Marathon Electric Mfg. Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1953

106 N.L.R.B. 1171 (N.L.R.B. 1953)

MARATHON ELECTRIC MFG. CORP. 1 171
MARATHON ELECTRIC MFG. CORP. and LOCAL NO. 1113,
UNITED ELECTRICAL, RADIO AND MACHINE WORKERS
OF AMERICA' and LOCAL NO. 1791, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL2
MARATHON ELECTRIC MFG. CORP. and LOCAL NO. 1113,
UNITED ELECTRICAL, RADIO AND MACHINE WORKERS
OF AMERICA. Cases Nos . 18-CA-436 and 18-CA-437.
September 29, 1953
DECISION AND ORDER
On March 4, 1953, Trial Examiner George A. Downing issued
his Intermediate Report in the abgve-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter the Respondent, UE, IBEW, and General Counsel
filed exceptions to the Intermediate Report. The Respondent,
IBEW, and General Counsel also filed supporting briefs.'
The Board has reviewed the rulings made by the Trial
Examiner at the hearing4 and finds that no prejudicial error
lI lerein called UE
2Herein called IBEW.
3 The Respondent's request for oral argument is denied because the record, exceptions, and
briefs, in our opinion, adequately present the issues and the positions of the parties
On September 9, 1953, the Respondent filed a supplemental brief. On September 10, 1953,
the LIE requested that the Board reject this brief on the ground that it was not timely filed
As the supplemental brief was not filed in accordance with Section 102.46 of the Board's
Rules and Regulations, we shall reject the Respondent's supplemental brief.
4At the close of the hearing, the Trial Examiner reserved ruling on the Respondent's
motion for dismissal of the portions of the complaint relating to the laid- off employees and as
to all other employees who did not appear as witnesses for the General Counsel. The Trial
Examiner failed to rule on this motion in his Intermediate Report. In accordance with our
decision herein, the motion is hereby granted.
In its exceptions, Respondent contends that the Trial Examiner was biased and prejudiced
in his conduct of the proceeding. It asserts that he made arbitrary rulings adverse to Respond-
ent, facetiously claimed not to understand Respondent's theory of the case, and prejudged the
case before any evidence was submitted. We have carefully scrutinized the record and find
that it does not sustain these charges.
106 NLRB No. 199.
322615 0-54-75
1 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was committed . The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
briefs , and the entire record in the case, and hereby adopts
the findings , conclusions , and recommendations of the Trial
Examiner except to the extent that they are inconsistent
herewith.
UE had been the recognized bargaining representative of the
production and maintenance employees of Respondent ' s Wausau
plant since about 1937, and the Respondent and UE have been
parties to successive contracts . The last contract, dated July
31, 1951, for a •1-year term, contained among other things a
union-shop clause, a grievance and arbitration clause, and a
no-strike , no-lockout clause , providing , in part, as follows:
". . . the Union will not authorize or sanction any strike . . .
and the Company will not lockout the employees . . . . In case
any such action . . shall occur . . . any or all of the employees
taking part will be subject to discipline or discharge."
In February 1952,5 the plant was operating with approxi-
mately 480 employees on the first shift ( 7 a. m. to 3 p. m.),
60 on the second shift ( 3 p. m. to 11 p. m. ), and 10 on the
third shift ( 11 p. m. to 7 a. m. ). The first shift consisted
primarily of production employees who assembled the finished
product. The second- and third-shift employees consisted of
cleanup men and highly specialized employees who made and
machined parts to be used by the first - shift employees in the
assembly of the finished product. On February 28, 35 first-
shift employees were absent from work because of illness,
vacations , or other personal reasons.
For some time prior to February 28, the Respondent and
UE had conferred periodically with respect to the remaining
2 cents of a wage increase providedforin the contract . On that
day, UE held a meeting of all officers and stewards at 10 a. m.
to discuss the Respondent ' s action with respect to the 2-cent
increase . It was voted to call a full membership meeting for
2 p. m. that day, unless the Respondent granted certain UE
demands . At 2 p. m., the Respondent having rejected the
demands , all employees stopped work, left the plant, and with
few exceptions , went to the UE meeting at the Youth Center. 6
No prior strike notice had been given to the Respondent or the
Federal Mediation and Conciliation Service. Management was
not told how long the work stoppage would last , nor did the
Respondent have any definite information on the subject.
