The Frost Rubber Works

.In the Matter of F. S. FROST AND F. M.;NETZEL,.A ,PARTNERSHIP-DOING- BUSINESS AS THE FROST RUBBER WonIcs ,and, INDEPENDENT UNION°OF• OPERATING ENGINEERS Case No. C-1468.-Decided May 02, 1940 Rubber Goods Manufacturing Industry-Interference, Restraint, and Coercion: anti-union statements-Employer: responsibility of, for supervisory employee's anti-union statements-Discrimin atio?z: discharge for union affiliation and activity to avoid bargaining with the Union by destroying its majority-Rein- statement Ordered: discharged employee-Back Pay: awarded to employee discriminatorily discharged. Mr. Stephen M. Reynolds, for the Board. Mr. Ewart Harris, of Chicago, Ill., for the respondents. Mr. Edward S. Marsliinski, of Chicago, Ill., for the Union. Mr. Edwin L. Swope, of counsel to the Board. DECISION. AND ORDER STATEMENT OP THE CASE Upon .charges and amended charges -duly ,filed by :Independent Union of Operating Engineers, herein called the Union, the Na= tional Labor Relations Board,' hereili called' the Board, by G.` :L. Patterson, Regional Director for the Thirteenth Region (Chicago- Illinois) issued its complaint dated November 29, 1939, 'agaiiist'F. S. Frost and F. M. Netzel, herein called the respondents, doing busi- Hess as The Frost Rubber Works, alleging that the respondents had engaged in and were engaging ' in unfair labor practices afFectin commerce within the meaning of Section 8 (1) and-(3) and Section 2 (6) and (1) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondents i nd upon the Union. With respect to the unfair labor practices, the complaint alleged in substance (1) that on or about April 8, 1939, the respondents dis- charged and thereafter refused to reinstate Anthony J. Kasmir for 23 N. L. R. B., No. 115. 1071 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the- reason that he was a member of the Union and had engaged in concerted activities with another employee of the respondents for the purpose of collective bargaining and other mutual aid and pro- tection and for the additional reason that the respondents believed that they could evade their duty under the Act to bargain collectively with the Union by discharging one of the two union members among the total of two or three engineers employed by the respondents; and (2) that the respondents by discouraging and warning their em- ployees against engaging in union activities from on or about March 1, 1939, until the date the complaint was issued, have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. On December 7, 1939, the re- spondents filed an answer which was amended at the hearing, ad- mitting the allegations of the complaint concerning the nature and scope of their business but denying the material averments relating to the alleged unfair labor practices and alleging affirmatively that Kasmir had been discharged for cause. Pursuant'to notice, a hearing was held in Chicago, Illinois, on December 11, 1939, before Webster Powell, the Trial Examiner duly designated by the Board. The Board, the respondents, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on 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. On January 5, 1940, the Trial Examiner filed his Intermediate Report, a copy of which was duly served on all parties, in which he found that the respondents had engaged in and were engaging in, unfair labor practices within the meaning of Section 8 (1) and (3), and Section 2 (6) and (7) of the Act. He found that the respondents had discharged Anthony J. Kasmir because of his union affiliation and activities, and for the purpose of destroying the Union's majority and thereby avoiding the necessity of bargaining collectively with it. He recommended that the respondents cease and desist from their unfair labor practices and that they reinstate Kasmir to his former position with back pay. On February 3, 1940, the respondents filed` exceptions to the Intermediate Report, and requested opportunity for oral argument before the Board. Pursuant to notice, a hearing for the purpose of oral argument was set for February 20, 1940, at Washington, D. C. On February 16, 1940, however, the parties advised the Board that they desired to waive the oral argument which, accordingly, was canceled. THE FROST RUBBER WORKS 1073 On February 17, 1939, the respondents filed a brief in support of their exceptions to the Intermediate Report. The Board has consid- ered the respondents' exceptions to the Intermediate Report and their brief and, in so far as the exceptions are inconsistent with the find- ings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The respondents are co-partners having their principal office and place of business in Chicago, Illinois. They are engaged in the manu- facture and sale of mechanical and sponge rubber' goods, consisting principally of automobile lamp gaskets, washing machine rubber, church kneelers, and hoof pads for horses. During each of the first 11 months of 1939, the respondents used approximately 6 tons of rubber and 6 tons of other raw