Shattuck Denn Mining Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1965

151 N.L.R.B. 1328 (N.L.R.B. 1965)

1328 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Shattuck Denn Mining Corporation ( Iron King Branch) and
International Union of Mine, Mill and Smelter Workers, Local
Union No. 942. Case No. 28-CA-1085. March 31, 1965
DECISION AND ORDER
On December 17, 1964, Trial Examiner Louis S. Penfield issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a brief in support thereof, and
the General Counsel filed a brief in answer to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that the Respondent,
Shattuck Denn Mining Corporation (Iron King Branch), Humboldt,
Arizona, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order with
the following modifications :
As Arizona is a right-to-work State, the phrase "except as author-
ized in Section 8(a) (3) of the Act" is deleted from paragraph 1(a)
of the Recommended Order and the first indented paragraph of
the notice; and the phrase "except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8(a) (3) of the Act" is deleted from paragraph 1(b) of the Recom-
mended Order and the third indented paragraph of the notice.
151 NLRB No. 129.
SHATTUCK DENN MINING CORPORATION, ETC. 1329
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding with all parties represented was heard before Trial Examiner
Louis S. Penfield in Prescott, Arizona, on August 4 and 5, 1964, upon a complaint
of the General Counsel and answer of Shattuck Denn Mining Corporation (Iron
King Branch), herein called Respondent.' The issues litigated were whether Respond-
ent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended, herein called the Act.
Upon the entire record, including consideration of briefs filed by the parties, and
upon my observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Shattuck Denn Mining Corporation is a Delaware corporation which maintains
a place of business at Humboldt, Arizona, known as its Iron King Branch. At all
times material to this proceeding it has engaged in the business of mining and milling
lead and zinc ores at this location. During the past year, Respondent at its Iron
King Branch mined, produced, and sold products valued in excess of $50,000 which
it shipped directly to points located outside the State of Arizona. During the same
period Respondent purchased and received goods for use in connection with its Iron
King Branch valued in excess of $50,000 which were shipped directly to it from points
located outside the State of Arizona. I find that at all times material Respondent
has been engaged in a business affecting commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction in this
pioceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers, Local Union No. 942,
herein called the Union, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The complaint alleges, in substance, that Respondent discriminatorily discharged
Nick Olvera, that its employees struck to protest this unfair labor practice, that it
threatened striking employees with discharge, that it discharged Lupe Jaime for his
strike activity, and that it refused to reinstate certain strikers. Respondent denies
the discriminatory nature of the discharges of Olvera and Jaime and its threats to
discharge striking employees, and asserts that the strike was an economic one and
that it only refused to reinstate strikers permanently replaced.
Respondent's employees have been represented by labor unions for 10 years or
more. The first bargaining representative was a Federal labor union affiliated with
the AFL-CIO. At some time after 1956 this union was succeeded by United Steel-
workers of America, Local Union No. 5761, AFL-CIO, herein called the Steelwork-
ers. The Steelworkers had collective-bargaining agreements with Respondent and
represented its employees until April 1964. In March 1964 the Union instituted
Board representation proceedings, and following an election the Union was certified
on April 2, 1964, as the statutory representative of Respondent's employees Shortly
after the certification, an existing contract with the Steelworkers was terminated. At
the time of the incidents with which we are concerned no new written collective-
bargaining agreement had been negotiated or executed with the Union, but Respond-
ent had granted the Union recognition and had orally agreed that pending the nego-
tiation of a written agreement it would meet with the Union on grievances. As will
be set forth more fully below, several grievance meetings subsequently took place.
'The complaint issued on July 1, 1964, and is based upon charges and amended charges
filed with the National Labor Relations Board, herein called the Board, on May 8 and 13,
1964, respectively. Copies of the complaint, the charges, and amended charges haN e been
duly served upon Respondent.
783-133-66-vol. 151-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 9, 1964, the Union sent Respondent a letter advising it that the Union
had elected certain temporary officers and stewards. Included among those listed
was Nick Olvera, designated as vice president and as a member of the union grievance
committee.
At all times material herein the overall supervision of the mine was vested in Dan
Kentro, the general manager. During the same period a Mr. Sundeen was the mine
superintendent, Homer Edwards the night-shift foreman, and Derek Channon a shift
boss.2 It is undisputed, and the record establishes, that each of these men possessed
supervisory authority within the meaning of the Act at all times pertinent to this
proceeding.
B. The April 21 incident involving Nick Olvera
The significant occurrences in this proceeding arise in substantial measure from
the reaction of Respondent and the Union to an incident involving Nick Olvera which
took place while Olvera was working in the mine on April 21, 1964. Nick Olvera
and Tony Portugal were working together as partners at this time. On April 21 they
were working on the swing shift. They were given their orders principally by Shift
Boss Derek Channon, but sometimes also by Night Foreman Homer Edwards. After
reporting to work at the 2,300-foot level on this date, they proceeded to a work
station located on the 2,400-foot level They took a variety of equipment with them
to this location. After working there for several hours, they discovered what is known
in mining parlance as a "missed hole." A missed hole exists where a charge of pow-
der, either because of defective wiring or a defective fuse, has failed to go off. The
presence of unexploded powder constitutes a safety hazard, and upon discovery of
the existence of a missed hole miners are required to clean around it, obtain a new
fuse, and set it off before proceeding with other work in the area. Safety regulations
also require that in the preparation and setting off of all blasts two miners must work
together. After discovering the missed hole and doing some preliminary cleaning up,
Portugal and Olvera went from the 2,400-foot level to the 2,300-foot level where all
fuses are stored. It was their plan to obtain a fuse, return and finish cleaning up the
hole, set the new fuse, remove their equipment from the area, and then set off the
blast At the time they reached the 2,300-foot level it was 6:20 p.m Both assumed
that by the time they had completed preparations foi the blast it would be nearly
7 o'clock and that this would be a suitable time for lunch.3 It stands undisputed that
wherever possible miners prefer to set off blasts immediately preceding their lunch
hour so that smoke and gases may clear out at a time when they are idle and thus
it will be possible to proceed with work when the lunch period is completed. They
regard this as to their advantage since they are paid in part on a tonnage basis for
ore mined. Presumably such timing would also be to the advantage of an employer
interested in maximum production Upon reaching the 2,300-foot level, Portugal
and Olvera happened to meet Shift Boss Channon.4 Portugal told Channon of the
missed hole and Channon told him "to go ahead and blast it as soon as I could."
