The Frost Rubber Works

National Labor Relations Board - Board Decisions

May 22, 1940

23 N.L.R.B. 1071 (N.L.R.B. 1940)

.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.