Shenandoah-Dives Mining Co.

National Labor Relations Board - Board Decisions

May 20, 1944

56 N.L.R.B. 715 (N.L.R.B. 1944)

In the Matter of SHENANDOAH-DIVES MINING COMPANY and INTER-
NATIONAL UNION OF MINE , MILL & SMELTER WORKERS, 'LOCAL No. 26
AND SAN JUAN FEDERATION OF MINE, MILL AND SMELTER WORKERS,
PARTY TO THE CONTRACT
Vase No. C-1615
SUPPLEMENTAL AND AMENDED DECISION AND ORDER_
AND
RECOMMENDATION
May 00, 1944
On October 3, 1941, the National Labor Relations Board, herein
called the Board, issued its Decision and Order in this case,i,in which
it found that Shenandoah-Dives Mining Company, Silverton, Colo-
rado, herein- called the respondent, had engaged in and was engagiiig•
'in certain unfair labor practices affecting commerce, and ordered the
respondent to cease and desist therefrom and to-take certain affirmative
remedial action. More specifically, the Board found that the respond-
ent dominated and interfered with the formation and administration
of 'San Juan Federation of Mine, Mill and Smelter .Workers, herein
called the Federation, and contributed support to said organization,
within the meaning of Section 8,(2) of the Act; 2 the Board also found
that the respondent discriminated in regard to the hire and tenure and
terms and conditions of employment of the employees listed in Ap-
pendix B,` attached to the Decision and Order, within the meaning of
Section 8 (3) of the Act.3 To remedy these unfair labor practices,
the-Board directed the respondent to disestablish the Feder>tition and to,
reinstate the employees listed in Appendix B, with back' pay 4
35 N. L. R. B. 1153.
2 In passing upon the issue as to whether the respondent violated Section 8 ( 2) of the
Act, the Board found that the Federation did not represent a majority of the employees in
the appropriate unit at the time the respondent signed a contract recognizing the Federa-
tion as the exclusive bargaining representative and that, by execution of such contract,
among other ways, the respondent contributed illegal support to the Federation.
8 The Board dismissed an allegation that, the respondent refused to bargain with Silver-
ton Miners Union No 26, herein called the Union, affiliated with International Union of
Mme,-Mill & Smelter Workers, within the meaning of Section 8 (5) of the Act, and found
that the respondent had not engaged in unfair labor practices within the meaning of Sec-
tion 8 (3) of the Act with respect to seven other named persons, listed in Appendix A
attached to the Decision and Order . We adhere to these findings. ,
* After issuance of the Board ' s Decision 'and Order in this case , on November 5, 1941,
an,organization , calling itself Mine, Mill and Smelter Workers Local 22930, filed with the
56 N. L. R. B., No. 136.
715
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board thereafter petitioned the United States Circuit Court of
Appeals for the Tenth Circuit to enforce the Board's Order against
the respondent. At oral argument before the Court, on November 16,
1942, the judges thereof expressed doubt (1) as to the adequacy of the
record to enable the Board and the Court to determine whether the
Federation represented a majority of the employees in the appropriate
unit at the time the respondent recognized the Federation as exclusive
representative of such employees; and (2) as to whether the Board
would have found the Federation to be a company-dominated labor
organization had the Board treated the Federation as having been
designated by a majority of the employees when recognized as such
representative.5 . Thereafter, on January 21, 1943, upon the respond-
ent's application for leave to adduce additional evidence, the Court
remanded the case to the Board with directions to adduce evidence
upon the issue of whether the Federation represented a majority of the
employees in the appropriate unit at the time the respondent recog-
nized it as the exclusive representative of the employees, and to make
findings thereon.
Subsequently, by letter dated September 16, 1943, the Senior Judge
of the Court, the Honorable One L. Phillips, advised the Board with
respect to this case : ". . . it is quite agreeable to this court that the
Board reconsider the entire case and if it so desires, vacate its decision
and order. If you desire a formal order to this effect, please advise,
and I will have it entered."
On September 23, 1943, the Board notified all parties in writing that
the Board would vacate and set aside its decision and Order unless
sufficient cause to the contrary was made to appear; and, objections
thereto having been filed by the Union, on November 30, 1943, pursuant
to notice duly served, the Board heard oral argument upon the rule
to show cause. Counsel for the Board, the respondent, and the Union
appeared and participated in the oral argument .6
Board a petition to reopen the case for further hearing in which the petitioner recited that
it was formerly the Federation to which the American Federation of Labor had granted a
charter. No adequate basis for the application having been shown, the Board denied the
petition.