materials, consisting mainly of chemi- cals, such as zinc oxide, sulphur, whiting, and clays, in the manufac- ture of their products. All the rubber used by the respondents comes from outside the State of Illinois, being purchased f. o. b. New York. The value of all raw materials purchased in 1938 was approximately $33,000. During the first 11 months of 1939, the respondents shipped about 40 per cent of their products to points outside the State of Illinois. The total value of the sales made by the respondents during this period amounted to between $70,000 and $80,000. The respondents admit that their operations affect interstate com- merce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Independent Union of Operating Engineers is an unaffiliated labor organization admitting to membership operating engineers, appren- tice engineers, oilers, and firemen in the respondents' employ.' III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Frank Zelasko testified that in January 1939, when he was em= ployed by the respondents,2 he had a conversation with his foreman, Walter Zmuda,3 during which Zmuda told him that Frank M. Netzel, one of the respondents, would close down the plant "if any union 1 The record shows that prior to April 8, 1939. the Union's membership was limited to the operating engineers, but it does not show on what date the Union extended its jurisdic- tion to include the apprentice engineers, oilers, and firemen. i Zelasko left the respondents' employ on April 29. 1939. ' At the time of the hearing Zmuda was the respondents' assistant superintendent. 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members come in or have anything to do with the' factory." An- thony J. - Kasmir, an employee , testified that Zmuda told him in March, 1939, at which time the "C. I. 0." was attempting to organize the respondents' employees , that F. S. Frost , the other respondent, would close the- plant before he would permit any union members or activities in it, and also that, if Frost "found out that anybody had joined the union , he would fire them." Zmuda -denied at the hearing that he had discussed unions with any of the employees ex- cept "generally, like the C. I. 0. Union, because of the fact that they, stick us every year." Zmuda also denied '-that he -had ever discussed unions with Netzel and Frost or received any instructions from them on the subject ; and that he ever told Kasmir or Zelasko that, if they joined the Union, Frost would close down the plant. He admitted, however, that he had spoken to Kasmir and Zelasko "about unions on a couple of occasions ." Netzel denied that he and Frost ever discussed unions with Zmuda. Frost did not testify . Inasmuch as the Trial Examiner , who had an opportunity to observe the demeanor of the witnesses , credits Zelasko's and Kasmir's testimony, and since Zmuda not only admits discussing unions with Zelasko and Kasmir "on a couple of occasions," but also admits discussing the C. I. 0. generally -with the employees, we are satisfied and , find that Zmuda made the statements attributed to him by Zelasko and Kasmir. The respondents urge in their exceptions that there is no evidence that Zmuda's statements were made with their knowledge , consent, or approval . We find, however, that the respondents, having- clothed Zmuda with supervisory authority and power , are chargeable with responsibility for his above-described statements' We find that by Zmuda's above-described statements the respondents have interfered with, restrained , and coerced their employees in the exercise of the rights guaranteed them in Section 7 of the Act. B. The discharge of Anthony J. Kasmir Icasn' it entered the respondents' employ in February 1939 as stationary operating engineer and remained in that position until he was discharged on April 8, 1939. He testified that he was twice complimented on his work by Netzel in either late February or early March ; that on one of these occasions he noticed that the "dead plates" in-the boiler were warped, reported the fact to Netzel, who instructed • ". . . with respect to the act's of the supervisory foreman, the doctrine of respondeat superior, applies, and the petitioner (the employer) is responsible for the actions of the supervisory foreman, even though it had no actual participation therein." See National Labor Relations Board v Swift & Company, 106 P. (2d) 87, 1919 (C. C. A 10th). Also see National Labor Relations Board v. The A. S. Abell Company, 97 F. (2d ) 951 (C. C. A. 4th), enf'g as mod. Matter of The A. S Abell Company , a corporation and Tnternationai Printing and Pressmen's Union, Baltimore Branch Baltimore Web Pressmen's Union. No. 31, 5 N. L. R B. 644. THE FROST RUBBER WORKS 1075 him to repair them and, upon completion of the work, told him that he had done an excellent job; and that on the other occasion he ob- served that the rear end of the boiler was caved in and informed Netzel of that fact, who remarked that he was "glad" Kasmir dis- covered it, and stated that it "took" Kasmir "to find out just