. Since he had been hired to. commence work
on June 10, we find that he was an employee of the respondent on that
date. The fact that he joined in the strike instead of going to work
can have no effect on his status as an employee. His employment card
lists him as being hired to fill the job of a.mucker. He frequently
served on the picket line until about a week before the strike ceased.
About a week after the strike was over he asked Bateman for a job
and was told there was no chance at' all of his getting his job back.
Apparently that is the only occasion upon which he sought employ-
ment from the respondent.
. Upon the basis of all the evidence, we find that the respondent has
discriminated with respect to the hire of Cornett because he engaged
in concerted activities in behalf of the Union.
At the time of the hearing he was employeed as a tool nipper at
the Shattuck Denn Mining Company and was earning $5.48 per day.
He obtained that job in May 1936 and has worked there continuously
since that time. Priot,to obtaining'that job he had no employment
other than relief work since June 1935.
The respondent claims that Cornett has secured regular and sub-
stantially equivalent employment. For the reasons set forth in our
discussion of Hargus, we find that Cornett has not secured regular
and substantially equivalent employment.
Leonard Guess, a member of the Union, was employed by the Cal-
umet & Arizona Mining Company for 41/2 years prior to its merger
with the respondent. After the merger he was transferred to the pay
596 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
roll of the respondent and- continued to-work steadily thereafter until
January 14, 1935. At the time he ceased to be in the employ of the
respondent he was listed as a motorman on his employment record.
He left the employ of the respondent to go into the restaurant business
which, however, failed after about a month. He did not serve on the
picket line during the course of the strike. The first time that he
applied for a job with the respondent thereafter was about 2 weeks
after the strike ceased. He spoke to Bateman on this occasion and
Bateman told him that he would have to "look it up" and advised
Guess to return at a later date. Four days later he reappeared and
Bateman told him that he could do nothing for him because, in the
words of Guess, he did not "incorporate with the company" when he
had worked with them. Bateman did not enlarge upon the meaning of
this statement, but Guess stated that he had a good idea of what
Bateman was referring to.
In the absence of evidence that the respondent refused to hire Guess
because of his union affiliation, we find that the refusal was for other
reasons.
Vernon Dell Curtis, a member of the Union, was employed by the
Calumet & Arizona Mining Company for 4 years prior to the merger.
After the merger he was transferred to the pay roll of the respondent
and worked there continuously until June 15, 1934. At the time he
was discharged he was working as a motor swamper. There is a nota-
tion on his employment record that he is a good motor swamper and
mucker. About a month after he ceased to work for the respondent he
sought to be reemployed but was unsuccessful. He was on the picket
line all during the strike. In October or November 1935 he asked
Bateman for a job and was told "There's no chance of the likes of
you to get a foothold in this camp again." In the summer of 1936
he met Bateman in a public recreation parlor in Lowell and asked him
concerning a job. Bateman responded "In 300 years we will give you
fellows a job again."
Upon the basis of all the evidence we find that the respondent
has discriminated with respect to the hire of V. D. Curtis because
he engaged in concerted activities in behalf of the Union.
Other than relief work, Curtis had only temporary jobs until
he was employed by the Shattuck Denn Mining Company on January
13, 1937. At the time of the hearing he was still employed with
the Shattuck Denn Mining Company and was working as a powder-
man, earning $5.48 per day.
The respondent claims that Curtis has obtained regular and sub-
stantially equivalent employment. For the reasons set forth in our
discussion of Hargus, we find that V. D. Curtis has not secured
regular and substantially equivalent employment.
PHELPS DODGE CORPORATION 597
Richard Johnson has never been employed by the respondent. He
testified as follows :
Q. Have you ever applied for work at Phelps Dodge Cor-
poration?
A. Yes, sir.
Q. When?
A. In the months of January, February, and March. Just
after the strike.
Q. That would be 1936?
A. '36.
Q. Any members of your family formerly employed by the
Phelps Dodge Corporation?