5In determining the Federation's status as representative, the Board had used as a
yardstick the respondent's pay roll for July 1-15, 1939, the period immediately preceding
the outbreak of. a strike which began on July 16. At the oral argument the judges ex-
pressed the view that certain persons who worked before or after that period but who were
not on the July 1-15 pay roll should have been included in the bargaining unit. The
judges also questioned the identity or non-identity of persons whose names , as they appear
in the record, are similar but not identical.
Thereafter, on or about January 17, 1944, upon motion filed by the Board, the Court
entered an order, nano pro tune as of September 16, 1943, permitting the Board "to recon-
sider the entire case and, if it so desires, modify or vacate and set aside its Decision and
Order herein ." On January 19, 1944, upon the respondent's objection , the Court vacated
its order of January 17, 1944. On January 27, 1944, the Board filed a , new motion asking
SHENANDOAH-DIVES MINING COMPANY
l
717
In order to avoid the necessity for a hearing for the purpose of ad-
ducing evidence bearing upon the matter of the representative status
of the Federation at the time the respondent recognized it as exclusive
bargaining representative, counsel for the Board, the respondent, and
the Union entered into a written stipulation of facts, waiving the is-
suance of an "order reopening hearing, hearing and notice thereof,
issuance of [an] Intermediate Re-port,or proposed findings of fact and
conclusions of law," and stipulating, inter alia, that there were 247
employees in the appropriate bargaining unit on September' 6, 1939,
of whom 127 were members of the Federation.7 The stipulation is
hereby approved and made part of the record herein as Board's Ex-
hibit 1 of this date.
- Pursuant to the remand by the United States Circuit Court of Ap-
peals for the Tenth Circuit, and upon consideration of the entire
record 'in the case, the Board hereby exercises its judgment on said
remanded issues and hereby makes the following :
SUPPLEMENTAL FINDINGS OF FACT
The question for us to determine is whether, in the light of the.
altered facts as reflected in said stipulation, the respondent has violated
the Act in its relations with the Federation and in its treatment of its
employees within the meaning of Section 8 (1) and (3) of the Act.
in July 1939, the Union, which had previously been designated as'
bargaining representative by a majority of the respondent's mine and
mill employees, called a strike when the parties failed to agree on terms
of a new contract." The strike resulted in the shut-down of the mine
and mill beginning on July 16, 1939, with consequent paralysis of the
economic life of the community, which was almost entirely dependent
for its existence upon the respondent. As the strike continued, a move-
ment developed to call off the strike, to oust the Union, and to form a
new organization, the Federation.
leave to reconsider the entire case' . On March 20 , 1944, the Court heard argument upon
the last-mentioned motion of-the Board Upon conclusion of the argument the Court
j orally directed that the Board make findings on the repanded issues and submit its recom-
mendations to the Court.
As recited in the stipulation , these figures do not give effect to the Board 's previous
finding that Albert Edwards was at the time in question a supervisory employee. The,
respondent contends that Edwards was not then a supervisory employee . The stipulation
does not purport to dispose of the question of Edwards ' supervisory status. If Edwards is
found to be a non -supervisory employee at the time in question , the unit would include 248
employees , of whom 128 were members of the Federation . However, as the figures indicate,
Edwards' status could not affect the Federation's majority . We therefore find it unneces-
sary to pass upon the question of Edwards' supervisory status as of September 6, 1939.
8 A previous contract had expired pursuant to its terms . Although entertaining "some
doubts," the Board was "not convinced of the respondent 's bad faith in' bargaining with
the Union" and therefore -found that the respondent had not refused to bargain collectively,
and that in its inception the strike was not caused by any unfair labor practice we adhere
to the Board 's previous findings that the respondent had not refused to , bargain collec-
tively within the meaning of Section 8 ( 5) of the Act and thiat the strike was an economic
one at the outset An impasse had resulted principally from differences over demands
for increase of wages and for a closed shop, and the strike ensued as a consequence.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The movement to oust the Union and to form a new organization
began about August 1, 1939, when Charles Scheer, an employee who was
opposed to the Union and to continuance of the strike, prepared with
the assistance of 2 other employees, a proposed constitution for the still
unformed Federation. About the same time, Mine Foreman William
Hughes caused to be printed at his own expense and delivered to Scheer,
200 membership cards for use of the Federation. Also, at about the
same time, General Manager Charles A. Chase permitted the use of
the respondent's hectograph for the printing of "A Striking Mucker's
Last Refrain," a doggerel which commented in ironic vein on the hard-
ships of the strikers and derided the Union and its strike effort, and
which was thereafter circulated in the community.