Olvera, who was standing nearby, heard what Channon said and he called out with
some vigor "lunch time." Both Portugal and Olvera agreed that this was all that
Olvera said at this time Olvera insists that all he meant by this remark was to call
to Channon's attention that there was still preparation to be done, and that when
they were actually ready to blast it would be lunchtime which, as we have noted, is
regarded as a preferred time for blasting. Channon, however, without awaiting or
seeking an explanation from either Portugal or Olvera, apparently construed the
remark as a defiance of his order and "really blew his stack." With a display of
anger, and using obscene and profane terms, Channon turned to Olvera and told
him, as Portugal puts it, "that he had been trying to four-letter word me and I am
going to four-letter word you." Following this Channon turned to Portugal and said,
"Wait a minute, Tony, Nick don't want to blast it." Portugal then left Channon and
2 Throughout the transcript the name Channon is repeatedly incorrectly spelled as
"Schannon." It is hereby ordered that the transcript be corrected where necessary to
show the proper spelling
3 The record shows that swing-shift lunch is generally taken sometime between 7 and 7.30
p in The timing is somewhat flexible since it is usually geared to the completion of a
particular task
4It seems clear from the record that it was standard procedure for miners to clean and
blast any missed hole that they discovered without receiving special orders from a fore-
man Thus, presumably, had they not met Channon at this time, Portugal and Olvera
would have proceeded in the manner which they contemplated and the blast would have
been set off approximately an hour earlier than it was.
SHATTUCK DENN MINING CORPORATION, ETC. 1331
Olvera and went to the storage area to get a fuse . With his departure Channon first
directed Olvera to dig a ditch, but before Olvera could commence on this, he changed
the order and told him to break boulders on the "grizzly ." ; Olvera, without argu-
ment, commenced work on the grizzly as directed . While getting the fuse Portugal
met Night Foreman Homer Edwards and told him of the missed hole but made no
mention of the argument between Channon and Olvera . Edwards told Portugal that
since it was already 6 20 he should go ahead and blast at lunchtime . Portugal noted
that after this both Channon and Edwards left the 2 , 300-foot level and "went up on
top." When Portugal returned with the fuse he found Olvera working on the grizzly.
He asked Olvera if he was ready to go down and set the blast. Olvera replied that
he was willing to do so if Channon would so direct him but at the time he was under
orders from Channon to clean the grizzly. Since Portugal could not take further
steps in the preparation of the blast by himself , he joined Olvera on the grizzly. They
worked there for nearly an hour when Channon reappeared and Portugal asked him
if he would send Olvera to help with the blast. Channon thereupon directed Olvera
to go with Portugal . It was then after 7 p.m . and it is estimated that by the time the
missed hole was prepared and the equipment moved it was between 7 . 45 and 7:50
that the blast actually went off.° Olvera worked not only for the balance of his shift
on the 21st but continued to work steadily thereafter until April 29, the day of his
discharge , without any further incidents with Channon or anyone else .7
C. The grievance meeting of April22 and the filing of the Olvera
abusive language grievance
On April 22 , 1964, a scheduled meeting between Respondent and the union griev-
ance committee took place . Grievances relating to mine safety conditions which had
been filed by the union grievance committee were the subject matter of discussion.
Members of the grievance committee , including Olvera, attended Respondent was
represented by Manager Kentro and a number of its supervisors . The meeting com-
menced at approximately 3 p in. and continued for over 3 hours. Olvera, among
other grievance committee members, participated extensively in the discussions which
ensued. The discussions were heated and extensive but were amicable , and they
resulted in some grievances being resolved in the manner that the Union urged, with
others being denied. That in substantial measure the Union was satisfied with such
results is evidenced by a letter from the grievance committee to Respondent dated
April 28 , 1964 , in which the grievance committee expressed "a vote of apprecaition"
for the "tremendous stride taken in underground safety in the past week."
Following the April 21 incident , Olvera and Portugal had reported the conduct of
Channon to the Union . A grievance was thereafter prepared and signed by Olvera
and Portugal as well as the members of the grievance committee . It read as follows:
The foreman using abusive language and threatening complainant , an officer
and steward of local union , union requests that this foreman be reprimanded
and this practice stopped immediately.
Union President Donald Covey took this signed grievance to the April 22 meeting
but he did not present it to management until that meeting had concluded , and its
contents were not discussed at all on that day. Kentro concedes that prior to this
time neither Channon nor anyone else had made any report concerning the April 21
incident , and that his first knowledge of it came from the filing of this abusive language
grievance on April 22. Kentro immediately directed that Mine Superintendent
5 The grizzly in the mine is an area where ore is dumped from the train It consists
of metal strips through which the fine muck falls to an area below Large boulders
however are caught on the strips and must be broken up before they can fall through
O Portugal and Olvera, who had not had lunch prior to this time, actually went down
to prepare the blast at a time when they noimally would have been eating . Apparently
they did not actually eat their lunch until after the blast which would be at a time con-
siderably later than normal
7 ,Neither Channon nor Edwards were called as witnesses by Respondent although both
were still in Respondent's employ at the time of the hearing and presumably available.
The foregoing recital of the "incident" of April 21 is based upon the credited and con-
sistent testimony of Portugal and Olvera Respondent raises some question as to how
much of the altercation between Olvera and Channon Portugal heard, since admittedly
he left while they were still talking The iegord is clear , however , that Portugal heard
the initial words of Olvera and the initial responding outburst of profanity from Chan-
non He corroborates Olvcra on all of this, and I find that the incident occurred in sub-
stantially the manner set forth above.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sundeen investigate the matter and report back to him. Subsequently, Kentro
received a written report from Sundeen, and another written report from Channon
on the incident. In addition, several days later Kentro discussed the incident orally
with Channon. Kentro states the substance of these reports from his supervisors to
have been as follows: That when Portugal told Channon of the missed hole, Channon
had told Portugal "to go ahead and blast it"; that at this point Olvera started hollering,
"No, no, no and waving his hands . . ."; that Channon "assumed he didn't want to
blast the hole at that point"; that Channon then "told Tony not to worry about it";
and that Channon and Olvera then got into a real argument during the course of
which Channon used profane language. Kentro states that he concluded from these
reports that Olvera had been insubordinate, had refused to obey a direct order of
Channon to blast, and this had had the inevitable result of interfering with Portugal's
carrying out the orders since two men were required if the blast were to take place.
