Algoma Net Co.

In the Matter of ALGOMA NET COMPANY and AMERICAN FEDERATION ` OF LABOR Case No. C-1490.-Decided November 23, 1940 Jurisdiction : net manufacturing industry. Unfair Labor Practices In General: responsibility of employer for acts of supervisor having authority only to recommend hiring and discharging of employees. Interference, Restraint, and Coercion: anti-union statements ; threats of dis- crimination ; interrogation about union activities. Discrimination: discharging and refusing to reinstate employees and locking out an entire group of employees to discourage union activities. Remedial Orders : reinstatement and back pay. Period from date of employee's misconduct in assaulting another employee to date he was reinstated excluded in computing back pay. Mr. Morris L. Forer, for the Board. Minahan d Bassett, by Mr. Robert C. Bassett, of Green Bay, Wis., for the respondent. Mr. Charles Heymanns, of Milwaukee, Wis., for the Union. Mr. Edward Scheunemann, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twelfth Region (Milwaukee, Wisconsin), issued its complaint, dated May, 26, 1939, against Algoma Net Company, Algoma, Wiscon- sin, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing thereon were duly served upon the respondent and the Union. The complaint alleged, in substance, that the respondent (1) on or about February 6, 1939, terminated the employment of Gerald Kaus, 28 N. L. R. B., No. 18. _ 64 '-ALGOMA NET COMPANY 65 Manuel Ferron, and Louis Trainor and thereafter refused to reemploy Ferron or Trainor because of their union membership and activity ; (2) on February 13, 1939, reinstated Kaus, and on February 21, 1939, again terminated his employment and thereafter refused to reem- ploy him because of his union membership and activity; (3) from February 21 to February 27, 1939, locked out its employees in one of its plants known as Plant "A" to discourage membership in the Union; (4) persuaded and warned its employees not to become or remain members of the Union; and (5) castigated, derided, insulted, and inveighed against labor organizations and particularly the Union. On June 2, 1939, the respondent filed its answer to the complaint in which it (1) denied that the Board had jurisdiction over the pro- ceeding; (2) denied that it had engaged in the unfair labor practices alleged in the complaint; and (3) moved to strike certain paragraphs of the complaint on the grounds that said paragraphs stated no facts or were at' variance with the allegations in the charge. The Trial Examiner denied the motion and his ruling is hereby affirmed. On the same day the respondent filed a motion requesting that the hear- ing be continued from June 6 to June 19, 1939, and the Regional Director issued a ruling on the motion denying the continuance. Pursuant to notice, a hearing was held from June 5 to June 9, 1939, inclusive, before Joseph F. Keirnan, the Trial Examiner duly des- ignated by the Board. The Board and the respondent, represented by counsel, and the Union by one of its officials, participated in the hearing. On February 8, 1940, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties. He found that the respondent had engaged, in and was engaging in unfair labor practices affecting commerce within the -meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from such violations, and rein- state with back pay the three employees `discriminatorily discharged. On February 29, 1940, the respondent requested, and the Board granted; an extension of time until March 15, 1940, in which the par ties could file exceptions to the Intermediate Report, and until March 25, 1940, in which the parties could file briefs. On March 15, 1940, the respondent filed exceptions to the Inter-, mediate Report. On March 20, 1940, the respondent filed a motion for leave to take additional testimony. On April 3, 1940, the Board by letter informed the respondent that it would request the Regional Attorney for the Twelfth Region to prepare a stipulation in coopera- tion with the respondent 'incorporating in the record the additional testimony sought. to be adduced. On April 5, 1940, the respondent filed a 'br`ief with the Board. On April 22, 1940, the respondent 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed a second application for leave to take additional testimony-., On July 23, 1940, the Board issued an order in which it granted the respondent's applications and directed a further hearing to take additional testimony. Pursuant to notice, a further hearing was held in Milwaukee, Wis- consin, on August 7, 1940, before Frederick P. Mett, the Trial Exam- iner duly-designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing: Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties 'at both hearings. During the course of the hearings the Trial, Examiners made a number of rulings on motions and on objec- tions to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 15, 1940, the Board issued an Order directing that no Intermediate Report be issued in the further hearing, that proposed findings of fact, proposed conclusions of law, and proposed order be issued, and that the parties should have 20 days thereafter in which to file exceptions and request oral argument, and 30 days in which to file a brief. On October 1, 1940, the Board issued and duly served upon the parties its Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. None of the parties has filed excep- tions or briefs or requested oral argument. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE RESPONDENT AND ITS BUSINESS Algoma Net Company, a Wisconsin corporation with its principal office and place of business in Algoma, Wisconsin, is engaged in the manufacture and sale of fly nets, hammocks, baby swings, com- bination covers, and nursery products. The respondent employs approximately 150 persons. During the year ending July 31, 1938, the respondent purchased raw materials valued at approximately $140,000, and it obtained approximately 90 percent in value of such materials outside the State of Wisconsin. During the ' same period the respondent sold finished products valued at approximately $282,000, and it shipped approximately 90 per cent in value of such materials to States other than Wisconsin. II. THI ORGANIZATION INVOLVED American Federation , of Labor is a labor organization admitting to membership employees of the respondent. ALGOMA NET COMPANY III. THE UNFAIR LABOR PRACTICES 67 A. Interference, restraint, and coercion; the discriinine tory dis- charges; the lock-out Early in February 1939 Gerald Maus, an employee in the beaming department, called a meeting of the respondent's employees for February 4 at '3 p. in. in the union hall in Algoma for the purpose of organizing the respondent's plant. He advertised the meeting by talking with other employees in the plant and on the streets. ,On February 4, 1939, Louis Trainor, an employee in the webbing department, in order to attend the meeting asked Harry Fisher, foreman of the hammock department, for permission to leave work early. Fisher granted permission upon Trainor's promise that he would "make up" the lost time. Prior to the meeting, Fisher told Manual Ferron, an employee in the cord department, that "anybody that goes to that meeting or signs up to join the union is fired." I Ferron went to the meeting hall after work, but apparently arrived after the meeting was over. When Trainor returned to the plant after the meeting, Fisher asked him how many persons had attended the meeting and stated "it will be too bad Monday'for some fellows." Fisher also told Reuben Hettiger, another employee, that E. W. Anderegg, president of the respondent, would be "angry at the union activities" when he returned to Algoma, and that "the fellows was liable to be discharged." On the evening of February 4, 1939, Fisher told Fred Wierschke, his neighbor, that "some- of the boys had a meeting and that all of those that had a meeting will not get back into the plant on Monday morning." 2 Louis Trainor, Jr., Trainor's son, testified that shortly after the meeting, J. C. Anderegg came into Heinies' Tavern, where Trainor, Jr., was employed, and stated to him "Your dad is another one of those guys, he doesn't care if he works or not, otherwise he wouldn't go to these union meetings and listen to all that crap." Anderegg denied that he made the above statement. Trainor, Jr's testimony is 1 Fisher does not have power to hire and discharge which is exercised only by E. W. Anderegg, president, and J. C. Anderegg, vice ,president, of the respondent. Fisher does have power to recommend hiring and discharging , and testified that his recommendations were usually followed. We find that he is a supervisory employee and that under the cir- cumstances of this case his statements are binding upon the respondent. Int. Ass'n of Machinists, Toot and Die Makers Lodge No 35, et at v N. L . R B, 311 U S 72 , aft g 110 F (2d) 29 ( C. C.A. D. C.) enf'g Matter of The Serrick Corp and Int. Union, United Auto- mobile Workers of America, Local No 459, 8 N L.,R. B. 621. 2 Fisher admitted that he opposed unions and that for 2 years he stated the opinion to anyone who cared to argue with him , that "anybody that wanted to go and pay $1 a month to a racket was a pretty poor scrub." He denied, however, that he made the statements set out in the text. In view of the mutually corroborative testimony of Ferron , Trainor, Hettiger,•,and; wierschke, Fisher's afore-mentioned admissions , ,the findings of the Trial Examiner who commented that "the attitude of the witnesses , B. , W. Anderegg, J. C. Anderegg, and Foreman Fisher bristled with prejudice and partisan interests ," and the other circumstances in this case , we do not credit Fisher 's denial. 413597-42-vol 28-6 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corroborated in part by that of one Gullett who was also in the tavern at the time. We find, as did the Trial Examiner, that J. C. Anderegg in substance made the foregoing statement. On Monday, February 6, Kaus, Ferron, and Trainor, who had joined the Union at the meeting on February 4 and who had been appointed at the meeting to solicit membership for the Union, were told by the foremen of their respective departments that they were being laid off for a few days. On the day of the lay-offs, J. C. Anderegg distributed copies of a notice which he had composed and which had been posted in the plant since 'January 1939 to each of the employees. The notice read as follows : What hurts the boss hurts you. Guide yourselves accordingly. Don't make the same mistakes