what was wrong with the boiler." Netzel's testimony is contradictory and evasive concerning these incidents. He denied complimenting Kasmir on his work, but admitted that the first repair job, discussed above, .was done. "right" by Kasmir, and then, on further examination, ad- mitted complimenting Kasmir "when he was right," but added "every- thing" he could "remember was done wrong." Netzel could not remember the incident relative to the defect in the rear end of the boiler. We credit Kasmir's testimony and find that Netzel compli- mented Kasmir on his work on those occasions. On March 14, 1939, at about 2 a. m., Netzel was summoned to the plant by the night watchman because steam was escaping from the boiler. Upon arriving at the plant Netzel discovered that the steam was escaping through the cover on the boiler and corrected the situa- tion by making the necessary repairs. Netzel attributed this trouble to Kasmir's defective work and later, that day instructed Zmuda to discharge Kasmir. • Ho«'ever, after discussing the` incident with Kasmir on the same day, Netzel revoked his dismissal order. The testimony is in sharp conflict as to whether Kasmir or Kostak,5 Kas= tnir's co-engineer, was responsible for the defective work and also as to the reason for Netzel's revocation of his order for Kasmir's dis- charge. The Trial Examiner did not resolve the specific conflict concerning Kasmir's responsibility for the defective work 5a but found that on March 14 Netzel decided to discharge him because of the boiler incident and agreed to give him another chance upon his plea that he was a new man. For reasons hereinafter stated we do not deem it necessary to resolve these conflicts" 6 Kostak left the respondents' employ in the latter part of March and did not testify. 66 The Trial Examiner further found that "Kasmir's.work was not entirely satisfactory up to March 14, 1939 ." Since. we are not resolving the conflicts involved , we make no finding in this r espect. 6 Kasmir testified , on the one hand , that Kostak had removed the cover to clean the boiler on March 13, and had advised Netzel at that time that the cover needed new gaskets, but was ordered by Netzel to use the old gaskets, and installed the cover with the old gas- kets ; that the defective work was due to the use of old gaskets ; that after Kostak placed the cover on the boiler Netzel told Kasmir the boiler was ready for operation, but in. structed him to economize on coal for which reason be did not start firing the boiler until about half an hour before he went home at the end of his shift at 11 p. in ; and that it was impossible to ascertain whether the cover was properly installed until the boiler was under pressure. Netzel testified , on the other hand, that he had not ordered anyone to use the old gaskets; that Kasmir, not Kostak, placed the cover on the boiler and was respon- gible for the defective work ; and that it was Kasmir 's duty to make sure that the cover was properly fitted before he went home. Netzel also asserted that he decided not to dis- charge Kasmir after Kasmir asked for another chance pleading that he was a "new man." however, this is denied by Kasmir who claims that he merely told Netzel that Kostak and not he was responsible for placing the cover on the boiler. 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Toward the end of March, the boiler feed pump required repairs. Kasmir, either alone or in conjunction with Kostak, worked on the required repairs but when the pump continued to function unsatisfac- torily, R. K. McAbee, another engineer, was assigned by Netzel to make the necessary repairs, which he did.7 Again, the testimony relating to the issue of Kasmir's responsibility for the defective work is in direct conflict but, as in the instance of the boiler cover, we do not deem it necessary to decide these conflicts in order to determine the ultimate issues in this case." Even if it is conceded arguendo that Kasmir was at fault in the performance of his duties in these instances, the record establishes, as we find below, that such faults were not the determina- tive factor in the respondents' decision to discharge Kasmir on April 8. Kasmir joined the Union on March 18, 1939. Within a few days after McAbee entered the respondents' employ he was asked by Netzel whether lie knew anything about the Union and McAbee replied that he did not. Thereafter, toward the end of March, W. B. Moss, a union organizer, entered the boiler room through a rear entrance and at- temnpted to persuade McAbee to join the Union, but Moss was unsuccess- ful in securing a definite answer from McAbee as to whether lie would join. Netzel observed Moss as he was leaving, but did not say anything to McAbee about Moss' presence in the boiler room.' On about April 1 Moss again entered the boiler room, accompanied by another union organizer, and they persuaded McAbee to join the Union 10 McAbee then signed an application for membership and paid part of the initia- tion fee. Kasmir was present at the time. Netzel observed