Algoma Net Co.

National Labor Relations Board - Board Decisions

Nov 23, 1940

28 N.L.R.B. 64 (N.L.R.B. 1940)

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