A. Yes, father and brother.
Q. To whom did you apply for work?
A. Mr. Bateman.
Q. When was the first time you spoke to him?
A. In January.
Q. What did he say?
A. He said, Well , my father and brother weren 't in very good
standing with the company and that there wouldn't be no
chance.
Although Johnson persisted in his efforts to obtain a job with
the respondent he was not successful . The record fails to disclose
why Johnson 's father and brother were in the bad graces of the re-
spondent if in fact they were . Although there is a Merrell Johnson
who is a complainant in these proceedings there is no showing that
he is related to Richard Johnson.
Since there is no evidence that Richard Johnson was in fact denied
employment because of his union activities or because of the union
activities of his father and brother we find that Richard Johnson
was not discriminated against in regard to hire or tenure of em-
ployment within the meaning of the Act.
On the basis of all the evidence we find that by its refusal to rein-
state or reemploy Edgar Lewis Hargus , John Henry Key, George
Edward Frazee , Edward Bowden , Paul Amaro, Wilfred Davis Mor-
tenson , Anson Perry Windsor, Emery Adelbert Curtis, Tom Abedin,
Joe Henry Dunkerson , Grover D. Windsor, Martin Vaclav, Mon-
tague Reed , Milton Wynn , Alexander Kalastro , William Henry Bige-
low, William Windsor, Ellis Meran Scales, Frank Erkkila, Luke
Sertich, Merrell Ernest Johnson , George Gerhardt , William Graham,
William Edward Sharp, Lester F . Bethel, Michael Mihelich , Pete D.
283030-41-vol. 19-39
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Caretto, P. C. Lytle, Jesse Edge, Frank Peterson , Ben J . Stringer,
George C. Rohrer, Clyde Bigelow, J. M. Morris , H. D. Edge, Henry
Waters, Vernon Dell Curtis , Grover Cornett , Herschel J. Montgom-
ery, and William Daugherty , the respondent has discriminated with
respect to their hire and tenure of employment , thereby discouraging
membership in the Union and interfering with, restraining, and
coercing its employees in the exercise of their rights guaranteed in
Section 7 of the Act.
We find that the respondent has not discriminated against William
Day, Levi Crandall , Richard Johnson, John Patrick Foley, and
Leonard Guess in regard to hire and tenure of employment within
the meaning of Section 8 (3) of the Act, and the allegations in the
complaint with respect to them will , therefore , be dismissed..
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 inconnection . with the operations of the respond-
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.
THE REMEDY
. Having found that the respondent has engaged in unfair.labor
practices , we will order it to cease and desist therefrom 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 certain individuals named
above. In accordance with our usual practice we shall order the,
reinstatement or the reemployment of such individuals . The re-
spondent contends that the Board lacks power to order the reinstate-
ment of any striker who has obtained other regular and substantially
equivalent employment . We have found above that none of the
strikers discriminated against has obtained other regular and sub-
stantially equivalent employment within the meaning of the Act.
Nevertheless , even if any striker had obtained such employment we
would, for the reasons set forth in Matter of Eagle-Picker Mining
and Smelting Company, a corporation, and Eagle -Picher Lead Com-
pany, a corporation and International Union o l Mine, Mill and Smelter
Workers, Locals Nos. 15,17,107, 108, and 111, still order his reinstate-
ment by the respondent . 36 The respondent also contends that the
80 16 N . L. R. B. 727.