At approximately 2:40 p. m ., the Respondent began locking
the various employee entrances , and the watchmen were
5 All events referred to herein occurred in 1952 , unless otherwise specified.
6 The General Counsel concedes that all the first- shift employees who walked out of the
plant at 2 p. m. participated in the work stoppage in violation of the no- strike clause of the
contract and are therefore not entitled to reinstatement. The General Counsel sought rein-
statement only for those who allegedly did not participate in this walkout.
MARATHON ELECTRIC MFG. CORP. 1173
instructed not to admit any of the plant employees. The gates
remained locked until the Respondent resumed operations on
March 18.
Between 2:40 and 3 p. m., approximately 17 second-shift
employees (excluding UE stewards) came to the entrances but
were unable to gain admittance. About 3 p. m., most of them
went on to the UE meeting which had gotten underway around
2:30 p. m., with Muelver, UEpresident,presiding. The meeting
concluded around 4 p. m. with a direction from Muelver that
all employees report for work on their regular shifts. Then
Muelver and the bargaining committee went to the plant and
made several fruitless efforts to arrange a conference with
management to settle the outstanding issues . Six of the ten
third-shift employees reported for work at 11 p. m. on the
28th, about 275 of the first- shift employees reported the follow-
ing morning , and the second - and third - shift employees con-
tinued to report until March 3. However, none of these
employees was admitted to the plant.
On February 29 the Respondent sent a letter to its employees
purporting to discharge all participants in the strike.
On March 3 the Respondent advertised in the local newspaper
and by radio that it was hiring new employees. On March 4, due
to these advertisements , UE began picketing the Respondent's
premises and the picketing continued to the date of the hearing
herein.
On March 5, the Respondent sent a letter to all plant
employees stating that the letter was "going to all employees
on strike " except union officers , stewards , and committeemen.
This letter stated that the Respondent was canceling its contract
with UE, canceling its recognition of UE, and asked the em-
ployees to apply for work, stating that "... You should know
that, unfortunately, this union action forces us to consider
everyone who is rehired to be a new employee."' A similar
letter was sent to UE on the same day. None of the recipients
of the letter reported for work in response thereto.
Lois Ann Kalinke and Gertrude Schoeman were the wives of
two first-shift employees who were UE members and who
participated in the walkout of February 28. The wives were
office employees and therefore not within the unit represented
by UE and they were not members of UE. On March 14 Wall,
the Respondent's president, called them into his office and
notified them that they would be discharged unless their
husbands abandoned their picketing of the plant and returned
to work. When the wives indicated their unwillingness to
cooperate, they were promptly discharged.
Four watchmen worked throughout the period from February
28 to March 18, while operations were suspended. These men
were members of UE. Between March 18 and March 20, each
7 Neither this letter nor any of the letters previously mentioned were sent to 105 employees
laid off from November 1951 through February 1952, Under its contract Respondent was re-
quired to fill any vacancies by recalling these inactive employees in order of seniority.
1 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was informed that he would have to sign a new application in
order to retain his employment. Hoeft was told that "when you
sign you are not a member of UE any more" and that he was
through if he attended UE meetings or paid dues. Ninneman
was told that he would have seniority as a new employee and
to sign the application form or he was through. Rusch was told
that the signing of the application form meant that he would not
pay dues to UE or go on the picket line or attend meetings, and
that if he did so, he would be discharged. He was also informed
that he would be starting as anew employee, and would lose his
vacation and insurance benefits. Detert was told that he had to
sign up as a new employee and that "you realize that you can't
belong to your union and work for Marathon at the same
time . . . Besides that you can be only on one side of the fence
or the other." Each of these employees refused to continue his
employment under the conditions outlined above.