Kentro states that he regarded this insubordination as justification for the abusive
language used by his shift boss. The written reports submitted by Sundeen and
Channon were not offered in the record, and, as we have seen , Channon was not
called upon to testify.
D. The grievance meeting of April 28 and the discharge of Nick Olvera
Management scheduled a grievance meeting for April 28, 1964, to consider two
grievances, including the abusive language grievance noted above. Portugal and
Olvera as well as members of the grievance committee attended for the Union.
Manager Kentro, the mine superintendent, and some other supervisors, including
Channon and Edwards, were present representing management. At the opening of
the meeting, Kentro remarked to the union committee that "We was turning in too
many grievances, small grievances that didn't amount to much, or something like
that, and he didn't like it." 8 The group first considered a grievance concerning the
seniority status of an employee as it affected his right to a particular job. After a
brief discussion management agreed to investigate this matter further. The parties
then proceeded to discuss the Olvera abusive language grievance. Kentro opened
the discussion on this by reciting the functions of shift bosses and pointing out that
employees were expected to obey their orders. Kentro then stated that although he
did not condone the use of abusive language generally, he felt that in this particular
instance Channon's language might be justified since it appeared to him that Olvera
may have been insubordinate and have refused to carry out an order and that it was
understandable that Channon would react strongly when faced with defiance of his
authority. Kentro told the committee that he regarded disobedience of an order as
a serious breach of discipline and possible grounds for Olvera's discharge if he con-
cluded that the incident had in fact taken place in the manner in which it had been
reported to him. Kentro then called upon Olvera and Portugal to give their versions
of the incident. Olvera and Portugal then related the story of the April 21 incident
to Kentro in substantially the manner in which it is set forth above in subsection B.
,Channon, who was present at the meeting, did not dispute their story in any matter
.of substance except to insist that in response to his initial order Olvera had said,
"No, no" and that Channon had construed this to be a refusal to obey his order.
However, there is no showing that, except for his initial statement to Portugal,
CChannon then gave any further direct order to Olvera to blast. Portugal and Olvera
not only insisted that Olvera had not in fact said, "No, no", but they also undertook
to point out that it was unreasonable for Channon to have construed any remark as
a refusal to obey his order when almost simultaneously with this alleged definance
Olvera had promptly responded to Channon's order to work on the ditch and the
grizzly. No one claims that Channon had undertaken to probe the meaning of the
"No, no" or any other remark before his outburst or before directing Olvera to
undertake the other work. The meeting concluded with Kentro stating that he would
think over the matter further and make known on the following day his decision in
regard to the discharge of Olvera.
On the following day Olvera was handed a discharge slip dated April 28, 1964,
signed by Kentro which read as follows:
Discharged for refusing to obey an order at or about 6 p.m. on April 21, 1964,
by his supervisor Mr. Derek Channon and for interfering with an order given to
Mr. Tony Portugal by Mr. Portugal's supervisor, Mr. Derek Channon at the
same time noted above.
s This statement , attributed to Kentro by Portugal, stands undenled in the record.
SHATTUCK DENN MINING CORPORATION, ETC. 1333
E. The discharge grievance, the notice, and the strike
Following his discharge on April 29, Olvera proceeded to the union office and,
after consulting with union officials, a written grievance was prepared. This docu-
ment described the grievance as the "unjust discharge of Nick Olvera" and sought as
a remedy "reinstatement with full backpay and all rights restored." It was filed with
Respondent on April 29 and shortly thereafter Respondent scheduled a meeting with
the Union for May 4, 1964, to consider it.
On May 1, 1964, Respondent posted on its bulletin board a notice to all of its
employees signed by Manager Kentro which read as follows:
This notice to all employees at this operation is being made because of rumors
which have come to our attention that there may be an attempt by some employ-
ees to stop the operation of the Iron King Mine in the near future. The Com-
pany wishes to state that operation and production will continue at the Iron King.
In order to avoid any misunderstanding, the Company hereby notifies you
that each employee is expected to report for work at his regularly scheduled
work shift time, unless he has an excused absence permit signed or approved by
both his Department Head and the General Manager. Employees failing to
report for work will be cohis,dered as having quit and will be dropped from the
payroll, unless they have or obtained the excuse absence permit referred to above.
Kentro testified that this notice was posted because ever since the Union had been
designated as bargaining representative rumors had circulated that a strike might
ensue, and that Respondent wished to make it perfectly clear that in the event of a
work stoppage it intended to continue its operation, and that it wished to remind its
employees of its long-established policy concerning unexcused absences.9
On Sunday, May 3, 1964, approximately 80 of Respondent's employees who were
members of the Union met at a special meeting called by the Union to consider
action regarding Olvera's discharge. The circumstances of the discharge were dis-
cussed at length and thereafter the union members unanimously voted that if the
grievance were not satisfactorily adjusted upon the following day, they would under-
take a strike to protest the unjust discharge of Olvera.
On May 4 the scheduled meeting on the discharge grievance was held. The Union
was represented by local officers, International representatives, members of the
grievance committee, and Olvera and Portugal. Manager Kentro and various super-
visors, including Channon, represented Respondent. Olvera and Portugal repeated
their versions of the April 21 incident, recounting events in a manner similar to what
has been set forth above. Kentro would not permit union representatives to question
Channon. After listening to a recital of the events, Kentro stated that he had heard
nothing new and that be was standing by his decision on the discharge of Olvera.
The chairman of the grievance committee thereupon remarked that if this were the
case, the Union had no alternative but to strike to protest the unjust discharge. On
the following morning pickets appeared in front of the mine. A majority of the 200
employees working at that time observed the picket line. Immediately Kentro, using
newspaper and radio, announced that the mine would continue to operate, that he
regarded those on strike as having quit, and that he was looking for replacements.
On May 7 Respondent sent letters to each of the strikers telling them that since they
had failed to report for a scheduled work shift it was enclosing a paycheck, that
production at the mine was continuing, that the Company was undertaking to replace
those who had not reported to work but that they would be reinstated without
prejudice if reporting before replacements had been secured, and that since they had
removed themselves from actively employed status, they had become ineligible to
receive benefits under a group hospitalization and medical care policy.