PHELPS DODGE ..CORPORATION 599
Board lacks power to reinstate or require the employment of indi-
viduals who were not employees within the meaning of the Act at
the time the discrimination against them occurred. We do. not agree
with this contention. For the reasons set forth in Matter of Waum=
bee Mills and United Textile Workers of America, we are of the
opinion that the Board is empowered under Section 10 (c) of the Act
to require the employment with back pay of individuals who were
not employees of the respondent but who were discriminatorily denied
employment contrary to Section 8 (3) of the Act.37
The respondent urges that the reinstatement of the above-mentioned
persons would lead to or tend to lead to a labor dispute. Five of the
respondent's employees testified to the effect that they would refuse
to work with any man who was on the picket line. At the hearing
counsel for the respondent and counsel for the Board entered into
the following oral stipulation :
... for the purpose of avoiding more or less repetition of testi-
mony, that we [respondent] would proceed, if necessary, to put
on testimony of some seven or eight hundred men now employed
by the Phelps Dodge Corporation substantially to the effect of
the testimony given by the witnesses called since the noon recess
[5 witnesses referred to above]. That would be to the general
effect that they do not want to work with these men who went out
on the strike in June 1935, or were on the picket line, because of
the abuse, threats, and general ill feeling that was engendered at
that time, and because they do not feel it either safe or desirable
to work with them in the occupations in which they were engaged.
In some cases for the further reason that they do not feel that
they would be able to cooperate with them on the job, obtain the
necessary cooperation which is required underground where men
are working together; and further, that that expresses the atti-
tude generally of the men in the employ of the Phelps Dodge
Corporation at the present time, that they have not requested the
management to reinstate any of these men or employ them, and
are not desirous that they do be employed.
We cannot but consider the difficulties of adjustment envisaged
in the foregoing testimony as conjectural and insubstantial, especially
in view of the lapse of time since the strike. However, even assuming
0'. S&6
Matter of Waumbee Mills; Inc. and United Tex=tile Workers of America , 15 N. L.
R. -B. 87 , where we held an order, requiring the employment with back pay of persons
who were not employees of the, respondent but who were discriminatorily denied employ-
ment by the respondent within the meaning of Section 8 ( 3) of the Act , to be within the
authority granted to the Board by Section 10 (c) of the Act which expressly permits the
Board to require upon a finding of unfair labor practices " such affirmative action
. as will effectuate the policies of the Act."
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the asserted resentment of non-strikers towards strikers and
picketers persists, the effectuation of the policies of the Act patently
required the restoration of the strikers and picketers to their status quo
before the discrimination against them.
The respondent contends that Clyde Bigelow, H. D. Edge, and J. M.
Morris should not be reinstated, because. they are unemployable. This
position is predicated upon evidence adduced at the hearing that they,
were rejected for jobs at other mining companies on the ground that
they could not pass the physical examination. Their failure to pass.
physical examinations to which they were subjected by other mining
companies obviously does not establish that they could not satisfac-
torily meet the respondent's physical requirements. Accordingly, we
see no valid reason for refusing, in the exercise of our discretion, to
restore them to their status quo before the unlawful discrimination
against them.
We shall therefore order the respondent to offer to all the above-
mentioned persons, except Henry Waters '311 immediate and full rein-
statement to their former or substantially equivalent positions 39 with-
out prejudice to their seniority or other rights and privileges.
Such reinstatement shall be effected in the following manner : All
employees hired after August 9, 1935,40 shall, if necessary to provide
employment to the persons to be offered reinstatement, be dismissed.
If thereupon, by reason of a reduction'of force since the date of the
hearing 41 there is not sufficient employment immediately available for
the remaining employees, including those to be offered reinstatement;
all available positions shall be distributed among such remaining em-
ployees in accordance with the respondent's usual method of reducing
its force, without discrimination against any employee because of his
union affiliation or activities, following a system of seniority to such
extent as has heretofore been applied in the conduct of the respondent's
business. Those employees remaining after such distribution for
whom no employment is immediately available shall be placed upon a
preferential list prepared in accordance with the principles set forth
in the previous sentence, and shall thereafter, in accordance with such
list, be offered employment in their former or substantially equivalent
positions, as such employment becomes available and before other
persons are hired for such work.