the organ- 'c When Kostak resigned his position toward the end of March he was replaced by McAbee, a stationai y operating engineer with 25 years ' experience 8 Kasmir testified that Netrel had instructed Kostak to repair the pump, which required repa < lung, but that at the end of Kostak's shift on the day he received the instructions, Kostak had only packed one side of the pump and asked Kasmir to pack the other side, which he did ; that the next day Netzel remarked to Kasmir that the pump was running satl'facta'ily; asked Kasmir why he had not fixed it before , and upon being ierninded that Kostak, not Kasmir, had been instructed to make the rcpiirs , admitted that fact , inquired whether Iiostak had repaired the pump, and was told by Kasmir that Kasmir had repaired It; that a few day s later the pump began to function in an unsatisfactory manner because Iiostak had defectively packed his side of the pump; and that at Nelzcl's request McAbee then repaired the pump. Netzel testified , on the other hand , that lie instructed Kasmir originally to repair the pump but that after Kasmir spent 4 or 5 clays attempting to do it', finally assigned the Job to McAbee who fixed the pump McAbee testified that, when lie repaired the pump, lie found one side of it had been improperly packed and , upon talking to Kasmir about it. was told by Kasmir that Kostak bad packed that side The Trial Examiner made no finding on Kasmir 's responsibility for the failure of the pump to fun- tion on the ground that the evidence was "too vague and insufficient" to warrant it. 8 Kasmir was not in the plant at the time. His working hours were from 3 p. in. until 11 p in , while McAbee worked from 7 a in. until 3 p. an. 10 The respondents contend in their brief that this occurred on April 6 and point to the fact that McAbee's application for membership in the Union is dated April 6. however, both McAbee and Marshinski , the Union's president, explain that the application was origi- nally signed by McAbee on about April 1 In the plant when a payment of $1, borrowed by McAbee from Kasmir, was paid on account of the full fee of $10 ; and that the April 8 date on the application was inserted when Mc.\bee paid the balance of the application fee on that date. Moreover, the respondents' contention is refuted by Netzel 's own testimony that the incident' occurred 'about a week before Kasmir's discharge on April 8. THE FROST RUBBER WORKS 1077 izers as they were leaving the plant and asked Kasmir who they were. Kasmir replied that they were magazine salesmen?1 Netzel then told McAbee and Kasmir that visitors were not permitted in the boiler room.12 Early the next week, Netzel accused Kasmir of permitting strangers to enter the boiler room. Kasmir replied that the only per- sons who had entered the boiler room were employees of the respond- ents. Kasmir told Netzel, that one employee, Frank Zelasko, had entered the plant, after working hours, through the boiler room to obtain his overalls so that he could have them cleaned; but explained that Zelasko had entered the room without his knowledge, and that Kasinir did not see Zelasko until he was leaving 13 Zelasko was then summoned and, at Kasmir's. request, explained the circumstances to Netzel. Kasmir claims "that straightened up" the matter. Netzel asserted at the hearing, however, that when Zelasko was summoned to make his explanation he immediately discharged Zelasko "and the bird that was with him," for entering the plant after working hours; and that he discharged Kasmir on the following Saturday.14 Later during the hearing, however, it was revealed through the respondents' counsel that Zelasko's "slip" showed that he was not discharged until April 29, which was several weeks after the incident occurred. Zelasko testified that he believed his discharge on April 29 was for a reason other than entering the plant on March 26. Zelasko also stated that the man, who was with him on the night Zelasko entered the plant, was ,one of his friends and not an employee of the respondents, and that his friend did not enter the plant but waited outside in an automobile. Since Netzel's testimony stands refuted in part by the respondents' own records, and since the respondents made no effort to substantiate that part of Netzel's testimony which Zelasko's testimony contradicts, by producing their records to prove that Zelasko's companion was dis- charged, we are unable to place any credence in Netzel's testimony con- cerning the entire incident. Accordingly, we accept Zelasko's and Kasmir's testimony as representing the actual facts. On April 7, 1939, the Union sent a letter to the respondents advising them that the Union represented a majority of the respondents' oper- ating engineers and requesting a bargaining conference. When Netzel "The union organizers had advised Kasmir and McAbee to tell the respondents that the organizers were magazine salesmen in case the respondents observed them in the plant and inquired as to their identity. 