On March 25 Tomek, Respondent's attorney, in the presence
of Gaines, factory manager, and two employees, told Muelver
that "I am speaking for the Company when I say that the UE
will never come in the plant again."
Respondent reopened its plant on March 18 with 17 employees.
By April 3 the number had increased to 39. On that date, a
committee of employees met with Wall and Gaines and claimed
to represent a majority of the employees and demanded bar-
gaining rights for the committee . Wall agreed to recognize the
committee as the representative of the employees, although it
had not submitted written authorizations from the employees.
Wall further stated that if it found a "satisfactory union" he
saw no reason why he could not go along with it.
That night the committee procured application cards from a
representative of IBEW . The next morning these cards were
distributed to the employees, mainly on company time, and 39
signatures were obtained. The Respondent's controller, Jones,
was informed that the employees were organizing into IBEW
and after getting Wall's permission, he agreed to advance $3
for initiation fees and the first month's dues to each employee
who would sign a written authorization for such advance. A
stencil was then typed on one of Respondent's typewriters during
working time and was run off on the Respondent's duplicating
machine on company time. The cards were then circulated and
signatures obtained on company time. Davis, a committeeman,
presented the signed cards to Jones and was advanced the proper
amount of money, which was then delivered to the IBEW repre-
sentative on company time with the permission of Gaines.
On April 4 Wall, in rejecting bargaining overtures by UE,
stated that UE members would have to come back as individuals
and not as members of UE, and that he did not intend to recog-
nize UE but there was another union that he would recognize.
On April 9 Wall wrote to the employee committee formally
recognizing IBEW as the bargaining representative of the
production employees. While Tomek thereafter advised Wall
MARATHON ELECTRIC MFG. CORP. 1175
that he could not legally recognize the committee as the
representative of the employees , Wall did not rescind the
letter , and between April 9 and June 9 , various bargaining
conferences were held between the committee and the Re-
spondent.
IBEW issued a charter to Local 1791 on June 1. On June 9
Wall, by letter , formally recognized the Local as the bargaining
representative of the production employees . The Respondent did
not at this time request the Local to submit proof of its majority
status , but the Respondent had on file dues-deductions authori-
zations from approximately 90 of its 115 employees.
Formal negotiations with Local 1791 began around the middle
of June and concluded in early August . The contract was signed
on August 29. Most of the meetings were held during working
hours , and the bargaining committee was paid for this time by
the Respondent , although no such payments had been made in
the past to UE negotiators.
On or about August 9, Leslie Dickinson , a third-shift em-
ployee, who was a nonparticipant in the strike , went to the plant
to get his toolbox. He was requestedby Gaines, factory mana-
ger, and Rhyner , a foreman , to return to work but was told that
he would have to start as a new employee and would have to
join IBEW.
On August 29, August Wiese, a nonparticipant in the strike,
and Edward Detert , 1 of the 4 watchmen mentioned above, went
to the plant and sought reinstatement . They were informed that
they could return to work only if they signed up as new em-
ployees and forfeited their seniority , and that they would have
to forget all about UE and join IBEW.
II.
The Trial Examiner found , and we agree, that:
(a) The Respondent constructively discharged the four watch-
men, Hoeft , Detert, Ninneman , and Rusch , by conditioning their
future employment upon abandonment of UE, thereby violating
Section 8 (a) (3) and ( 1) of the Act.
(b) The Respondent assisted , sponsored , contributed support
to, and interfered with the organization , formation , and estab-
lishment of , Local 1791, IBEW , in violation of Section 8 (a) (2)
and (1 ) of the Act, as set forth in the Intermediate Report.
(c) The Respondent violated Section 8 ( a) (1) of the Act by
stating that it would not deal with UE or permit it in the plant
again; by threatening to move the plant rather than deal with
the Union ; by soliciting employees to repudiate and abandon
UE; and by informing employees ( who did not participate in the
February 28 walkout) that as a condition of reinstatement or
continued employment they would have to cease their support
and adherence to UE and forfeit their seniority rights and other
benefits.