° Henry Waters did not desire reinstatement because of his physical condition.
as Vernon Dell Curtis and William Daugherty were not working for the respondent on
June 10, 1935, the date of the strike , but each had worked for the respondent in the past.
Our Order directs their reinstatement to the positions last held or to a substantially
equivalent position.
40 The strikers made their first mass application for reinstatement on that. date. With
respect to Vernon Dell Curtis and William Daugherty , the date governing the dismissals
to be effected will be the date from which their respective awards of back pay runs, which
is discussed infra.
a The figures furnished by the respondent show that there was no reduction of force
prior to the date of the hearing.
PHELPS DODGE CORPORATION 601
We shall order the respondent to make the above-named persons,
with the exception of Henry Waters, Vernon Dell. Curtis, Grover
Cornett, and William Daugherty, whole for any loss of pay they have
suffered by reason of the respondent's discriminatory failure to hire
them by January 1, 1936,42 by payment to each of them of a sum equal
to the amount he normally would have earned as wages from Jan-
uary 1, 1936, to the date of the offer of reinstatement, less his net
earnings 43 during said period, deducting, however, from the amount
otherwise due to each of the said employees, monies received by said
employee during said 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 the funds for said relief projects.44
With respect to Henry Waters, we have found that he was afflicted
with defective lungs to such an extent as to prevent his employment
underground. The record simply establishes this condition as existing
in 1937. In view of the vagueness of the date we shall presume that
Waters' physical condition rendered him unfit for underground work
on January 1, 1937. We shall order the respondent to make him whole
for any loss of pay which he suffered by reason of the respondent's
discriminatory failure to reinstate him by January 1, 1936, by payment
to him of a sum equal to the amount he normally would have earned
as wages from January 1, 1936 to January 1, 1937, less his net earnings
and with similar deductions as described in the preceding paragraph.
With respect to Vernon Dell Curtis and Grover Cornett, we shall
order their back pay computed from January 1, 1936 45 to the date of
the offer of reinstatement but to exclude the period from March 16,
1938, the date of the Trial Examiner's Intermediate Report in which
43 Since it is impossible to ascertain the order in which the respondent would have rein-
stated the strikers if it had not discriminated against them , we shall fix a date marking
the end of a period within which the respondent could reasonably have put all of them
back to work. As we have found the evidence discloses that between August 9, 1935, and
January 1 , 1936, the respondent hired approximately 156 persons . Of this group approxi-
mately 116 were muckers and 40 were miners. By January 1, 1936, therefore , the respond-
ent could have returned to work all of the strikers whom it discriminatorily failed to
reinstate . Accordingly , back pay will be allowed from that date.
43 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else -
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local V590, 8 N. L. R. B. 440 . Monies
received for work performed upon Federal, State , county, municipal , or other work-relief
projects are not considered as earnings, but, as provided below in the Order, shall be
deducted from the sum due the employee , and the amount thereof shall be paid over to the
appropriate fiscal agency of the Federal , State, county , municipal , or other government or
governments which supplied the funds for said work -relief projects.
44 Republic Steel Corporation v. National Labor Relations Board and Steel Workers Or-
ganizing Committee, 107 F. ( 2d) 472 (C. C. A. 3 ), decided November 8, 1939).
45 Each of these men had made individual application for reinstatement prior to that
date. See Section III B , supra.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lie recommended dismissal of the complaint as to these two persons,
to the date of the order herein. This is in accordance with our rule"
that the respondent could not have been expected to offer jobs to
persons after it received the Intermediate Report recommending the
dismissal of the complaint as to these persons.46
With respect to William Daugherty, in view of the fact that he
was not working for the respondent at the time of the strike we shall
order the respondent to make him whole for any loss of pay which
he suffered by reason of the respondent's discriminatory failure to hire
him by January 30, 1937,47 by payment to him of a suns equal to the
amount he normally would have earned as wages from that date to
.the date of the offer of reinstatement as computed above. We shall
also order his back pay to" exclude the period from March 16, 1938, to
the date of the order herein for the same reason as set forth above in
the cases of V. D. Curtis and Cornett.