On May 11 representatives of the Union and of management met with a Federal
conciliator in an effort to settle the strike. The only issue between the parties con-
cerned the discharge of Olvera and his reinstatement. An effort was made by the
conciliator to end the strike by getting both parties to agree to submit the merits of
e While Kentro testified that this notice purported only to be a reiteration of Respond-
ent's rules regarding unexcused absences, a comparison of the notice and the "rules
governing excused and unexcused absences" which had been in effect since June 11, 1902,
shows significant differences In the rules an excused absence might be obtained from
the department head alone. In the notice approval must be obtained from both the
department head and the general manager. The rules provide that an employee will be
dropped from the payroll and "considered as having quit" only if absent for 3 consecu-
tive work shifts The notice advises that failing to report for any scheduled work shift
without an excused absence will cause the employee to be dropped from the payroll.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Olvera's discharge to arbitration. The Union agreed to this proposal, but Respondent
would not do so, and the meeting ended with no understanding of any sort being
reached.
Shortly after the meeting with the conciliator the employees met with union
officials to consider the status of the strike. After some discussion they reached an
agreement that inasmuch as Respondent was hiring replacements it would be advisable
to call off the strike and to handle Olvera's case by processing the charges already filed
with the Board. Thereafter, on or about May 14, 1964, the striking employees uncon-
ditionally offered to return to work. All were reinstated to their former jobs with the
exception of those whom Respondent claimed had been permanently replaced. There
were 19 in this category and each had been advised by a letter that he could not return
to work because a replacement had been hired.1°
F. The discharge of Lupe Jaime
Lupe Jaime was one of the strikers who went out on May 5 and who thereafter
participated in the picketing at the mine . Knowledge of his participation in the
strike is not denied by Respondent . Jaime was a long-time friend of Ernie Rivera,
a nonstriker . On Saturday , May 9, 1964, Jaime visited the home of Rivera and
engaged in a discussion with him concerning the reasons why Rivera had not joined
the other striking employees . Rivera explained to Jaime that he had a wife and
eight children to support and that he could not afford to go on strike. According to
Jaime, he then told Rivera that "You've got a lot of friends that probably wouldn't
want to speak to you after this, nobody will want to drink with you, eat lunch with
you or anything like that . . ." and that "you will probably go downtown and be
drinking, run into some of the fellows drinking , they will probably want to fight
you . . ." Rivera responded that he did not care if this happened , but that it was
necessary for him to continue working. Rivera acknowledges that this entire con-
versation was carried on in a friendly manner between two long-time friends. He
states that while Jaime did tell him that if he went downtown "they was going to
get me," Jaime did not threaten to "get him himself" nor did he regard Jaime as
indicating that he would be "one of the gang who would get him" but that he felt
the visit was only a warning from a "good friend of mine" that other strikers might
be angered if Rivera persisted in his refusal to join them . Mrs. Rivera overheard
this conversation and her version does not differ in substantial measure from that of
her husband . Like Rivera , she did not regard Jaime as having personally threat-
ened her husband , but only as having voiced a friendly warning concerning the
reactions of others . After Jaime had departed, Mrs. Rivera had occasion to tele-
phone the office of Respondent to report that Rivera could not come to work
because he was ill with the flu. She talked directly with Jack Pearce, an employee
of Respondent , and during the course of the conversation relayed to him what had
transpired with Jaime earlier in the day. Kentro was not present at the mine at
that time , but Pearce later in the day told him about his conversation with Mrs.
Rivera, and Kentro immediately drove to the residence of the Riveras. He states
that he asked both Riveras if Jaime "had threatened Mr. Rivera" and that both of
them replied in the affirmative . He then offered to assist them in instituting police
action against Jaime, but he states that they declined to accept this because Jaime
was an old friend . Kentro does not assert that he made any effort to probe any
further into the nature of the so-called threat , or that the Riveras related any specif-
ics to him concerning Jaime's visit which differ from the account set forth above.
After departing from the Rivera residence , Kentro made no further effort to dis-
cuss the alleged threat with Jaime or anyone else, but he decided that Jaime should
be discharged and on May 11, 1964, wrote him a letter reading as follows:
This is to advise you as of May 9, 1964, you have been discharged by the
Shattuck Denn Mining Corporation , Iron King Branch, Humboldt, Arizona, for
unlawful conduct.
G. Discussion of the issues and conclusions
The threshold issue, and indeed the one which in substantial measure determines
all the others, is the significance of the April 21 incident concerning Olvera, and an
10 Twenty employees were named in paragraph 13 of the complaint as having been denied
reinstatement. The General Counsel amended his complaint to drop the name of Al J
Contreras after it appeared that Contreras had in fact been reinstated It is conceded by
Respondent that the other 19 were not reinstated, and the General Counsel offered no
evidence to show that they had not been permanently replaced during the strike and be-
fore such time as those named had offered to return to work.
SHATTUCK DENN MINING CORPORATION, ETC. 1335
evaluation of the nature of Respondent's response to it. This must be considered
from three aspects: (1) whether Olvera in fact was insubordinate, disobeyed an
order, and interfered with the work of another; (2) whether regardless of what
Olvera had done Kentro had reasonable grounds for believing him to have been
insubordinate; and (3) whether without regard to the reasonable character of the
discharge there is any basis for concluding that the discharge of Olvera was unlawful
because motivated by a determination upon the part of Respondent to discourage
its employees in the pursuit of their statutory right to file grievances or engage in
other protected activities.
The first question must be answered in the affirmative. The credited and con-
sistent stories of Portugal and Olvera about the April 21 incident do not even sug-
gest a pattern of insubordination. In view of the hour and of the assumptions upon
which both Olvera and Portugal were proceeding, it is altogether understandable
that Olvera should have suggested lunchtime as the appropriate time to blast. There
is no reason to question Olvera's assertion that by such statement he intended no
defiance of an order but merely was signifying his hope and wish regarding a blast-
mg time. Olvera was an employee of 9 years' standing with a blameless record.
There is no showing of long-standing bad feeling between him and Channon. No
one claims that Channon responded to Olvera's lunchtime remark with a direct
order to blast then and there, or, perhaps even more significantly, that Channon
undertook any inquiry into Olvera's meaning. Channon's only response to Olvera's
remark was a stream of profanity followed by a direct order to Olvera that he
embark upon another task. It is undisputed that Olvera fully complied with this
direct order and with the later direction from Channon that he join with Portugal
and blast the missed hole. Why Channon reacted with such vehemence to Olvera's
remark is obscure on this record. It may be rooted in a variety of things, including
Channon's relative inexperience as a supervisor or in the pressure of unknown prob-
lems. Any obscurity as to meaning, however, arises principally from Respondent's
failure to call Channon to explain himself. With what we have before us, we can
only conclude that Channon lost his temper for some reason other than defiance or
misconduct upon the part of Olvera. Thus I find that there is no evidence whatso-
ever to establish that Olvera refused to obey a direct order or interfered with any
order given to Portugal. This finding is strongly buttressed by the conduct of Chan-
non himself. Not only did he fail to institute any action of his own against Olvera
for insubordination, but he did not even report the incident or seek advice from
higher management concerning it. Apparently he too concluded that Olvera had
not been insubordinate, and were it not for the filing of the abusive language griev-
ance, it seems likely that the incident would have been completely forgotten.