others made. Certain laws and certain regulations lead to dishonesty and hatredness; and these very same laws and regulations are taking away American liberties which are your 'liberties. He testified that the notice was not intended to refer to unions, but was intended to advise his employees concerning national, State, and local elections, none of which were pending at the time. He explained the distribution of the notice immediately following the union meeting and at the time Kaus, Ferron, and Trainor were laid off as "just coin- cidence."' The respondent also introduced evidence to show that E. W. Anderegg and J. C. Anderegg customarily expressed their opinions on social problems by writing notices which were posted in the plant and sent to the newspapers. On no other occasion, however, were copies thereof distributed to the employees. We conclude, as did the Trial Examiner, that the respondent, by pointedly calling the afore- mentioned notice to the attention of the employees immediately fol-, lowing .the union meeting, intended thereby to warn its employees that the respondent did not approve of their attempt to organize the Union.39 The distribution of copies of this notice on the day of the lay-offs also sheds light on the respondent's reason for making them. Trainor testified, and we find,' that shortly after, the lay-off he met J. C. Anderegg on the street, and that in answer to Trainor's question whether he' had been laid off because he attended the meeting, Anderegg replied "not exactly." 4 I Cf' Int Ass'n of Machinists, Tool and 'Die Makers Lodge No. 85, et al. v. N. L. R. B., 311 U. S 72, aff'g 110'F (2d) 29 (C 'C A. D C ), enf'g Matter of The Serrick Corp and Int.' Union, United Auctomobile 'Workers of America, Local No. 459, 8 N. L. R. B. 621. 4,J C. Anderegg admitted ,a conversation with Trainor on this occasion, but testied that Trainor told-him "you don't have to think I had anything to do with unions or anything," and that he replied , 'Louis , that is none of my business . That is not the reason you were laid off. You will be called back in a few days just as 'soon as we find 'work for you." In view "of the findings of the' Trial Examiner and the respondent's hostility to the unioniza- tion of its employees, we do not credit J. C. Anderegg 's version of the conversation. ALGOMA NET COMPANY 69 Ferron and Trainor had not been reinstated at the time -of the hear- ing. Kaus was reinstated on February 13, 1939, and discharged on February 21 under circumstances which we shall hereafter discuss.. ,On February 21 E. W. Anderegg reported to the Wisconsin Unem- ployment Compensation Department that Kaus and Trainor had been discharged during the week ending February 4, and Ferron during the week ending February 11. The respondent contends that it laid off Kaus, Ferron, and Trainor ,on- February 6 because an accumulation of surplus stock in the beamer and cord department made necessary temporary adjustments in the working force. The respondent introduced evidence to show that there was a large stock of material on hand in the cord department in which Ferron worked,' and that the work in the beamer department where Kaus was employed was well ahead of production in the rest of the plant on February 6. J. C. Anderegg, Foreman Fisher; and George Anderegg, foreman of the cord department, also testified that temporary adjustments had been contemplated prior to February 6. J. C. Anderegg testified that on February 3 he directed, that Kaus be laid off. On February 6 he directed the foremen to lay off Ferron .and Adrian' Cravillion in the cord department, and to make room for ,Cravillion in the webbing department by laying off Trainor 5_' Kaus, Trainor, and Ferron were old and experienced employees., During a previous slack period, Kaus had been retained in the beaming department alid another employee, Walter Bero, who was retained on February 6, 1939,' had been laid off on the ground that Kaus was' a more versatile and valuable employee. In previous years Trainor had been night foreman in the hammock department. ' Although Cravil- lion-'displaced Trainor, the respondent retained four junior employees who had been hired since January 15, 1939, in preference to Kaus, Ferron, and Trainor'. A new employee was hired on February 7, 1939, the day after the lay-off, and shortly thereafter an inexperienced employee, Elder Zirbel, was assigned to perform the work previously performed by. Kaus. ' - . In view of these circumstances, the statements of J. C. Anderegg, E. W. Anderegg, and Foreman Fisher,'heretofore and hereafter-noted, the findings of the Trial Examiner, and upon the entire -record, we conclude that the respondent seized 'upon an asserted necessity of 5 J. C. Anderegg testified that Cravillion was kept in preference to Trainor because he was considered a regular employee and Trainor a temporary employee The record does not reveal any substantial difference in the regularity of their employment.-" Cravillion began working for the respondent in May. 1935, and Trainor began in November 1935. Cravillion - had been laid off for approximately.7 weeks in 1936, and fors weeks i'n 1938: Trainor had been-laid off approximately 12 weeks in 1936 and approximately 6 weeks in 1938. Trainor had been working steadily in the webbing department since the fall of 1938, whereas, during the same period, Cravillion had worked' only for, approximately'-2 weeks in that department. 