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, Mill and Smelter Workers Local
No. 30 is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By discriminating in regard to the hire and tenure of employment
of Edgar Lewis Hargus, John Henry Key, George Edward Frazee,
Edward Bowden, Paul Amaro, Wilfred Davis Mortenson, Anson Perry
Windsor, Emery Adelbert Curtis, Tom Abedin, Joe Henry Dunkerson,
Grover D. Windsor, Martin Vaclav, Montague Reed, Milton Wynn,
Alexander Kalastro, William Henry Bigelow, William Windsor, Ellis
Meran Scales, Frank Erkkila, Luke Sertich, Merrell Ernest Johnson,
George Gerhardt, William Graham, William Edward Sharp, Lester F.
Bethel, Michael Mihelich, Pete D. Caretto, P. C. Lytle, Jesse Edge,
Frank Peterson, Ben H. Stringer, George C. Rohrer, Clyde Bigelow,
J. Al. Morris, H. D. Edge, Henry Waters, Vernon Dell Curtis, Grover
Cornett, William Daugherty, and Herschel Montgomery, and thereby
discouraging membership in the Union, the respondent has engaged in
46Matter of E. R. Ilafpelfinger Company, Inc. and United Wall Paper Crafts of North
America , Local No. 6, 1 N. L. R. B. 760; Matter of Kentucky Firebrick Company and
United ' Brick and Clay. Workers of America, Local Union No. 510, 3 N. L. R. B. 455; order
enforced in National Labor Relations Board v. Kentucky Firebrick Company, 99 F (2d) 89
(C. C. A. 6).
41 Daugherty made an individual application for employment on January 15, 1937. The
record shows that 16 miners and 6 muckers who had not theretofore worked for the re-
spondent were hired between January 15 , 1937, and January 30, 1937. Accordingly, we
will award Daugherty back pay from January 30 , 1937, by which date he could have been
reinstated if the respondent had not discriminated against him.
PHELPS DODGE CORPORATION 603
and is engaging in unfair labor practices within the meaning of Sec-
tion 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 re-
spondent '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. By. failing to employ William M. Day, Levi Crandall, Richard
Johnson, John Patrick Foley, and Leonard Guess, the respondent has
not engaged in unfair labor practices within the meaning of Section
8 (3) of the Act.
ORDER
Upon the basis, of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Phelps Dodge Corporation, and its officers, agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Mine, Mill
and Smelter Workers Local No. 30, or any other labor organization of
its employees, by discriminating in regard to hire or tenure of employ-
ment or any terms or conditions of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion 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 following persons immediate and full reinstate-
ment to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges, dismissing
if necessary all employees hired since the dates indicated, in the manner
set forth in the section entitled "Remedy," above, and place those
for whom employment is not immediately available upon a - prefer-
ential list and offer them employment as it becomes available, in the
manner set forth in said section : Edgar Lewis Hargus, John Henry
Key, George Edward Frazee, Edward Bowden, Paul Amaro, Wilfred
Davis Mortenson, Anson Perry Windsor, Emery A.delbert Curtis, Tom
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abedin, Joe Henry Dunkerson, Grover D. Windsor, Martin Vaclav,
Montague Reed, Milton Wynn, Alexander Kalastro, William Henry
Bigelow, William Windsor, Ellis Meran Scales, Frank Erkkila, Luke
Sertich, Merrell Ernest Johnson, George Gerhardt, William Graham,
William Edward Sharp, Lester F. Bethel, Michael Mihelich, Pete D.