Later in August, a rumor spread in the community that an insurgent
group of union members would attempt to "break" the strike at the
regular union meeting on August 28. General Manager Chase favored
this movement. He testified that having heard that "insurrection
would be attempted" and believing that the mine was "dead" unless
"the men who sought to restore it succeeded," he hopefully drove past
the union hall while the meeting was in progress, but "seeing the
street quiet, I saw no sign of encouragement." Later that evening, a
"considerable crowd," including Mine Foreman Hughes, Mechanical
Foreman. Carl Bleich, and Shift Boss Albert Edwards, gathered out-
side the union meeting place.9 As the union members left the hall at
the close of the meeting, several of them were attacked and beaten by
the mob, and four union leaders were compelled by threats of violence
to themselves and their families to leave townl° The violence was
9 A contention of the respondent that Edwards was not an employee at the time of
the riot, hereinafter described, is without merit. Edwards was employed by the respondent
as a junior shift boss when the strike began on July 16. For a period thereafter the
respondent operated pumps to prevent flooding of thle mine. During this period Edwards
continued working at the mine and, so far as'appears , without change in supervisory status.
When the respondent ceased to operate the pumps about August 1, Edwards was "dis-
charged." Thereafter, he asked the respondent's mine superintendent for a recommendation
to help secure work elsewhere but it does not appear that Edwards worked elsewhere. He
was recalled to work upon resumption of mine operations in September 1939. Asked at
the hearing whether the respondent bad an understanding with Edwards to the effect that
he would be reemployed when the mine opened, General Manager Chase testified : "It
would be almost obvious that he wyuld be an available candidate for reemployment." The
fact that the record does not disclose that Edwa' ds was recalled to work as a supervisory
employee does not militate against the Board's previous finding that Edwards had simply
been laid off and that he retained his supervisory status at the time of the riot on
August 28 . The respondent ' s further claim that Edwards never was a supervisor is
also without merit. The respondent ' s mine superintendent characterized Edwards as "one
of the bosses at thre mine" ; and in listing supervisory employees of the company, the
respondent 's general manager included Edwards as a "Junior shift boss ." While the
record does not show the specific duties of a junior shift boss , the duties , of a senior shift
boss included assignment of miners to work places , issuance of instructions as to their
duties, and allocation of work partners and equipment . Generally , Edwards supervised
a group of employees working at a certain level of the mine. We find that Edwards was
a supervisory employee of the respondent on August 28, 1939, and that his conduct is
attributable to the respondent . Cf. footnote 7, supra.
10 Included among the threats of violence were threats of "lynching," "hanging," and
"tar and feathering." Among those who participated in the riot were business men who
had dealings with the respondent , and other merchants and citizens of the community.
SHENANDOAH-DIVES MINING COMPANY 719
precipitated and led by Frank "Corky" Scheer, brother of Charles
Scheer,li and was openly approved and sponsored, according to testi-
mony which we credit, by Mine Foreman Hughes, who stated-to a
bystander, at a time when Frank Scheer was engaged in physically
attacking a union adherent : "Boy, I sure picked a good one when I•
picked Corky Scheer. Look at him go. He is worth his weight
in gold." 12 . .
Immediately after the rioting and ouster of the union leaders, a
group composed almost entirely of union members entered the union
hall and purported to hold a "special" meeting. 'Among the approxi-
mately 113 persons present was Shift Boss Edwards, who was an
"honorary" dues-paying member of-the Union but not privileged to at-
tend union meetings or participate in union affairs because of his
supervisory status. Those at the meeting thereupon voted to with-
draw from the C. 1. O., to call off the strike, to "abandon" the Union,
to form a new union, and to transfer all the Union's property to, the
-new union. The meeting then adjourned.
A few minutes later, another meeting was held to form the new
union. "Anyone interested" was,invited to attend. The Federation,
was then formally' organized, admitting to membership everyone in
the county who was "concerned", and adopting the name and constitu-
tion which Charles Scheer had previously conceived and prepared 13
Scheer distributed the membership cards that Mine Foreman, Hughes
had contributed to the-undertaking in advance; Scheer was unani-
mously elected president, and other officers were selected 14 - The meet-
"At the time Fiank Scheer was not employed by the respondent He was first hired
as a nunei by the respondent in September 1939
= Hughes did not deny that he made the remark -
In September or October 1938, Superintendent Cook had summoned Leonard Talbot, a
member of the Union 's grie ance committee and,a trustee of that local , and had questioned
him concerning a report that Talbot had lodged aiith the Board a chaige that the respond-
ent had engaged in an unfair labor practice In the course of the conversation,' Cook
objected , accoidmg to his own testimony , "about [Talbot ' s] bringing up many trivial
things which in-my estimation were not worthy about being brought up before a'grievance
committee" and, according to Talbot , Cook "suggested that we should have a company
union . . that he had been in the management of a couple of. mines that had com-
pany unions and they worked a lot smoother and more satisfactorily to the company."