'a Netzel claims that all engineers were instructed by the respondents upon entering their employment not to permit anyone in the boiler room Kasmir and McAbee testified that they received no such instructions when they were hired ; that no rule to that effect vas posted in the plant; and that other employees often entered the boiler room Moreover, Netzel had made no objection to Moss ' earlier visit to the boiler room although he was aware of it We believe Kasmir's and McAbee' s testimony and find that they received no such instructions before the union organizers entered the boiler room. = Zelasko had entered the plant after working hours on March 26 Kasmir was discharged on Saturday , April 8, although the respondents ' pay-roll period ended on Thuisday and the employees were paid on Friday. 283034-41-N of 23-69 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received the letter on April 8, he immediately approached McAbee and asked him if he "knew anything about" the Union. McAbee replied that he did not and that he believed that one of the engineers, formerly employed by the respondents, had informed the Union that McAbee was employed by the respondents and had given the Union information concerning his working conditions at the respondents' plant. Netzel then told McAbee that the engineer on the second shift, who was Kasmir, was the informant.15 Later the same day Netzel sent a letter to Kasmir which reads as follows : We are enclosing herewith our check No. 9429 in the amount of $5.94 covering services rendered in full to date. This will advise you that we have found out that you have had visitors at the plant after working hours, and inasmuch as we do not allow this practice your services are no longer required. Kasmir reported for work on the 3 p. in. shift and finished his work that day without knowledge of the fact that he was discharged.16 On April 12 Edward S. Marshinski, president of the Union, called at the plant, asked Netzel about Kasmir's discharge, and told him that he desired to bargain with the respondents on behalf of their 2 engineers. During the conference Netzel referred to the Union as "an outlaw" organization and refused to bargain with it, on the ground that it did not represent a majority of the respondents' engineers due to Kasmir's discharge. Netzel claims that on that occasion he did not attribute the Union's asserted loss of majority to Kasmir's discharge but stated that he and his partner, Frost, were engineers and hence were entitled to be included in the unit for the determination of representatives. We do not believe his testimony on that score and find that Marshinski's testimony is accurate. During the April 12th conference, Netzel, agreed to .' a--C range a meeting for the Union's representatives with Frost, and to advise the Union of the arrangements. A few days later, having received no word from Netzel, the Union sent a registered letter to Frost asking for an appointment. Frost refused to receive the letter. 16 McAbee testified that his denial of knowledge of the Union in response to Netzel's inquiry was made on April 8, but that the balance of the conversation might have occurred on either Apiil 8 or April 10. Netzel, however, placed the entire conversation on April 8 and we find that it occuued on that date Netzel testified that after McAbee denied hav- ing any knowledge of the Union, McAbee merely remarked that it was funny how . . the [employment ] agency , that sent" him to the respondents "seemed to know all about what" he had "done in the past " In view of the fact that the Trial Examiner, who had an opportunity to observe the demeanor of the witnesses , credited McAbee's testimony, we have found above that the conversation was in accord with McAbee's version. 1s Netzel claimed at the hearing that he discharged Kasmir by letter since it was his usual practice to leave the plant at 2 p . m. on Saturdays and Kasmir did not report for work until 3 p in , and also because he desired Kasmir to work out his full shift on April 8. THE FROST RUBBER WORKS 1079 Nevertheless, on April 16 Marshinski and two other union representa- tives called at the plant and saw Netzel who flatly refused to bargain with them. Upon the record, we are of the opinion that the respondents dis- charged Kasmir because of his union membership and activity, and for the purpose of destroying the Union's majority as alleged in the complaint. The respondents had manifested their hostility to the unionization of their engineers through Zmuda's anti-union state- ments to the employees, and their determination not to deal with the Union is reflected in their conduct following Kasmir's discharge on April 8. Upon receipt of the Union's letter on April 8 requesting collective bargaining, Netzel immediately questioned McAbee to learn his status with respect to the Union and in that conversation revealed his knowledge or belief that Kasmir had given the Union information concerning McAbee 17 Kasmir's discharge followed on the same day, Saturday, although the respondents' regular pay day was on Friday. This