Caretto, P. C. Lytle, Jesse Edge, Frank Peterson, Ben H. Stringer,
George C. Rohrer, Clyde Bigelow, J. M. Morris, H. D. Edge, Vernon
Dell Curtis, Grover Cornett, William Daugherty, and Herschel
Montgomery ;
(b) Make whole Edgar Lewis Hargus, John Henry Key, George
Edward Frazee, Edward Bowden, Paul Amaro, Wilfred Davis Mor-
tenson, Anson Perry Windsor, Emery Adelbert Curtis, Tom Abedin,
Joe Henry Dunkerson, Grover D. Windsor, Martin Vaclav, Montague
Reed, Milton Wynn, Alexander Kalastro, William Henry Bigelow,
William Windsor, Ellis Meran Scales, Frank Erkkila, Luke Sertich,
Merrell Ernest Johnson, George Gerhardt, William Graham, Wil-
liam Edward Sharp, Lester F. Bethel, Michael Mihelich, Pete D.
Caretto, P. C. Lytle, Jesse Edge, Frank Peterson, Ben H. Stringer,
George C. Rohrer, Clyde Bigelow, J. M. Morris, H. D. Edge, and
Herschel Montgomery for any loss of pay they may have suffered
by reason of the respondent's discriminatory refusal to reinstate them,
by payment to each of them of a sum of money equal to that which
each would normally have earned as wages from January 1, 1936, to
the date of the offer of reinstatement or placement upon a preferential
list, less the net earnings of each during said period; deducting, how-
ever, from the amount otherwise due each of said employees, monies
received by said employees during said 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 gov-
ernments which supplied the funds for said work-relief projects;
(c) Make whole Henry Waters for any loss of pay he may have
suffered by reason of respondent's discriminatory refusal to reinstate
him, by payment to him of a sum of money equal to that which he
normally would have earned as wages from January 1, 1936, to Jan-
uary 1, 1937, less his net earnings during said period, deducting, how-
ever, from the amount otherwise due him, monies received by him
during said 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 sup-
plied the funds for said work-relief projects;
(d) Make whole Vernon' Dell Curtis and Grover Cornett for any
loss of pay they may have suffered by respondent's discriminatory
PHELPS DODGE CORPORATION 605
refusal to reinstate them , by payment to each of them of a sum of
money equal to that which each would normally have earned as wages
from January 1, 1936, to March 16, 1938 , and from the date of the
service of this Order to the date of offer of reinstatement or place-
ment upon a preferential list, less the net earnings of each during the
said periods , deducting , however, from the amount otherwise due to
each of said employees , monies received by said employees during said
periods 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 the funds
for said work-relief projects;
(e) Make whole William Daugherty for any loss of pay he may
have suffered by respondent 's discriminatory refusal to reinstate him,
by payment to him of a sum of money equal to that he would lior-
mally have earned as wages from January 15 , 1937, to March 16, 1938,
and from the date of the service of this Order to the date of rein-
statement or placement upon a preferential list, less his net earnings
during said periods ; deducting , however, from the amount otherwisq
due him, monies received by him during said periods for work per-
formed upon Federal, State, county , municipal, or other work-relief
projects, and pay over the amount, so deducted, to the appropriate
fiscal agency of the Federal , State, county, municipal, or other gov-
ernment or governments which supplied the funds for said work-
relief projects;
(f) Post immediately in conspicuous places throughout its mines
at Bisbee, Arizona , and maintain for a period of at least sixty (60)
consecutive days notices stating that the respondent will cease and.
desist in the manner set forth in 1 (a ) and (b ) ; that it will take the
affirmative action in 2 (a), (b), (c ), (d), and (e) of this Order; and
that the respondent's employees are free to become or remain mem-
bers of International , Union of Mine , Mill and Smelter Workers Local
No. 30 , and that the respondent will not discriminate against any
employee because of membership or activity in that organization;
(g) Notify the Regional Director for the Twenty -first 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 dis-
criminated in regard to the hire and tenure of employment of William
M. Day, Levi Crandall , Richard Johnson , John Patrick Foley, and
Leonard Guess.