1 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found, and the General Counsel concedes,
that the February 28 walkout was unprotected because it was in
breach of the contract between the Respondent and UE; and that
the Respondent was, therefore, privileged to lock out and dis-
charge all those employees who actually participated in the
strike.
The Trial Examiner found further that the 62 employees
listed in Appendix B of the Intermediate Report did not
participate in the walkout of February 28, and that, in locking
out on February 28, and discharging on February 29, the
foregoing 62 employees, the Respondent violated Section
8 (a) (3) and (1) of the Act. The Respondent excepts to these
findings.
A. As to the lockout onFebruary28, the Respondent contends
that such lockout was not motivated by discriminatory reasons,
as found by the Trial Examiner, but solely by economic con-
siderations. The Board finds merit in this contention.
At 2 p. m. on February 28, all the Respondent's first-shift
employees had walked off their jobs at the instance of UE. The
Respondent had no means of knowing how long this work stoppage
would last. It was, therefore, confronted with the choice of
shutting down entirely or continuing operations indefinitely
without the first-shift employees and with the second- and
third-shift employees alone (assuming that these two shifts
would report for work). r
The second- and third-shift employees were primarily
engaged in the manufacture of special parts which were used
by the first-shift employees in assembling the final product.
The Respondent contends that it would not have been economi-
cally feasible to operate with the second and third shifts alone.
The record shows that the Respondent already had a large
backlog of the special parts produced by those shifts. Indeed,
upon resumption of operations, the Respondent assembled
approximately 6,000 units of its final product before the
manufacture of special parts became necessary.
The Board does not believe, therefore, that it has been estab-
lished by the preponderance of the evidence that the lockout of
February 28 was discriminatory and was not dictated solely by
economic considerations. Accordingly, the Board finds, con-
trary to the Trial Examiner, that the Respondent did not violate
Section 8 (a) (3) and (1) of the Act by closing its gates on
February 28 and denying admittance to the second and third
shifts on that date.8
B. The 62 employees listed in Appendix B of the Intermediate
Report consist of (1) first-shift employees who were not at
8 We do not find it necessary to decide whether the fact that a large number of first- shift
employees reported for work on the morning of February 29 thereafter deprived the lockout
of any economic justification. On that date the Respondent, as found below, validly discharged
virtually all its plant employees, and their failure to report on and after February 29 is
attributable to the discharge rather than to any continuation of the lockout.
MARATHON ELECTRIC MFG. CORP. 1 177
work on the day of the walkout because of injury, illness, leave
of absence, or other excused absence; (2) first-shift employees
who reported for work on that date but who were excused and
left the plant prior to the walkout; (3) second-shift employees
who reported for work at 3 p. m. on the day of the walkout
or who were in the vicinity of the plant gate at that time, but
who, in neither case, were able to gain admittance to the plant;
and (4) second- and third-shift employees who were not due to
report for work until after 3 p. m. on that date. The Trial
Examiner found that none of these employees were party to the
illegal walkout and that the Respondent discharged them in
violation of Section 8 (a) (3) and (1) of the Act. We find merit
in the Respondent's exceptions to this finding.
The Trial Examiner found that, while the Respondent was
lawfully entitled to discharge those employees actually taking
part in the walkout of February 28, the 62 employees in the
categories listed above were not participants in that action
and were thus not amenable to discharge for breach of contract.
We believe that this conclusion is not substantiated by the facts
before us. The Respondent's employees, at the time of the
walkout, were members of a strong and militant local of UE
under a contract which made such membership a condition of
employment. The walkout of February 28 was an action for
which that union was admittedly responsible and which received
the complete support of the employees who were in the plant
at the time it took place. The record is silent as to any showing
of dissent among these 62 employees as to whether or not the
walkout should take place as called by the regularly constituted
leadership of UE.