Cook further'testified that he told Talbot this was his first experience working in•a mine
where there was a union , that " the nearest we had to anything that could be called a union
with any of the large companies with which I had worked was usually a community league
which had no requirements for membership whatsoever except that they were employees
of the company" Cook admitted telling Talbot that "ice would get along without any
tiouble that way, but he testified that he told Talbot that he thought such a community
league would probably be illegal under the Wagner Act We credit Talbot' s testimony and
Cook's admissions and find that , by his statements , the respondent ' inteifered with, re-
strained , and coerced its employees in the exeicise of the rights guaranteed in Section 7
of the Act. -
14 Fenwick Sutherland , a bookkeeper employed by the respondent, took a prominent'role
in the meeting and was elected secretary of the Federation, but resigned the following day
presumably in belated recognition of inipropfiety in his holding office in the Federatiomin
view of his duties as a salaried employee in the respondent ' s office which required him to
sign time statements which were submitted by the respondent to the employees.
I
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing adjourned during the morning of August 29, after the Federation
had decided to open negotiations with the respondent.
On the following day, August 30, the Federation requested General
Manager Chase to meet with a negotiating committee. He consented.
Sometime between September 1 and 4, the Federation submitted to
Chase its membership list which he causedto be checked against either
the respondent's July 1-15 or its May 1939 pay roll. Chase testified
that "we believed it showed a, majority of the employees, former em-
ployees available." After several meetings between Chase and the
Federation committee an agreement was reached on September 5, and
a contract, recognizing the Federation as exclusive bargaining repre-
sentative, was signed on September 6, 1939.
On the same day, September 6, the respondent resumed operations
at the mine. The contract with the Federation was patterned after
the former agreement between the respondent and the Union and con-
tained no closed-shop provision. However, the respondent delegated
to the Federation authority to determine which employees were to
return to work. On September 6 the respondent posted a list of 21
men who were instructed to report back to work that. night. Similar
lists were posted on succeeding days, calling additional men back to
work. Cook, the respondent's mine superintendent, testified that, in
response to a request by him, the Federation furnished the respondent
with a list of men to start work, and that the first men recalled
were from this list. General Manager Chase admitted in his testi-
mony that he placed upon the Federation's negotiating committee the
"responsibility" for determining which men should be recalled; that
the negotiating committee asked him whether he thought "everybody"
should go back and he answered: "The responsibility is yours"; and
that he specifically asked the committee how they felt about 2 men
who had been active in the Union and who had not joined the Fed-
eration.15
On the same day that the plant opened, a union committee, which
included the four men the mob had forced to leave town on the night
of the rioting, returned to town to demand the return of union prop-
erty which had been seized by the Federation.. The committee first
went to the sheriff's office at the local court house, and then proceeded
with the sheriff and marshal to the union hall, where they saw Presi-
dent Scheer, who refused to surrender the property. While the com-
mittee was at the court house, Superintendent Cook, Foreman Hughes,
and Supervisor Mack Sarles each drove by the building in separate
11 Of the 21 men recalled to work on September 6, the first day of operations, 19 are
persons whose names appear on the Federation membership list for August 29 to September
6. Of the first 102 men recalled to work by the respondent, 70 were Federation members.
As of the time of recognition , slightly more than one-half of the approximately 247 em-
ployees in the unit had joined the Federation.
SHENANDOAH-DIVES' MINING COMPANY 721
automobiles, observing the union group. When the committee later
proceeded to the union hall, where a crowd had gathered, Hughes also
followed and appeared to take notes with pencil and paper. , When
the Union subsequently brought suit, on its.own behalf and on behalf
of its members, to recover its property, against the Federation in the
District Court of the State of Colorado, according to denied testimony
which we credit, Foreman Walter Gray told an employee, Edward
Talbot, that he had "better" sign a printed statement disclaiming any
interest in the action, "and get it over with." is
In October and December 1939, the respondent refused to grant the
requests of two of the strikers for letters of recommendation which
they desired to help them in securing other jobs. As to one of these,
Chase admitted in his testimony that his refusal to grant the recom-
mendation was based upon the fact that the employee, IC-nut Sveden-
borg, a member of the Union's bargaining committee, had "joined in
demands" of the Union for a wage increase, a concerted activity which
Chase declared reflected upon Svedenborg's "intelligence" in view of
"the deplorable grade of ore coming into the mill." Chase admitted
that Svedenborg except for his efforts to secure the wage increase,
had "done a great deal of useful work by_which^ we could speak fav-
orably" of him. As to the other striker Edmund Bronson, he was
advised by letter from Chase, dated December 8, 1939, that although
his work had always been satisfactorily performed, Bronson "seemed
to have maintained loyal devotion" to the Union "through a strike
based on demands" which Chase declared "could mean only the de=-
struction of, the Company,and the, community," that although no word
had reached Chase that Bronson was "especially active in urging the
strike, still, ... it seems you did go along," and that in the cir-
cumstances, Chase could not "reasonably recommend" him for his
',good" work "when I know that your thought may be that your new
employer ought not to be allowed to continue in business."