The second question is more difficult. Accepting the fact that Olvera was not
actually insubordinate, and that the incident itself is more properly characterized
as a misunderstanding, can we say that Kentro, acting on the information that came
to him, had no reasonable basis for believing Olvera to have been insubordinate?
If Kentro's belief rested on a solid foundation, then the discharge may have lawful
justification whether or not we agree that it reached a fair result. However, if the
contrary be true, we see Kentro both effecting the discharge of a long-term and
competent employee, and taking a strike over the issue for no readily discernible
reason Absence of a reasonable basis to support the asserted justification suggests
the possibility that Kentro may have been motivated by something other than a
desire to maintain proper discipline.
I am of the opinion that on this record no reasonable grounds are shown to sup-
port Kentro's apparent belief that Olvera had been insubordinate. Kentro obtained
his first knowledge of the incident from the filing of a grievance which charged one
of his supervisors with misconduct. His investigation of the incident came about
solely because this grievance made it necessary for him to find out the circumstances
of Channon's alleged abusive language. No satisfactory explanation is offered for
Channon's failure to report the matter before he was questioned during this inves-
tigation. As previously noted it is a reasonable inference that Channon himself,
the man most directly involved and affected, upon calming down after his flareup,
did not take a serious view of the incident and was prepared to forget it. However,
he was alerted that the incident was not to be forgotten when Superintendent Sun-
deen asked him to report upon his own alleged misconduct in connection with it.
It came up to him then, not as an incident involving the possible insubordination of
an employee, but as an incident for which he bore the responsibility for getting
higher management involved with the Union. Under the circumstances it would be
understandable that he would report the incident in a manner designed to put him
in the most favorable light with his superiors. We are precluded from exploring
this to the fullest extent, however, because Respondent has not seen fit to supply us
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the written reports which appear to have been initially prepared by both Sun-
deen and Channon regarding the incident, or to have called either one of them to
testify as to exactly what transpired. As Kentro reports the matter, however, the
version which he received from Channon differed from that later advanced by Por-
tugal and Olvera only in Channon's claim that Olvera's remark was not limited to
"lunch time" but that in response to Channon's direction to Portugal to blast, Olvera
had said, "No, no." Kentro makes no claim that Channon told him that he had
undertaken to explore the underlying reason for even the "No, no" statement. How-
ever, Kentro apparently reached his initial judgment relying on this alone. Even
assuming that at this point the investigation would in some measure support a
claim of insubordination, we must not forget that the final decision was Kentro's
alone and was not made until the matter had been fully aired and explored with
all interested parties present at the April 28 meeting. At this time Olvera explained
at length that it had not been his intention to defy an order, but only to signify
when he hoped the blast would take place. He was supported in this by Portugal.
It is true that throughout this meeting Channon adhered to his position that Olvera
had said "No, no" and that he regarded this at the time as a defiance of his order.
However, on this he was sharply disputed by both Olvera and Portugal Even
allowing for the fact that Kentro would tend to credit Channon, I find it difficult to
understand why he would continue to insist that insubordination had actually taken
place after hearing the full story fiom all participants. The "No, no" remark even
standing alone is not necessarily an expression of defiance. It could as readily be
the expression of a desire to explain something as Olvera asserts. With Kentro in
possession of knowledge that the incident had not been initially reported, that no
insubordination had been intended, that a conflict existed not only as to what had
been said but as to its meaning, that no effort had been made by Channon at the
time to ascertain the real meaning, that no direct order to blast forthwith had been
given by Channon, that subsequent and almost simultaneous orders by Channon
had been fully obeyed, and that the incident involved an inexperienced supervisor
and a long-term employee with a good record, I can see no reasonable basis for
Kentro's concluding that anything but a misunderstanding had occurred on April 21,
and I so find.
If, as I have found, Olvera was not in fact insubordinate, and Kentro had no
reasonable basis for believing him to be, the validity of Respondent's alleged justifi-
cation for the discharge is open to question. The issue is not whether Respondent
acted fairly or unfairly, reasonably or unreasonably, in discharging Olvera, for, as
Respondent correctly asserts, it had the right to act in such manner and the Board,
in fulfilling its statutory function, is not called upon to pass upon such questions on
their merits. The existence of a reasonable explanation for the discharge, however,
is not without relevance in determining the fact of discriminatory motivation which
is, of course, the central issue which confronts the Board in this proceeding. Failure
to advance a rational explanation does not of itself establish that another reason
exists, but it suggests such possibility for employers ordinarily do not discharge com-
petent employees without some compelling cause. It suggests a pretext, and prompts
a further examination of the record to ascertain if it discloses anything else that
might be regarded as the underlying reason, and, if so, a consideration of whether
such reason be unlawful.
As noted above, Respondent apparently had an amicable past bargaining history
with two unions covering a period of a number of years As far as this record
shows it had maintained a position of neutrality during the campaign which led to
the selection of the Union as the statutory representative in the latter part of March.
There is nothing to show the relative activity of the earlier unions,11 but it is clear
that the newly certified Union undertook to pursue its recently acquired bargaining
rights with vigor. Thus following its certification on April 2, the Union almost
immediately obtained an oral agreement from Respondent to meet with it on griev-
ances while negotiations for a written agreement were underway. In the space of
less than 4 weeks thereafter the Union had met with Respondent at least three times
pursuant to this agreement and had negotiated with it on at least six or seven indi-
vidual grievances. Kentro testified that from the time the Union won bargaining
11 The General Counsel adduced some evidence that Shift Boss Channon had told Olvera
and Portugal during the Union's election campaign that Kentro had stated to the super-
visors at a meeting that the mine might shut down if the Union came in. Kentro denies
even being at this meeting, and I am not satisfied from the testimony that Portugal and
Olvera correctly interpreted Channon's remarks as relaying a threat of shutdown if the
Union were selected Accordingly, I place no reliance on this testimony in making any
findings herein.