70 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD making temporary adjustments in its working force as,an opportunity to release the three employees most active on behalf of the Union. On February 7, 1939, Kaus, Ferron, and Trainor continued to solicit membership in the Union. In the evening Kaus and Ferron went to Plant "A" to talk with Pete Rasmussen, the night watchman. When they arrived they found Trainor already in Plant "A" with Rasmussen. Ferron then went downstairs to the boiler room of Plant "A" to speak to Willard Vincent, an employee who was working on the night shift. Kaus, meanwhile, asked Rasmussen for the keys to Plant "B" so that he could speak to Edward Lumaye, an employee on the night shift in Plant "B." Rasmussen replied that the keys were lying on the water pump and that he did not know whether or not Plant "B" was locked .6 Kaus then took the keys without objection and went across the road to Plant "B." He asked Lumaye why he had not kept an appointment with Kaus in the afternoon. An argument ensued during which Kaus struck Lumaye, tearing his shirt and bruising him slightly' on the chest. Three or four baby swings, which were stacked in the room, were knocked over and slightly damaged. Kaus then left Plant "B" and returned to his home. On the morning of February 8, 1939, Lumaye and Fisher reported to J. C. Anderegg that Kaus had- entered the plant and assaulted Lumaye. J. C. Anderegg advised Lumaye to "just leave it ride." He directed Elmer Melchior, chief clerk, to make out an unemployment report alleging that Kaus had been discharged for misconduct. He did not attempt to obtain Kaus' version of the incident, and testified that- he did not think it necessary to question Rasmussen concerning the manner in which Kaus had, entered Plant "B". On February 8, 1939, Herman Rauch, a representative of the Wis- consin Labor Relations Board, herein called the Wisconsin Board, and Charles Heymanns, a representative of the Union, conferred with J. C. Anderegg relative to charges of unfair labor practices which the Union had filed against the respondent on•behalf of Kaus, Ferron, and Trainor under the Wisconsin Labor' Relations Act. The parties did not arrive at a settlement and agreed to meet the following day. On February 9, 1939, J. C. Anderegg met with Kaus, Ferron, and Heymanns. He agreed to reinstate Kaus the following Monday, February 13, and to consider his lay-off from February 6 to 13, pun- ishment for his misconduct in assaulting Lumaye. Kaus, at Hey- manns' suggestion, agreed to apologize to Lumaye and,to reimburse - G The respondent introduced a written statement purportedly setting forth Rasmussen's report to E. W. Anderegg to the effect that he had warned Kaus not to enter Plant "B," and that Kaus had "stolen the key." The statement- is not = signed= by Rasmussen. '-Al-- - though he was, present at the hearing , he was not called to testify either that he made the report or that the facts recited therein were true. We tlieiefore do not credit thestate-- ment and find that the incident occurred according to the testimony of Kaus and Trainor set out, in substance, in the text. ALGOMA NET COMPANY 71 him for the damage to his shirt. Anderegg further agreed to re- instate Ferron and Trainor within 20 days or as soon as an opportunity occurred,. and to post a notice, prepared by Rauch, stating in substance that the employees had a right to self-organization and that the re- spondent would not discriminate against any employee who exercised the right and would "comply with the letter and the spirit of such legally guaranteed rights." Kaus reimbursed and apologized to Lumaye and returned to work on February 13. On February 16' Rauch notified the respondent that in view of the reinstatement of Kaus, the posting of the notice, and the prospective reinstatement of Ferron and Trainor, he would recom- mend that. the charges against the respondent pending before the Wisconsin Board be withdrawn. On or about February 20 Trainor requested J. C. Anderegg to reinstate him. Anderegg replied that he would do so when an opportunity occurred. Trainor testified and Anderegg denied, that Anderegg also 'stated "what makes hard times in this country is Roosevelt and the unions and the unions will be cut out in a short time anyway, it will be all over with." In accordance with the findings of the Trial Examiner, we do not credit Anderegg's denial. On February 20, 1939, E. W. Anderegg, president of the respondent, who had been informed by someone outside the plant that there was "trouble in the plant," returned from his vacation. J. C. Anderegg reported to him the lay-off of Kaus, Ferron, and Trainor on February 6, the occurrences on the evening of February 7, and the subsequent settlement. E. W. Anderegg then interviewed Lumaye, Rasmussen, and Adrian Cravillion, another employee, rela- tive to the February 7 disturbance. He made no attempt to interview Kaus, Ferron, or Trainor. On February 21. E. W. Anderegg directed that so-called Benefit Liability Reports to the Wisconsin Unemployment Compensation De- partment be made out for Kaus, Ferron, and Trainor, alleging that Kaus and Trainor had been discharged for misconduct during the week ending February 4, and that Ferron had been discharged during the week ending February 11. Fisher then notified Kaus, who was working, that he would have to take "another vacation." Trainor and Ferron did not receive notice of this discharge until the Benefit Liabil- ity Reports were sent to them from the Wisconsin Unemployment Com- pensation Department. The reports stated in substance that Kaus was discharged for entering the plant while off duty on February 7, and attacking an employee who was working, and that Ferron and Trainor were discharged as his accomplices. On the reports for Ferron and Trainor the date of the entry into the plant is stated as February 3. 