On November 24, 1939, the Union,'called off the strike. The next
day, a union committee advised General Manager-Chase of the action
taken and on behalf of the strikers handed him'a written request for
reinstatement 17 On December 7, 1939, the Union renewed the request
for reinstatement by mail, and listed the names of the persons, includ-
16 On October 7, 1939, the District Court granted a temporary injunction against the
Federation, but, on March 20, 1940, dismissed. the action because of the Union's failure
to amend its complaint to make it more definite and certain, as ordered by the Court On
appeal, the Supreme Court of Colorado reveised the District Court with directions to, enter
an order requiring , inter alia, the Federation to restore to the Union all its property.
P G. Cuddigan, et at v. The San Juan Federation of Mine, Mill and Smelter Woikels,
et at , 110 Colo 97, 130 P (2d) 923.
14 At the same time several union committeemen made verbal application_ for reinstate-
ment. Among Chase' s replies, rejecting the individual applications were: (1) awkward
and too much of a risk with the Company; (2) "have to consult [my] attorney" ; (3) "come
under [Superintendent] Cook's 'jurisdiction" , and '(4) "could not make any snap judgment
on it." The respondent made no reply to the Union's written request, of November 25
587784-45-vol. 56--47
r 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the employees listed in Appendix B, on whose behalf the applica-
tion was being made.18 Subsequently, many, of these persons also made
individual application, for recall to, their jobs 19 None of them had
,been recalled prior to the time of the hearing before the Trial Exam-
iner in May 1940, with two exceptions, and as to these 'two, the record
does not show whether they were reinstated to their former or equiva-
lent positions, with full seniority and 'other rights and privileges.20
Instead, the respondent retained 56 new employees whom it had hired
for the first time during the strike, and it hired 20 more new em-
ployees after the first application for reinstatement had, been made and
prior to the time of the hearing in May 1940.21
Upon substantially these findings, and the further finding that the
Federation did not represent a majority of the employees at the time,
of recognition, the Board previously concluded that the respondent
dominated and supported- the Federation, and discriminated against
the 78 strikers listed in Appendix B.
We adhere to the Board's previous finding that the respondent dis-
criminated against' the employees listed in Appendix B. The record
establishes the respondent's intention to discriminate' against these
employees because of their membership in the Union and participa-
tion in the strike.. The delegation.to the Federation of authority to
determine who should be recalled to work indicated such,.an inten-
tion.22 Moreover, after the Union had made a mass application for
^ The respondent did not reply to the Union's letter of December 7
19 Of these, Andv Sutyak was admittedly told by Managei (base that there was no job
for him because he had tried to "destroy" the Company When Sutyak protested that
he had nothing to destroy the respondent, Chase 'replied "No, Andy you didn't, but you
sure tried, your damndest " Chase added "You stick with th;e wrong people; you go
down there and make a bunch of lies and cone up here and want your job back with the
Company and ask for sympathy " Another, Roy Sutherland, testified without contradiction
that he requested reinstatement of his supervisor' and was told that "as far as" [the
supervisor] was "concerned " he was holding "a job open" for hun, but was referred to
Chase 'that during the conversation which'lie later had with Chase, Chase stated that
he had no "particular" objection to the employee and asked him "how [hel would be if
[he] went back to work"; when the employee replied that he was trying to stay "neutral,"
Chase remarked : "That means if the C 1 0 came back into power you would go, with
them." Chase concluded the interview with a promise to advise the applicant of Chase's
decision after he had consulted with the supervisor and had "thought it over" Suther-
land never heard from the respondent thereafter Chase admitted at the hearing that
hoe regarded employees who continued to be members of the Union and participated in
the strike after the formation of the Federation as working,toward destruction of the
respondent and the community However, there is neither evidence nor claim that any
of such employees engaged in violence or any other unlawful conduct.
20 One,, -Joe Kinterknecht, was not recalled until February 10, 1940; the other, Claude
Robinson, was not recalled until May 18, 1940 '
21 By November 1939, the respondent had on its pay roll 224 mine and mill employees
exclusive of office and supervisory employees Of these, 168 were persons who had worked
for the respondent at some time prior to the strike ,; and, as stated above, 56 were new
employees.