SHATTUCK DENN MINING CORPORATION, ETC. 1337
rights "there was talk of having a walkout," thus showing awareness that henceforth
the bargaining would be pursued intensively. The April 22 meeting was the second
of the grievance meetings following the certification, and was limited to consideration
of the more or less technical aspects of mine operation. These grievances appear
to have been settled in an amicable and satisfactory manner but with the considera-
tion of the abusive language grievance a week later we find management displaying
a different reaction. After protecting the filing of trivial grievances Kentro pro-
ceeded to justify the abusive language used by the shift boss by attacking Olvera's
conduct as insubordination. As we have seen he listened to the consistent stories
of Portugal and Olvera but maintained an adamant position despite the fact that
full acceptance even of Channon's version suggested no more than a misunderstand-
ing. Nevertheless we see Kentro insisting the conduct to be not only insubordination
but insubordination of so grave a nature that it warranted the extreme penalty of
discharge for a competent employee of 9 years' standing. At no time during this
meeting did Kentro even suggest that the issue might be resolved by a lighter penalty
such as a suspension, although in the past disciplinary cases had been accorded such
treatment. His only concession was to tell the assembled group that he would "sleep
on it over night." Thus his mind was already made up and that he did not even
give the matter serious consideration later is evidenced by the fact that the discharge
slip is dated April 28, the same day as the meeting All of this strongly suggests a
concern other than plant discipline. Respondent would characterize it as no more
than the showing of an intransigent attitude upon Kentro's part, which the Union
chose to regard as unjust and unfair. It would support this by pointing out that
at no time prior to the strike did the Union do more than protest the unjust character
of the discharge, and that prior to the filing of the charges in this proceeding it had
never asserted any form of protected activity to be a motivating factor. The record
bears out Respondent's claim as to the Union's assertions, but this does not serve to
refute the charge. An unjust discharge may or may not be unlawful, but the manner
in which persons not versed in legal niceties characterize it is not determinative.
The issue is not what the union representatives said or did at the time, but what can
reasonably be said to have in fact motivated Respondent's action.
I am of the opinion that the record as a whole indicates more than mere harsh-
ness in resolving the merits, and that an inference is warranted that the incident was
a mere pretext to cover up unlawful motivation. I cannot overlook the fact that
the April 21 incident would not even have come to light if the abusive language
grievance had not been filed. This grievance, though in itself seemingly trivial, was
the last of a series filed in rapid order by the newly certified Union. At the outset
of the meeting to consider it, we find Kentro making known his displeasure at the
Union for filing so many small grievances. Absence of overt hostility toward the
Union, and apparent acceptance of the bargaining duty have a passive character
which fails to offset the significance of action taken in the course of the bargaining
process itself whereby Respondent insisted upon the discharge of a grievant for an
ostensible reason not grounded, in fact, or reasonably believed to be so grounded.
Even assuming that in good faith Kentro believed discipline to have been breached,
he readily could have made his point by a lesser penalty. On the other hand the
discharge of one of the more forcible union adherents would serve as a warning to
the Union to take it easy, and at the same time challenge and weaken it. Kentro
was well aware of the possible consequences for he testified that in discharging
Olvera he knew there might be "some trouble" and that these things are "not taken
lightly by anybody." Nevertheless we see him not only discharging an employee
without good cause but also not retreating from his position even when faced with
knowledge that it might precipitate a walkout of the entire crew. No rational basis
for assuming such a risk is evident unless we regard the action as motivated by a
desire to protest the filing of grievances felt to be trivial, or as a means of testing the
determination of the newly chosen bargaining representative to stand up against
management resistance. Moreover the post discharge conduct of Kentro supports
an inference that Kentro may have been motivated in part by a desire to test the
strength of the Union, for it reflects an unyielding determination to adhere to a
position on a relatively minor incident regardless of the consequences until such
time as the union position might be substantially weakened. Thus in the notice of
May 1, as we shall see below, Respondent served notice on prospective strikers that
strike action might result in retaliation by Respondent At the discharge grievance
meeting on May 4 Kentro remained adamant and unyielding even though advised
that a strike was now a certainty. The immediate efforts to obtain replacements
and, after partial success on this score, the outright refusal to settle the incident by
the expedient of impartial arbitration are further evidence of a determination to
make no concessions which might redound to the Union's benefit. It was only when
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union itself gave up and the strikers agreed to come back without Olvera or the
replaced strikers that Respondent yielded. By this time of course the Union's bar-
gaining position, whatever it had been before, was substantially diminished. Under
all the circumstances I find that in the discharge of Olvera Respondent used the
April 21 incident as a mere pretext, and that its real motivation was to discourage
the Union's continued filing of grievances and its aggressive pursuit of bargaining.
Such motivation for the discharge is of course an unlawful one. The discharge
therefore is discriminatory within the meaning of Section 8(a)(3) of the Act, and it
also constitutes restraint and coercion within the meaning of Section 8(a) (1) of the
Act, and I so find.
The General Counsel contends that the notice to employees posted on May 1,
1964, is coercive because it contained a threat to penalize employees if they exercised
their right to strike. Respondent argues that the purpose of the notice was merely to
reiterate its "long established absenteeism rule," and that it was posted at a time when
no strike was actually threatened. Respondent argues further that the subsequent
public notices and the individual letters which it sent to its employees after the
strike make clear that Respondent's underlying objective in its notice was the lawful
one of letting the employees know that they might face replacement in the event
they failed to report for work. It is true that the Union had not formally threatened
a strike over the Olvera or any other issue by May 1. However, the notice by its
terms purported to be a response to rumors of a strike, rumors which Kentro con-
ceded had been prevalent ever since the Union had won the bargaining rights. By
May 1 Kentro was well aware that the situation had become more tense because of
the discharge of Olvera. By that time he had already received a grievance on this
discharge, and notices had been posted on the bulletin board calling a special union
meeting on the same issue for May 3. Kentro himself testified that in making the
decision to discharge Olvera on April 28 "[he] knew [he] was going to have some
trouble. These things aren't taken lightly by anybody." Thus there can be no ques-
tion that in undertaking to reiterate the so-called absenteeism rules, Respondent
gave full consideration to the imminent possibility of strike action. Possibly, if
Respondent had couched its notice in the same terms that appeared in its later post-
strike announcements and letters to employees it might be argued that it was merely
telling the employees of the possibility of their permanent replacement in the event
they struck. However, we cannot evaluate this notice in terms of Respondent's
poststrike conduct, but we must consider its effect in terms of its impact on employees
contemplating a strike. The notice itself does not mention replacements as such.