It is, of course, true thatthe employees in these 4 categories
fortuitously did not happen to be physically present in the plant
at the precise time the illegal action took place. Any inference
that these individuals did not share in that action, however, is
effectively dispelled by other evidence pointing strongly to the
contrary. While these individuals were absent at the specific
hour of the walkout, many of them, after hearing of that action
upon arrival at the plant gates, thereafter joined their fellow
employees at the UE membership meeting then in progress.
The Respondent's letter to the employees of February 29
stated clearly that all "participants" in the strike were dis-
charged and carefully cited the provision of the contract sup-
porting such action in the case of "employees taking part"
therein. Although this was an implicit notice and invitation to
each employee to inform the Respondent if he was not in such
category, so far as the record shows none of the 62 employees
here concerned made any attempt to disassociate himself from
his union's walkout or advised the Respondent that he was not
one of those sharing in the group strike action taken by his
bargaining representative. On the other hand, at the hearing,
11 of these 62 employees were asked in effect whether they
would have accepted any offer of reinstatement which did not
include all other members of the UE. Of these 11, 9 answered
1 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the negative . This sampling further points to the conclusion
that, with a few possible exceptions not made known to the
Respondent , the 62 employees were in complete accord with
the action taken on the 28th by their union.
Finally, as to others of these employees who appeared at the
gates at second - and third - shift time , there is evidence that
their appearance at the plant gates after the gates had been
locked was a tactical maneuver on the part of UE rather than
evidencing a genuine intent to go to work . In this respect the
record shows that there was expectation on the part of the UE
that, following the fir st- shift walkout, the gates would be locked
as, indeed, they had been closed before in a like situation.
Union officials were present in the vicinity when the locking
occurred for the purpose, as noted by the Trial Examiner, of
reporting such activity promptly to the UE membership meeting.
After such report had been made , the employees were instructed
by their union leaders to report to work at their regular shift
times. Inasmuch as there is also evidence that the UE antici-
pated that the Respondent would be guilty of an illegal lockout
under these circumstances , we conclude that many of those
reporting on the second and third shifts did so as a part of a
tactical maneuver by the UE rather than froma desire to go to
work.
We find, therefore , that the Respondent did not violate Section
8 (a) (3) and (1) of the Act by discharging the 62 individuals
named in Appendix B of the Intermediate Report.
IV.
The Trial Examiner found that the Respondent discrimina-
torily failed and refused to recall the 105 employees, named
in Appendix C of the Intermediate Report, who had been laid
off between November 1951 and February 28, 1952, and that
the Respondent thereby violated Section 8 (a) (3) and (1) of the
Act. The Respondent excepts to this finding.
The aforesaid employees were carried on the Respondent's
records as inactive employees and the Respondent ' s contract
with UE required that the laid-off employees be given priority
in filling vacancies. This the Respondent admittedly failed to do.
The Respondent contends, however, that the contract, including
the provisions therein for recall of such employees to fill
vacancies, had been validly canceled on March 5, 1952; that
there was no longer a contractual duty to recall these em-
ployees; and that, therefore, its failure to recall them was not
violative of the Act. We find merit in this contention.
Although these employees had had a right to recall and
reemployment , this right was dependent upon the contract
between the UE and the Respondent. This contract was breached
by the UE and, as is found in section VI, infra,was lawfully
rescinded by the Respondent . As a result , Respondent was no
longer under any contractual duty to recall these workers-'
MARATHON ELECTRIC MFG. CORP. 1 179
Moreover , there is no evidence in the record to rebut the
Respondent ' s contention that its only reason for not recalling
these employees was the cancellation of the contract. The
record does not show how many, if any, of these employees
were still UE members or that the failure to recall them was
because of their actual or supposed connection with UE. We
find, therefore , contrary to the Trial Examiner, that the
failure to recall these 105 employees did not violate Section
8 (a) (3) and ( 1) of the Act.'
V.