22 The contract between the respondent and the Federation did not contain any pro-
vision requiring membership of employees in the Federation and the respondent's delegation
of such authority was not made pursuant to any contract covered by the proviso to Section
8 (3) of the Act T''-1e view urged by the respondent that an employer may require clearance
SHENANDOAH-DIVES MINING COMPANY 723
reinstatement of the strikers, the respondent retained 56 strike-break-.
-ers, first hired during the strike, rather,than recall strikers, admit-
tedly competent workers, many of whom had long service records.
Furthermore, the` respondent revealed its purpose to discriminate in
statements made to individual union members who applied for rein-
statement without success., Thus, for example, Andy Sutyak was told
by General Manager Chase that his, union activity was regarded by
the respondent as' an attempt "to destroy- the Company." Another,
Roy Sutherland, was told by 'Chase in effect ' that Sutherland's ex-
pressed desire to stay "neutral" was objectionable as, being tanta-
mount to alliance' with the Union should it return to power. Chase
admitted at the hearing that he regarded employees who continued
to be members of the Union and participated in the strike after the
formation of the Federation as working toward, the. destruction of
the respondent and of the community. Besides,, as related above, the
respondent refused to give recommendations for employment else-
where to 2 employees because of their union activities. Finally, sa
far as the record shows, only 12 of the 32 persons hired by the respond-
ent between November -25, 1939, and April 30, 1940, had -previously
worked for the respondent ;,20 were new employees.23 ,
We find that, by the foregoing refusal to reinstate the striking em-
ployees listed in Appendix B, the respondent discriminated with' re-
gard to the hire and tenure and terms and conditions of employment
of those employees, thereby discouraging membership in the Union
and encouraging-membership in the Federation, and that the respond-
ent thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
In its previous decision the Board found not only that the respond-
ent .interfered with'the formation and administration of the Federa-
tion, but, in addition, that the respondent dolhinated and supported
the Federation in violation of Section 8 (2) of the Act. - For that rea-
son the'Board ordered that the respondent disestablish the Federation.
Upon reconsideration, in the light of the present record, we are now
of a different view. We are of the opinion that the respondent's, con-
duct-herein falls short of domination 'or support within the meaning
from a,labor organization having status as exclusive representative of his employees as a
condition of employment, even in the absence of a closed-shop contract, has been rejected
by the Board and the courts, and such conduct, in itself, has been held to be unlawful
assistance to such union. See National Labor Relations Board v Electric Vacuum Cleaner
C6 , 315 U S 685, rev'g 120 F. (2d) 611 (C C A 6), setting aside 18 N L R B' 591
28 There are 78 employees listed in Appendix. B Two of these have hei etofore been
reinstated by the respondent, but were included in the Boaid's Previous reinstatement
order because the record did' not show that they had been reinstated with full rights and
privileges Thus, the total number of new employees hired in the period from September
1939, when the mine resumed operations, to April 1940, Just prior to the hearing before
Trial. Examiner Earl' S. Bellman, namely 76, coincides with the number of strikers refused
work by the respondent
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8 (2) of the Act and that the respondent did not dominate
the Federation or otherwise engage in conduct violative of that por-
tion of the Act. We shall not, therefore, direct disestablishment of
the Federation. We find, however, that, under the circumstances dis-
closed here, and particularly by authorizing the printing on its hecto-
graph machine of "A Striking Mucker's Last Refrain"; Foreman
Hughes' ordering and paying for membership' cards subsequently
used by the Federation; the presence of management employees in '
the mob outside the union hall on August 28,,,1939 ; the statement of
Hughes to a bystander on that occasion, set forth above; the signing,
of an exclusive representation contract with the Federation on Sep-
tember 6 , 1939; 24 the delegation to the Federation of authority to
determine who should be recalled to-work; 25 General Manager Charles
Chase's refusal to give recommendations to Knut Svedenborg and Ed-
mund Bronson; the respondent's discrimination in regard to hire
and tenure of employment of the strikers listed in Appendix B; and
the threats and discrimination involved in these statements and acts
of the respondent, the respondent assisted the Federation and thereby
interfered with; restrained, and coerced its employees in the -exercise
of the right to self-organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi=
'ties for the purposes of collective bargaining, as guaranteed in Sec-
tion 7 of the Act 26 By such unlawful assistance, the respondent has
rendered it impossible for us to find that the action of the employees
in selecting the Federation to represent them reflected their genuine
24 As set forth above,'on the night of August 28'the piomoteis of the Federation assaulted
union members and made threats of serious bodily harm to them and their families. The
sheriff negotiated for the departure of union members who had bai rieaded themselves in
the union hall to escape punishment at the hands of the threatening mob, and escorted-
the union leaders out of town . It was in this context of violence and lawlessness, known
to the respondent , that the Federation recruited its membership Despite knowledge of
this fact , as well as the fact that the Union was claiming status W the majority repre-
sentative , the respondent relied solely upon the Federation ' s representation that it had
a majority , promptly recognized the Federation , and hastily entered into a contract with
it as the exclusive representative of the employees we regard the atmosphere in which
the Federation designations were obtained as tending to vitiate their validity , and view
the respondent 's unquestioning reliance on them, although it was aware of the circum-
stances under which they were obtained, as further evidence of its assistance to the Fed-
eration Cf N L R B v Dadoui ian Export Corp , 138 F . ( 2d) 891 (C. C A 2) ; N L R B.