chain of events, considered in conjunction with the respondents' opposition to the organization of their engineers and patent desire to avoid collective bargaining with the Union on their behalf, neces- sarily lead to the conclusion that the respondents discharged Kasmir on April 8 because of his union membership and activity in further- ance of their desire to eliminate the necessity for collective bargaining by the destruction of, the Union's majority through the elimination of one of the two engineers in their employ. Other considerations which we shall discuss in connection with the respondents' contentions confirm our conclusion. While the only reason for Kasmir's discharge assigned by Netzel in his letter of April 8 was an asserted violation of the respondents' rules in having visitors in the plant after working hours, in their answer, at the hear- ing, and in their brief the respondents assigned two additional rea- sons for the discharge, namely, a lack of knowledge of engineering 17 The respondents urged that McAbee denied to Netzel on that occasion that be knew anything about the Union and that, hence , the respondents were without knowledge of the fact that both their engineers were members of the Union We see no merit in this con- tention In our view it is immaterial whether or not Netzel believed McAbee 's denial. While we are satisfied that he did not believe it or was at least doubtful of it since he had already received the Union's representation concerning a majority and had immediately sought to verify it, even if he did believe it, the elimination of Kasmir was a logical pre- caution, under the circumstances , against the necessity for bargaining. Moreover, as we have found, Netzel indicated in his conversation with McAbee that Kasmir was the Union's informant and beyond that Kasmir was more easily replaceable than McAbee , who was more experienced in the work than Kasmir The respondents further contend that in dis- charging Kasmir, Netzel could not have been motivated by a desire to destroy the Union's majority because he believed that the Union "could not obtain a majority, no matter what happened to McAbee and Kasmir, because, that while only two engineers were employed, they were always balancrd by th ' two partners of respondents , who themselves were engi- neers " We are not persuaded by that contention since the partners could not reasonably have been unaware of the impropriety of their inclusion in a bargaining unit with their employees for the purpose of determining those employees' representative for the purposes of collective bargaining with the respondents 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and inefficiency. We are not persuaded by any of these contentions, the last two of which appear to us as afterthoughts.-S We have found that the respondents' alleged rule against visitors in the plant was not made known to either Kasmir or McAbee by the respondents prior to about April 1, and that the only person Who had visited the plant after working hours was Zelasko, who had entered the plant on March 26, without Kasmir's knowledge and not for the purpose of visiting Kasmir, all of which was made known to the respondents by Zelasko early in the week of April S. Furthermore, there is no show- ing that Kasmir had any visitors in the plant after about April 1, when he learned of the respondents' rule. With respect to Kasmir's technical knowledge, the record shows that Kasmir was duly licensed by the City of Chicago to serve as an operating engineer and had, prior to his employment with the re- spondents, engaged in that general type of work for several years. As to Kasmir's efficiency, we have found above that Kasmir was twice complimented by Netzel for the performance of his duties during the period of his employment. However, even assuming that Kasmir was inefficient or that the respondents believed him to be inefficient, we are of the opinion for the reasons heretofore stated that neither the degree of Kasmir's efficiency nor the alleged breach of rules were operative causes for his discharge on April 8.19 Upon all the evidence we are satisfied and find that the respond- ents discharged Kasmir on April 8 because of his union membership and activities in order to avoid bargaining with the Union by destroying its majority.20 We find that the respondents discharged Anthony J. Kasmir on April 8, 1939, because of his union membership and activity, thereby discouraging membership in the Union, and interfering with, re- 's Netzel explains the omission of the last two reasons from the April 8 letter on the ground that he considered one reason enough to assign to Kasmir for his discharge 'B We have also taken into consideration the fact that Netzel contemplated Kasmir's dis- charge on March 14, 1939, for reasons unrelated to his union activities . However, what- ever may have induced Netzel to refrain from discharging him at that time, the fact re- mains that he was not discharged and there is no persuasive showing upon the basis of all the facts that