It does not even make any direct reference to an existing excused absence rule. As
has been pointed out above, far from restating the rule, it goes far beyond it by
requiring that both the department head and the general manager sign and approve
an excused absence permit, and by announcing that employees would be dropped
from the payroll for failure to report to any shift, whereas the rule limited such
action to failure to report to three consecutive shifts. The notice by its terms speaks
clearly. Although it does not use the word strike, it was posted while the Olvera
matter was in a state of ferment and the possibility of strike action imminent. In so
many words it says to all of Respondent's employees that if they fail to report to
work without an excused absence permit they will be dropped from the payroll.
Employees known to be considering a strike would reasonably construe this to con-
stitute a threat of discharge if they should go through with the action. I am satisfied,
and find, that this was the purpose and intent of the notice. I find, therefore, that
by posting the notice on May 1, 1964, Respondent has interfered with, restrained,
and coerced its employees in violation of Section 8(a) (1) of the Act.
Having found that Respondent discharged Olvera for discriminatory reasons, there
remains for consideration the character of the strike. The General Counsel urges
that I find it to be an unfair labor practice strike because it was undertaken to pro-
test the discriminatory discharge of Olvera. It is suggested by Respondent, however,
that the strike might be regarded as an economic one since Respondent was not
made clearly aware of its purpose. This claim must be rejected. It is abundantly
clear that the only matter in dispute between Respondent and the Union was the
discharge of Olvera. The Union made known its disagreement with Kentro's posi-
tion during the grievance meeting on April 28. As Kentro stated, he knew he "was
going to have some trouble" before he made the discharge. Not only did the Union
file a grievance on the discharge, but when Kentro rejected it at the later grievance
meeting, the Union then and there told him that it had no alternative but to strike.
During the meeting with the concilator sometime later, it was further made abun-
dantly clear that the only issue between the parties was the discharge. When finally
the Union elected to resolve the Olvera issue by use of Board processes, the strike
ended since no other issue remained. The evidence is overwhelming not only that
the strike was undertaken to protest the discharge of Olvera, but also that Respond-
SIIATTUCK DENN MINING CORPORATION, ETC. 1339
ent was well aware that this was a fact, and I so find Inasmuch as I have found
Olvera's discharge to be discriminatory and an unfair labor practice, it follows that
a strike to protest it is an unfair labor practice strike, and I so find.12
There is no dispute that on or about May 14, 1964, all the strikers made an uncon-
ditional offer to return to work. Respondent put all strikers back to work except those
who had been permanently replaced Respondent admittedly refused to reinstate
19 strikers for this reason alone. Justification for this action would exist only if the
strike were found to be an economic one. Having found it to be an unfair labor
practice strike, it follows that Respondent had a duty to take back the 19 when they
made an unconditional offer to return, displacing, if necessary, their replacements.
Having failed to do so I find that Respondent has thereby discriminated against
these strikers because of their participation in the strike in violation of Section
8(a) (3) of the Act, and also by the same conduct has interfered with restrained and
coerced its employees in violation of Section 8 (a) (1) of the Act.
We must finally consider the discharge of Lupe Jaime. Jaime was admittedly dis-
charged for his strike activity. Respondent's defense rests not upon a denial of this,
but upon what it claims to have been his misconduct in threatening a nonstriker.
The circumstances, as outlined above, fail to establish that Jaime in fact threatened
anyone. Respondent's own witnesses, the Riveras, make it clear that Jaime and
Ernie Rivera were old friends, that while Jaime may have gone to Rivera's house to
persuade Rivera to join the strikers, and may have pointed out that other strikers
might be angered if he failed to do so and might try to "get him," this was regarded
by both Riveras as only a warning from a friend and not a threat of personal retalia-
tion or the instigation of others to retaliate. Kentro's own version of what he learned
of the incident is not persuasive as justifying his action. Assuming that the initial
report he received from his office employee warranted his immediate visit to the
Rivera home, he does not report the Riveras' relating a tale of threats. He states
that both Riveras told him that Jaime had threatened Ernie Rivera, but this he states
only as his own conclusion rather than a recital of what they told him Jaime had
actually done. The Riveras report that they related to Kentro the facts of the Jaime
visit as they were recounted at the hearing, and that they flatly refused Kentro's offer
that they aid in the prosecution of Jaime. Subsequent to his visit to the Riveras,
Kentro made no effort to interview Jaime or otherwise to probe the matter but forth-
with discharged him for alleged misconduct. The pattern he follows resembles that
in the Olvera case. I find that not only is there no evidence whatsoever in the record
of misconduct by Jaime, but that there appears to be no reasonable basis for Kentro
reaching the conclusion that Jaime had, in fact, threatened Ernie Rivera. I am of
the opinion and find, therefore, that Kentro used the alleged threat as a pretext to
retaliate against him as a striker, and that Jaime's discharge actually came about
because he had engaged in protected strike activity. Finally, even if we assume that
Kentro did have a good-faith belief in Jaime's strike misconduct, this will constitute
no defense if in fact such misconduct did not occur. The United States Supreme
Court in N.L.R.B. v. Burnup and Sims, Inc., 379 U S. 21, recently held:
In sum, Section 8(a) (1) is violated if it is shown that the discharged employee
was at the time engaged in protected activity, that the employer knew it was
such, that the basis of the discharge was an alleged act of misconduct in the
course of that activity, and that the employee was not, in fact, guilty of that
misconduct.