v. Dahlstrom Metallic Dcor Co , 112 F (2d) 765 (C C A 2)
25 By delegating authority to hire to the Federation , the respondent armed the Federation
with a weapon which lent itself to use as an organizing device to secure additional members,
thus enhancing the power and prestige of -the Federation in the eyes of the general body
of employees and prospective employees while, so far as appears , the Federation did
not reject any applicant for work , contrary to a contention of the respondent that it did
not inquire as to the union affiliation of those it reemployed , the respondent refused to reem-
ploy union adherents who made application for work shortly after the resumption of mine
operations , subsequently refused ' to reinstate employees who' continued on `strike after the
mine had reopened , and refused to give union adherents recommendations for employment
elsewhere , as'hereinabove set forth - ^
Ru See Elastio Stop Nut,Corporation V National Labor Relations Board, 142 F (2d) 371
(C. C. A. 8).
SHENANDOAH-DIVES MINING COMPANY 725
and uncoerced desire. Because of the respondent's assistance to the
Federation, notwithstanding its numerical majority, it is presently
incapable of functioning as the genuinely independent, arms-length
bargaining representative contemplated by the Act. Accordingly, the
recognition which the respondent, extended to the Federation and the
contract which it made with the Federation constitute further aspects
of its unlawful interference with the rights guaranteed to employees-
in the Act.27 In order to insure to its employees the full and free
exercise of such rights without interference, restraint, or coercion, the
respondent must withdraw recognition from the Federation, or any
successor thereof; as the collective bargaining, representative of any
of its employees, and withhold such recognition unless and until this
Board in an appropriate proceeding certifies the Federation, or
,any successor thereof, as their representative; the respondent must
also cease giving effect, to the Federation's contract of September 6,
1939, and to any other contract it may have made with the Federation,
or any successor thereof, without prejudice, however, to the assertion
by the employees of any legal right thereby acquired. Moreover,
nothing in our Decision and Order or herein shall be interpreted to
authorize the respondent to vary those wage, hour, or other substantial.
features of its relations with its employees which may have been
established pursuant,to any agreement with the Federation or any
successor thereof.28 -
ORDER
Upon the basis of the'above supplemental findings of fact and of
the entire record in the case, and pursuant to Section 10 (c) of the Na-
tional Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Shenandoah-Dives Mining Com-
pany, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Recognizing San Juan Federation of Mine, Mill and Smelter
Workers, or any successor thereof, as the representative of any of its
employees for the purposes of collective' bargaining with respect to
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until such organiza-
27 We regard the fact that a part of the respondent 's unlawful conduct occurred after
the respondent had recognized th;e Federation to be without controlling significance. Not
even the establishment of a,collective bargaining agency and the execution, of=a,contract
with it justify conduct which interferes with employee rights to self-organization or collec-
tive bargaining N. L R. B . V. Electric Vacuum Cleaner Co ., 315 U S. 685 , 694-695;
N. L R. B V. Newark Morning Ledger Co, 120 F. (2d) 262 , 266, 267 ( C: C A: 3) cert.
denied 314 U. S 693 ; The Wallace Corporation v. N L. R . B. (C. C. A. 4), 141 F. (2d) 87;
Elastic Stop Nut Corporation v. National Labor Relations Board, 142 F. (2d) 371 ( C. C. A. 8).