72 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD - On February 21, 1939, E; W. Anderegg wrote an open letter to the Wisconsin Board; The letter begins with the words : The writer, upon his return from a recent trip, finds that labor trouble developed during his absence, which we understand was started by an outside labor leader, and also taken part in. by a member of your board. . - The letter, continuing, states that this is the first "labor trouble we have ever had" and that "v-e wouldn't have any now if it wasn't for outsiders coining in and meddling with our affairs";that the respond- ent expected to carry 'a large stock of goods, but if we are going to have some labor racketeer come in here and try and tear down our business we want to know it right now, for we are not going into debt any further to keep our help employed, until we know where we stand. We are closing down Plant "A" today, which will throw out of work about half of our employees, as we feel it is unsafe to build up further stock under present chaotic conditions, and before we resume operations we would like to have a show down on this affair so that we know where we are at. . ... we are not going to let some. outside element come in here and tear down our business at this stage of the game. If there is any danger of this, we, are going to nip it in the bud before is starts and get our money out of this business while the getting, is still good. the majority of our employees ... are with us; why then should this organization be disrupted and disorganized by outside elements. The letter concluded with a request that a representative of the Wis- consin Board be sent to confer with E. W. Anderegg. E. W. Anderegg testified that the terms "labor racketeer" and "outsiders" referred to Heymanns and Rauch. On February 21, E. W. Anderegg_also posted a notice on the door of Plant "A" stating that the plant would be closed until further notice. Thirty-four employees then working in Plant "A" were consequently laid off until February 27 when the `respondent resumed production in Plant "A." He also removed the notice prepared by Rauch setting forth the rights of employees to self-organization and posted another which he composed : This Company intends to comply with labor, laws the same as it has always complied with other laws. Whether a law has been violated or not is eventually determined by the Courts and not by the Union, and that applies to both the employer as well as the ALGOMA NET COMPANY 73 union. 'In other words, while an employer is not supposed to in- terfere with employees in so far as unionization is concerned, the law also protects the employee who does not want to join the union and the law specifies that no employee has to join a union unless he chooses. On or about February 25 one Hendricks, representing the Wisconsin Board, came to Algoma to discuss the case. At the conclusion of the conference, according to the testimony of E. W. Anderegg, Hendricks stated, "I would forget about the whole thing just as if nothing had ever happened." 7- E. W. Anderegg then stated that he would reopen Plant "A" and reinstate the 34 employees who had worked there prior to February 21. Plant "A" was reopened on February 27. On March 7, 1939, the Union filed charges with the Board. On March 18 one Komaroff, a Board Field Examiner; conferred with E. W. Anderegg. Anderegg agreed to reinstate Kaus, Ferron, and Trainor, but requested that they first come to his office. On March 18, 1939, they complied with the request. Anderegg told them he "would consider" taking them back and asked them to sign the follow- ing statement : We, who have been discharged for misconduct, kindly ask' that you reinstate us and if put back to work promise to serve the com- pany to the best of my ability and obey company rules. Trainor and Kaus testified, and Anderegg denied, that Anderegg also stated that "if the union is going to run my business I took 25 years to build it, up and there is nobody come in here-coming here to tear it down." We find, as did the Trial Examiner, that Anderegg in sub- stance made the foregoing statement. On March 19, 1939, Kaus, Ferron, and Trainor reported the occur- rences to Komaroff, who called E. W. Anderegg on the telephone. Anderegg agreed to reinstate the three employees on their oral assur- ance that they would obey company rules. He requested that they report for work on Monday, March 20, 1939. Komaroff telegraphed the information to Kaus. Kaus, who was not in Algoma on Monday, received the telegram on Tuesday, March 21, at which. time Kaus, Ferron, and Trainor reported to E. W. Anderegg. Kaus explained that he had not received the telegram until Tuesday. Anderegg replied that the employees were "too late now-you went to those 2 The record is not clear concerning the meaning of Hendricks' statement . Hendrick was not called as a witness. A copy of the charges before the Wisconsin Board was not introduced in evidence and the record does not sustain the respondent's contention that the charges had been settled or dismissed by the Wisconsin Board We find it unnecessary, particularly in view of the subsequent activities of the respondent, to consider the effect, if any, which a settlement or dismissal of the charges before the Wisconsin Board'would have -on the present proceeding. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD racketeers from out of town before you came into the office. " Anderegg -did not explain his reference to "racketeers ." It is apparent, however, from his previous designation of Heymanns and Rauch as "racketeers" that he referred to them. J. C. Anderegg , who was present at the con- ference, stated "Let's not talk about it anymore" and escorted the employees to the door. E. W. Anderegg testified that he discharged Kaus, Ferron, and Trainor on February 21 because they were guilty of illegal acts and had violated the respondent's rules in entering the plant on February 7. The record discloses that there was a sign over the door on Plant "A" which read : "This Entrance For Employees Only. Go to the Office or Stay Out," and a sign over the door in Plant "B" which read : "Posi- tively No Admittance. This Means You. Apply at Office." The respondent's officers had given Rasmussen verbal instructions not to allow employees in the plant when they were not working . The tes- timony of witnesses both for the respondent and the Board, however, establishes clearly that it was customary for employees not on duty to visit with Rasmussen in Plant "A," and that the respondent made no attempt to enforce the rule against employees entering the plant when they were not on duty. It is true that Kaus engaged in violence by assaulting Lumaye on February 7. We are convinced, however, that such misconduct was notthe basis for his discharge . The respondent by reinstating him on February 13, after considering the facts as reported by Lumaye, Fisher, Kaus, and Ferron, was willing to overlook his misconduct and to con- sider the lay-off from February 6 to 13 sufficient punishment. More- over, the statements of J: C. Anderegg to Lumaye when the incident was reported to him, and his testimony that he did not consider it necessary even to interview Rasmussen concerning the manner in which the three employees entered the plant indicate that the respondent did not consider the alleged infraction of its rules serious. That the sub- sequent action of E. W. Anderegg in discharging not only Kaus, but Ferron and Trainor as well, was motivated by his opposition to the Union and their activities on its behalf , is clearly evident from his open letter to the Wisconsin Board, his removal of the notice furnished by the Wisconsin Board and the posting of his own instead, his statements to Trainor and Kaus that the Union was. not going to come in and "tear down his business," and his arbitrary refusal to fulfill his agree- ment to reinstate the employees on March 21 because they were "too late" and had visited those "2 racketeers from out of town" before they reported to him. E. W. Anderegg testified that he closed Plant "A" because he believed that J. C. Anderegg had been coerced into reinstating Kaus, and that if the Wisconsin Board were going to "uphold lawlessness," he pre- ALGOMA NET COMPANY 75 ferred to liquidate the business. There is no evidence that J. C. Anderegg had been coerced by the Wisconsin Board or by the Union. Moreover, E. \V. Anderegg's letter to the Wisconsin Board again makes it evident that he closed the plant in order to "nip in the bud" the attempt of -'outside elements" and "labor racketeers" "to tear down our business." His statements to Kaus, Ferron, and Trainor, as well as those of Fisher and J. C. Anderegg heretofore set out, show that the respondent was motivated throughout by its opposition to the Union, and that its references to "outside elements" and "labor racketeers" were intended to refer to those responsible for the formation of the Union in the respondent's plant. We find that the respondent by releasing Gerald Kaus, Manuel Ferr<n,, and Louis Trainor on February 6, 1939, by discharging Kaus on February 21, 1939, by thereafter refusing to reinstate any of them, and by locking out the employees in Plant "A" between February 21 and 27, 1939, discriminated in regard to their hire and tenure of em- ployment, thereby discouraging membership in a labor organization; and by such discrimination and by the other acts and statements of its officers and supervisory employees set out above interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Kaus received 271/2 cents an hour. at the time he was discharged._ From the date of his discharge to the date of the hearing, he had earned approximately $26 and his board and room as a temporary farm laborer. Trainor received 30 cents an hour at the time of his discharge. From the date of his discharge to the date of the hearing he had earned approximately $72 as a temporary laborer in a ceme- tery. Ferron"'receihhed '271/2 cents an hour at the time of his discharge. From the. date of his discharge to the date of the hearing, he had earned approximately $2.50 and his board and room as a temporary laborer. All three employees desire reinstatement. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several' States, and- have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since we have found that the respondent has ' engaged in unfair labor practices, we shall' order it to cease and desist therefrom and to 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .'take certain affirmative action designed to- effectuate the policies of the Act. We have found that the respondent discriminated in regard to the hire and tenure and terms and, conditions of employment of Gerald Kaus, Louis Trainor, Manuel Ferron; and the 34 persons employed in Plant "A" on February 21, 1939, because of their union membership and activity. • Since the, employees in Plant "A" were taken back on February 27 it is' not necessary to order their reinstatement. Kaus, Ferron, and Trainor have not been reinstated. We shall therefore order the respondent to offer tliem immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. We shall order the . respondent further to make Kaus, Ferron, Trainor, and the employees in Plant "A" who were locked out on February 21, whole for any loss of pay they have suffered by reason of the discrimination against them -by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondent's discrimination against him to the date of reinstatement or offer of reinstatement, less his net earnings 8 during said period. -In view of Kaus' assault upon Lumaye on February 7, 1939, we shall not order the respondent to award him back pay from-February 7 to 13, 1939, the date upon which'the respondent first reinstated him. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CON CLUSIONs -OF LAW 1. American Federation of Labor is a' labor organization within the meaning of Section 2 (5) of the Act. - 2. By discriminating in regard to hire and tenure and terms and conditions of employment of Gerald Kaus, Louis Trainor, Manuel Ferron, and the employees in Plant "A," thereby discouraging mem- bership in the American Federation of Labor, -the respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. ' 8 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B 440 In the past we have held that monies received for work performed upon Federal , State, county , municipal, or other work-relief projects should be deducted from the sum due the employee and the amount paid over to the appropriate fiscal agency of the government which supplied the funds for said work-relief projects. In Republic Steel Corporation v. National Labor Rela- • tsons Board ( decided November 12, 1940) the United States Supreme Court ruled such provision beyond the scope of the Board's authority under- the Act. As used herein the term "earnings" shall include monies received for work performed upon work -relief projects. ALGOMA NET COMPANY 77 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) 'of the Act. 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- spondent, Algoma Net Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in American Federation •of Labor or any other labor organization of its employees by discharging, lay- ing off, or 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; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or 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) Offer to Gerald Kaus, Manuel Ferron, and Louis Trainor im- mediate and full reinstatement to their former or substantially equiva- lent positions without prejudice to their seniority and other rights and privileges; (b) Make whole Manuel, Ferron, Louis Trainor, Gerald Kaus, and the 34 employees in Plant "A" who were discriminated against on February 21, 1939, for any loss of pay they have suffered by reason of the respondent's discrimination in regard to their hire and tenure and terms and conditions of employment, by payment to each of them of a sum of money equal to that which he would have earned as wages, during the period from the date of the discriminations to the date of reinstatement or offer of reinstatement, less his net earnings 9 during said periods; excluding, however, in the computation of the sum due to Gerald Kaus the period from February 7 to 13; See footnote 8, supra. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post immediately and in conspicuous places in each department of the respondent's plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices stating: that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b ) of this Order; that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order;- and that employees are free to remain or become members of American Federation' of Labor and the re- spondent will not discriminate against any employee because of mem- bership or activity in that organization; (d) Notify the Regional Director for the Twelfth Region in writ- ing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. CHAIRMAN HARRY A. MILI.Is took no part in the consideration of the above Decision and Order.