I find that Respondent discharged Jaime for engaging in protected strike activity and
that by so discharging him, Respondent has discriminated against Jaime in violation
of Section 8(a) (3) of the Act, and by the same conduct has also interfered, restrained,
and coerced its employees in the exercise of the rights guaranteed by Section 7 of the
Act in violation of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section in, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
12 Insofar as Respondent is claiming that the strike would not be an unfair labor prac-
tice strike since neither the Union nor its members asserted Respondent had committed
an unfair labor practice prior to its strike but rested their action on what they char-
acterized as the unjust discharge of Olvera, the claim must be rejected. As I have stated
above in connection with the discharge of Olvera, the significant fact is not the Union's
characterization of events but Respondent's motivation The character of the strike
comes from its object The object here was to protest what I have found to be an un-
fair labor practice and therefore the strike becomes an unfair labor practice strike
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8 (a) (1) and (3) of the Act, I shall recommend below that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent has discriminatorily discharged Nick Olvera and
Lupe Jaime, I will recommend that Respondent be ordered to offer them immediate
and full reinstatement to the former or substantially equivalent positions. Having
further found the strike to have been an unfair labor practice strike and that the
strikers on or about May 14, 1964, unconditionally offered to return to work, I shall
recommend that Respondent be ordered to offer immediate and full reinstatement to
those strikers denied reinstatement at that time because they had been permanently
replaced, displacing, if necessary, any of the replacements.13 I shall further recom-
mend that Nick Olvera, Lupe Jaime, and each of the strikers to be offered reinstate-
ment be made whole by payment to each of an amount equal to wages he would have
earned from the dates of the discrimination against him to the dates of the offers of
reinstatement, together with interest thereon at the rate of 6 percent per annum, and
that the loss of pay and interest be computed in accordance with the formula and
method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing and Heating Company, 138 NLRB 716, to which the parties hereto
are expressly referred.14
The unfair labor practices committed by Respondent strike at the heart of the
rights guaranteed employees by Section 7 of the Act.15 The inference is warranted
that Respondent maintains an attitude of opposition to the purposes of the Act with
respect to the protection of employees in general. It will, accordingly, be recom-
mended that Respondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.16
Upon the basis of the foregoing findings of fact and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. Shattuck Denn Mining Corporation (Iron King Branch) is, and has been at
all material times, an employer within the meaning of Section 2(2) of the Act.
2. International Union of Mine, Mill and Smelter Workers, Local Union No. 942,
is, and has been at all material times, a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Nick Olvera and Lupe Jaime, as found above, Respondent has
engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
4. By striking on May 5, 1964, to protest the discharge of Nick Olvera the employ-
ees engaged in an unfair labor practice strike.
13 The following are the names of the strikers denied reinstatement upon their uncon-
ditional offer to return:
E. G. Gonzales Lupe Regalado Robert J Sandoval
Charles Reyes John Mendibles Tom Phillips
Albert Castaneda Tony Medina Bob Hernandez
Richard Olvera Antonio Olvera Don Knight
Juan Pozos Arthur Mendibles Eural Bake
Lupe Robles Ernest Leyva Phillip Crawford
William Kent
11 In the case of the strikers the backpay period would commence on or about May 14,
1964, the date they offered to return and were denied reinstatement because replaced
Jaime, although discharged on May 9, 1964, was a striker and remained on strike with
the others until May 14 when Respondent declined to put him back. Accordingly, his
backpay period would commence at that time. Olvera's unlawful dischaige has been
found to have been the cause of the strike and would not have occurred otherwise. Ac-
cordingly, his backpay should commence with the date of his discharge and continue
during the period of the strike and thereafter until offered reinstatement.
15 N.L R B. v Entivistle Mfg. Co., 120 F 2d 532 (C A 4)
16 May Department Stores, d/b/a Famous-Barr Company v N L R B , 326 U S 3 76;
Bethlehem Steel Company v. N.L.R.B., 120 F. 2d 641 (C A.D C ).
SHATTUCK DENN MINING CORPORATION, ETC . 1341
5. By refusing to reinstate unfair labor practice strikers unconditionally offering
to return to work because replacements had been hired Respondent engaged in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining , and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, as found above , Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that Respondent, Shattuck Denn
Mining Corporation (Iron King Branch), its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in International Union of
Mine, Mill and Smelter Workers, Local Union No. 942, or any other labor organiza-
tion, by discharging or in any other manner discriminating against any individual in
regard to his hire, tenure of employment, or any term or condition of employment
except as authorized in Section 8(a)(3) of the Act.
(b) In any other manner interefering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a condition
of employment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to Nick O]vera and Lupe Jaime immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their seniority
or other right and privileges, and make them whole for any loss of pay suffered by
reason of discrimination against them in the manner provided above in the section
entitled "The Remedy."
(b) Offer to all strikers denied reinstatement because permanently replaced imme-
diate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and make each
whole for any loss of pay suffered by reason of the discrimination against him in the
manner provided above in the section entitled "The Remedy."
(c) Preserve and upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to an analysis
of the backpay due.
(d) Post at its usual place of business, copies of the attached notice marked
"Appendix A." 17 Copies of said notice, to be furnished by the Regional Director
for Region 28 of the National Labor Relations Board, shall, after being signed by
Respondent, be posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 28, in writing, within 20 days from
the receipt by Respondent of a copy of this Decision, what steps Respondent has
taken to comply therewith.18
"'In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the additional event that the Board's order is en-
forced by a decree of a United States Court of Appeals, the words "a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"a Decision and Order."
'8In the event that this Recommended Order is adopted by the Board, paragraph 2(e)
thereof shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply therewith."
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that unless on or before 20 days from the date of its
receipt of this Trial Examiner 's Decision Respondent notify the Regional Director
that he will comply with the foregoing Recommended Order, the National Labor
Relations Board issue an order requiring Respondent to take the action aforesaid.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of, Inter-
national Union of Mine, Mill and Smelter Workers, Local Union No. 942,
or any other labor organization of our employees, by discharging or in any other
manner discriminating against any individual in regard to his hire, tenure of
employment, or any term or condition of employment, except as authorized in
Section 8 (a)(3) of the Act.
WE WILL offer Nick Olvera, Lupe Jaime, and all strikers denied reinstatement
because permanently replaced immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or other
right and privileges, and make each whole for any loss of earnings he may have
suffered as a result of the discrimination against him.
WE WILL NOT in any other manner restrain or coerce our employees in the
exercise of their right to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activities, except to the extent that such
rights may be affected by an agreement requiring membership in a labor orga-
nization as a condition of employment, as authorized in Section 8(a)(3) of the
Act.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of the above-named or as ty other labor organization.
SHATTUCK DENN MINING CORPORATION (IRON KING BRANCH)
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their rights to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 1015
Tijeras Street, NW., Albuquerque, New Mexico, Telephone No. 243-3536, if they
have any question concerning this notice or compliance with its provision.
Selma Trailer and Manufacturing Company of California, Inc.
and International Association of Machinists, AFL-CIO, Dis-
trict Lodge No. 87 , Local Lodge No. 653 . Case No. SO-CA-
3138. March 31, 1965
DECISION AND ORDER
On December 4, 1964, Trial Examiner David F. Doyle issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent, had engaged in and was engaging in certain unfair labor
151 NLRB No. 130.