'a Our previous Decision and Order in this proceeding shall remain in full force and
effect except as modified herein.
k
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion shall have been certified by the Board as the representative of
the employees; I I " ' --
(b) Giving effect to or performing its contract, dated September 6,
1939, with San Juan Federation of Mine, Mill and Smelter Workers
relating to rates of pay, wages, hours of employment, and other con-
ditions of employment, or any extension, renewal, modification, or
supplement thereof, or any'superseding contract with the Federation
or any successor thereof; -
(c) Discouraging membership in Silverton Miners Union No.' 26 of
the International Union of Mine, Mill & Smelter Workers, or any
other labor organization of its employees, or encouraging membership
in San Juan Federation of Mine, Mill and Smelter Workers, or any
other labor organization of its employees, by refusing to reinstate any .
of its employees, or in any other manner- discriminating in regard.
to hire or tenure of employment or any term or condition of
employment ;
(d) 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 organizatioDs, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
and protection , as guaranteed in Section 7 of the National Labor,
Relations`Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : '
(a) Withdraw and withhold recognition from San Juan Federation
of Mine, Mill and Smelter Workers, or any successor thereof, as the
representative of any of its employees for the purposes of collective
bargaining with respect to grievances , labor disputes , wages, rates of
pay, hours of employment , or other conditions of employment , unless
and until the Federation or its successor shall have been certified by the
-Board as the representative of the , employees; ' -
(b) Offer to the employees listed in Appendix B immediate and
full reinstatement to' their former or substantially equivalent posi-
tions, without prejudice to their seniority and -other - rights.'and
privileges , such offer , to be effected in the manner set forth in Section V
of the Board's Decision , entitled "The remedy," placing - those e'm-.
ployees for whom employment is not immediately available upon a
preferential list in the manner set forth in said section , and thereafter,
in said manner , offer them employment as it ' becomes available;
SHENANDOAH -DIVES MINING COMPANY 727
(c) Make whole the employees named in Appendix B for any losses
of pay they m5y have suffered by reason of the respondent's discrimi-
nation in regard to their hire, and tenure and conditions of employ-
ment, by payment to each of them, respectively, of a sum of money
equal to that which each would normally have eariied as wages during
the period from November 25, 1939, to the date of the offer of rein-
statement , less his net earnings , if any, during said period, had the re-
spondent not discriminated in regard to his hire and tenure and terms
and conditions of employment; -
(d) Post immediately in conspicuous places throughout it's mine and
mill and in the printing establishment of Lloyd Jones, in Silverton,
Colorado , and maintain for a period of, at least sixty ( 60) consecutive
days from the date of posting, notices to its employees stating : ( 1) that
the respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a); (b) (c ), and (d ) of this Order;,
(2) that the respondent will take the affirmative action set -forth in
paragraphs 2 (a), (b), and ( c) of this Order; ( 3) that the , respondent's
employees are free to become or remain :members of Silverton Miners
Union No. 26 of the International Union of Mine, Mill & Smelter
Workers, and the respondent will not discriminate against any em-
ployee because of membership or activity in that organization;
(e), Notify the Regional Director of the Seventeenth Region (Kan-
sas City, Missouri ) in writing within ten (10 ) days from the date of
this Supplemental and Amended Decision and Order what steps the
respondent has taken to comply herewith.
RECOMMENDATION
Upon the basis of the foregoing , the National Labor Relations Board
hereby respectfully recommends to the United States Circuit Court of
Appeals for the Tenth Circuit that the Board's Order, issued on
October 3', 1941, as modified herein, be enforced.
APPENDIX A
Victor Lovingood Nick Raskovitch • Chester Yates
Sam Maynes _ Charles Setterquist •
Pete Miskinis Michael Smith -
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Joe Aschenbrenner Levi Jaramillo Dave Purdy
John Aschenbrenner Levi Jeantet Steve Purdy,
James Bell Jack Kennedy Claude Robinson
W. R. Bodine Joe Kinterknecht Joe Romero '
Louis Bodo, Jr. William Loftus Charles Roney,
'Henry Boglino Donovan Long C. S. Rosenstock
Mike Borcich Curtis Lyons Ed Ross
Edmund Bronson D. L. McCluer, Sr.' Alfonza Roy,
C. N. Campton Tim McCluer Tappo Salmine
Victor Cassagranda Otis Mays M. J. Stefan .
Marion Everett Emil Millich Wilmer Stoddard
Arthur Freeland William Morgan Victor Strsky
Ernest Gallagher - Oscar Nelson Roy Sutherland
George Gallagher , Sr. Frank Cerniwey Andy Sutyak
Joe Giecek Gene Clay Knut Svedenborg
Anton Girodb Manuel Cordova Leonard Talbot
Allen Godfrey P. G. Cuddigan Charles Thomas
Delmer Godfrey Joe Dalpra Joseph Todeschi
Joe Grande Charles Dosher Harry Turner
C. L. Hamblin Elmer Dosher John Turner
Aaron Harper Wilfred Downtain Joseph Velardi
Joe Herrera John Drganc Gus Von Fintel
Cecil Higman ' Emery Earle William Walker
Orley Imes Jack Parnell John Weiss
Tom Jackson Tony Perez Norman Wells
Amos Jaramillo Roy Peters George Yates
I
I