Netzel 's asserted dissatisfaction with Kasmir 's work induced his discharge on April S. YOThe respondents state in their brief that "it might well be that the receipt of the [Union's] letter was the last straw to the very unsatisfactory relations between Kasmir and the, respondent." Even assuming, contrary to our finding, that Kasmir's union mem- bership and activity was merely one of a number of cumulative causes for his discharge, as the respondents argue, nevertheless , since his union membership and activity were defi- nite factors which the respondents considered when they determined to discharge him, the respondents committed an unfair labor practice within the meaning of Section 8 (3) of the Act. See Matter of The Kelly-Springfield Tire Company and United Rubber Workers of America Local No. 26, etc, 6 N. L. R. B. 325, enf'd in Kelly-Springfield Tire Company v. N L R. B, 97 F (2d) 1007 (C. C. A 4) ; also see Matter of The Louisville Refining Com- pany and International Association, Oil Field, Gas Well and Refining Workers of America, 4 N L R . B. 844, enf'd as mod. In N. L. R. B. v. Louisville Refining Company, 102 F. (2d) 678 (C. C. A. 6 ), cert, denied 60 9 Ct. 81. THE FROST RUBBER WORKS 1081 straining, and coercing their employees in the exercise of rights guar- anteed by Section 7 of the Act. Since his discharge Kasmir has been able to obtain temporary em- ployment and has earned about $445. At the time of the hearing he was temporarily employed as a mechanic. He desires reinstatement to his former position with the respondents as an operating engineer. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondents set forth in Section III, above, occurring in connection with the operations of the re- spondents described in Section I above, have a close, 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 the respondents have engaged in certain unfair labor practices, we shall order them to cease and desist from engaging therein. Moreover, we shall order the respondents to take certain affirmative action which we deem necessary to effectuate the policies of the Act. Since we have found that Anthony J. Kasmir was dish criminatorily discharged, we shall order the respondents to offer him reinstatement without prejudice to his seniority and other rights and privileges. We shall further order the respondents to make him whole for any loss of pay he has suffered by reason of his discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 21 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Independent Union of Operating Engineers, an unaffiliated organ- ization, is a labor organization within the meaning of Section 2 (5) of the Act. 21By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N L. It. B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects are not considered as earnings, but as provided below in the Order, shall be deducted from the sum due the employee and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work-relief projects. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire and tenure of employment of Anthony J. Kasmir, thereby discouraging membership in the Union, the respondents have engaged in and are engaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. ORDER Upon the -basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondents, F. S. Frost and F. M. Netzel, a partnership doing business as The Frost Rubber Works, and their officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in any labor organization of their employees by discharging or refusing to reinstate any of their em- ployees or in any manner discriminating in regard to their hire and tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Anthony J. Kasmir immediate and full reinstatement to the position which he formerly held with the respondents on April 8, 1939, without prejudice to his seniority and other rights and privileges; (b) Make whole Anthony J. Kasmir for any loss of pay he may have suffered by reason of the respondents' discrimination in regard to the tenure of his employment by payment to him of a sum of money equal to that which he would normally have earned as wages during the period from April 8, 1939, the date of his discharge, to the date of such offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due him, monies received by him during the said period for work per- formed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate THE FROST RUBBER WORKS 1083 fiscal agency of the Federal, State, county, municipal, or other gov- ernment or governments which supplied the funds for said work- relief projects; (c) Post immediately in conspicuous places in their plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating: (1) that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondents will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondents' employees are free to become or remain members of the Independent Union of Operating Engineers and the respondents will not discriminate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply therewith.