, 192 (1940)

In the Matter of TiHE FEDERAL MINING AND SMELTING COMPANY, A CORPORATION and MULLAN LOCAL NO. 9, INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS Case Vo. C-930.-Decided February 5, 1940 Lead and Zinc Mining and Milling Industry-Interference, Restraint, and Coercion: distribution of anti-union handbills on respondent's property aided by supervisory official; blowing of respondent's whistle in conjunction with antiunion demonstration; participation by supervisory officials in parade celebrating defeat of sister unions at neighboring mines; charges of discriminatory speed up and lengthening of hours, dismissed-Discrimnination: charges of, dismissed.

Mr. Wm. A. Babcock, Jr., and Mr. Daniel Baker, for the Board.

Mr. Chas. W. Beale, of Wallace, Idaho, and Mr. R. Worth Vaughan, of New York City, for the respondent.

Mr. Willard Young Morris, of counsel to the Board.

DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Mullan Local No. 9, International Union of Mine, Mill and Smelter Workers, herein called Local No. 9, the National Labor Relations Board, herein called the Board, by Robert M. Gates, Acting Regional Director for the Nineteenth Region (Seattle, Washington) issued its complaint dated May 25, 1938, against The Federal Mining and Smelting Company, a corporation, Wallace, Idaho, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.

With respect to the unfair labor practices, the complaint, as amended,1 alleges, in substance: (1) that the respondent between August 25 and December 17, 1937, discriminatorily discharged nine named employees; (2) that the respondent discriminatorily gave less desirable employment to two named employees; (3) that the respondent disI The complaint was amended at the hearing on motion by the Board, and following the hearing by stipulation between the Board and the respondent.

192 criminatorily refused to give steady employment to another named employee; and (4) that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and Local No. 9. The respondent, in its answer duly filed and amended, denied that it had engaged in or was engaging in the unfair labor practices alleged.

Pursuant to notice, a hearing was held in Wallace, Idaho, from June 6 to 14, 1938, before Thomas S. Wilson, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties.

During the course of the hearing, the Trial Examiner made various rulings on motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed.

Thereafter, the Trial Examiner filed his Intermediate Report, dated September 17, 1938, in which he found that the respondent had committed unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, recommended that the respondent cease and desist from such unfair labor practices and take certain affirmative action remedial of their effect, and recommended that the complaint be dismissed as to Andrew Legall, alleged to have been discriminatorily refused steady employment. On October 15, 1938, the respondent filed exceptions to the Intermediate Report. Thereafter, the respondent filed its brief. Oral argument upon the exceptions to the Intermediate Report was waived by the parties. The Board has considered the respondent's exceptions to the Intermediate Report and its brief in support thereof, and, in so far as the exceptions are consistent with the findings, conclusions, and order set forth below, finds them to have merit.

Upon the entire record in the case, the Board makes the following:

FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Federal Mining and Smelting Company is a Delaware corporation having its principal place of business in New York City. It is engaged in the business of mining and concentrating lead and zinc ores in Idaho, Oklahoma, Kansas, and Missouri. The present controversy is confined to its employees working at the Morning Mine, which is located a short distance from Mullan, Idaho, in the Coeur d'Alene Mining District. The respondent there employs approximately 647 employees.

The ore from the Morning Mine is reduced by a flotation process at a mill, which is operated in conjunction with the mine, to lead and zinc concentrates, all of which are sold f. o. b. Morning Mine to the Anaconda Copper Mining Company and the American Smelting and Refining Company, to whose smelters in Montana the concentrates are shipped. In 1937 there were sold and shipped from the respondent's Morning Mine to smelters located in Montana, 32,756 tons pf lead concentrate and 35,301 tons of zinc concentrate.

During the same period the respondent purchased approximately $331,000 worth of raw materials and supplies for use in the Morning Mine, approximately 66 per cent of which were shipped to the Morning Mine from States other than Idaho.

2. THE LABOR ORGANIZATION INVOLVED Mullan Local No. 9, International Union of Mine, Mill and Smelter Workers, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the respondent at the Morning Mine.

3. THE UNFAIR LABOR PRACTICES A. Background Between 1933 and 1935, Local No. 9 organized a substantial number of the respondent's employees at the Morning Mine. A decline in its membership occurred in 1935, which continued until the latter part of 1936. Local No. 9 then began an organizational drive and by May 1937, succeeded in enrolling a, large majority of the respondent's employees. On May 6, 1937, Local No. 9 submitted to the respondent a proposed contract containing a clause providing for a closed shop. The respondent rejected the proposed contract and on May 13, submitted a counterproposal, in which it offered Local No.

   9 limited recognition as the representative of its membership. This proposal was not satisfactory, and Local No. 9 called a strike on May 14. The strike ended on June 9, 1937, on which date the respondent and Local No. 9 entered into a written contract for 1 year in which Local No. 9 was recognized as the exclusive representative of the respondent's employees. There was no attempt to operate the mine during the strike, the only work done being minimal care of the shafts. Following the strike the respondent put the strikers back to work as quickly as the condition of the mine safely permitted.

   195 B. Interference, restraint, and coercion In August 1937, a strike was in progress at the Sunshine Mining Company's properties located a few miles from the Morning Mine.

   The strike had been called by two locals other than Local No. 9 of the International Union of Mine, Mill and Smelter Workers. On Saturday, August 7, Al Hodgins, the respondent's chief electrician and a supervisory employee having the power to hire and discharge, gave handbills to some of the employees as they passed the 'lighthouse,' a place where the men get their lights, and told at least one of them to 'be there,' meaning thereby, to attend the demonstration announced by the handbills. The handbills announced that a demonstration against the striking labor organization would be held the following morning and called on workers from four different mines, including the Morning Mine, to attend the demonstration.2 The handbills further stated that the whistles would be 'tied down at all mines from 7 a. m. to 9 a. m. so all members 3 will appear on time.' The following morning the whistle of the Morning Mine blew for a period of a few minutes, although it was not customary for it to blow on a Sunday morning. During the course of the day a parade was held in celebration of breaking the strike at the Sunshine Mining Company properties. This parade went through Kellogg, Wallace, and Mullan, mining towns located in the Coeur d'Alene region.

   During the course of the parade certain participants tore down the street signs of the locals of the International Union of Mine, Mill and Smelter Workers in Kellogg and Wallace and were thwarted in their attempt to tear down the sign of Local No. 9 in Mullan only by the vigorous resistance offered by members of the last-named local.

   SThe handbills, in bold type, bore the following inscription:

   NOTICE The 356 Members from the Sunshine 400 From the Morning 450 From the Hecla 400 From the Bunker Hill Will Meet McGuire At the Sunshine Mine at 8: 00 A. M.

   SUNDAY MORNING August 8th The Men Will Form in Military FormationMcQuire (sic) and His Men In The Same Order THEN A VOTE WILL BE TAKEN The Whistles will be Tied Down At All Mines From 7 a. m. to 9 a. m., So All Members Will Appear On Time.

   If McGuire Does Not Appear the Strike Will Be Considered Lost.

   He Must Face Some 1500 Men.

   Leave Your Women and Firearms At Home 8 The significance of the word 'members' is not explained by the record.

   Among those participating in the so-called 'victory' parade were Earl Brasher, general mine foreman at the Morning Mine, and L. E.

   'Red' Fisher, one of Brasher's two assistant foremen. These two officials were seen by some of the respondent's employees to take part in the parade as it passed through Mullan.

   The respondent's general manager stated at the hearing that it was not the policy of the respondent to permit the distribution of handbills on its property such as...