The Trial Examiner found , and the Respondent concedes,
that Mrs. Kalinke and Mrs. Schoeman , although notthemselves
UE members , were discharged on March 14 because their
husbands , who were UE members and participants in the
February 28 walkout, persisted in picketing and refused to
return to work . The Trial Examiner found that these discharges
were calculated to discourage membership in and adherence to
UE, in violation of Section 8 (a) (3) and ( 1) of the Act. We agree.
The Respondent contends that the purpose of the discharges
was not to discourage UE membership of the husbands , because
nothing in the record shows that the husbands were required to
resign from UE . However, in the case of Mrs. Schoeman, the
Trial Examiner found that she was told by Respondent that her
job depended on her husband returning to work "without the
Union ." In any event, it is well settled that discharges of
employees for concerted activities by relatives of such
employees , whether or not specifically in reprisal for union
membership of such relatives , violates Section 8 ( a)(3) and (1)
of the Act."
The Respondent contends further that the discharge of the
wives , even though for the purpose of coercing the husbands
to refrain from concerted activities, was not unlawful, as the
concerted activities of the husbands were unprotected. This
contention assumes that the picketing by the husbands at the
time of the discharges on March 14 was in breach of contract.
However, it is clear that on February 29 the Respondent had
discharged the husbands , who were concededly participants in
the original walkout . Having been validly discharged , they were
no longer employees of the Respondent , and therefore were no
longer bound by the contract, including the no-strike clause.
Moreover , as the contract had been canceled on March 5, that
9 In view of our disposition of this case, we do not find It necessary to rule upon the Re-
spondent's procedural objections to this portion of the complaint.
10 Fuchs Baking Co., 102 NLRB 1350; N. L. R. B. v. Stowe Spinning Co , 165 F. 2d 609, 614
(C. A. 4); Rome Specialty Co., 84 NLRB 55; Barr Packing Company, 82 NLRB 1. Even if not
a violation of Section 8 (a) (3), the discharge of the wives for concerted activities of the
husbands would, in any event, violate Section 8 (a) (1) of the Act. Whether the discharges be
viewed as a violation of Section 8 (a) (3) or Section 8 (a) (1), the appropriate remedy would be
the same--namely , reinstatement with back pay. See Kennametal, Inc., 80 NLRB 1481, 1483,
enfd. 182 F. 2d 817 (C. A. 3).
11 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact alone precludes a finding that the picketing by the husbands
on March 14 was unprotected because in breach of the con-
tract."
Moreover, the discharges were not only calculated to dis-
courage concerted activities of the husbands but also to deter
the wives from joining, or giving support in the future to, UE
or any other labor organization. The wives were also coerced
thereby in the exercise of their statutory right to refrain from
"engaging" in concerted activities, which includes, in our
opinion, the right of a nonstriker to maintain his neutrality
in a strike situation and to resist any pressure to assist one
or the other parties to the dispute.
VI.
The Trial Examiner found that the Respondent violated Section
8 (a) (5) and (1) of the Actby (1) refusing to bargain with UE on
and after February 28, 1952, and (2) unilaterally canceling its
contract with UE on March 5. We do not agree with these
findings, for the following reasons:
It is not disputed that on February 28 UE represented a
majority of the employees in the appropriate unit, or that the
Respondent refused to bargain with UE on that date after the
walkout, and during the next few months. However, as to the
refusal to bargain on February 28, UE, by calling a strike in
breach of the contract, forfeited its bargaining rights until such
time as it notified the Respondent that the strike had been
terminated.12 The Trial Examiner found that the strike was in
fact terminated about 4 p. m. on February 28, when Muelver
instructed the employees to report for work at the beginning of
their regular shifts. However, there is no evidence in the record
that the Respondent was notified on that date of the termination
of the strike. The record shows only that Muelver, after the
UE meeting, requested a conference with the Respondent to
settle the strike issues. The Board finds, therefore, that the
Respondent on the 28th had no notice that the strike had ended
and, absent such notice, did not violate the Act by rejecting
Muelver's bargaining overtures on that date.
On March 5, the Respondent wrote UE a letter stating, in
part: "We hereby notify you that because of the breach of our
contract with you dated July 31, 1951, we hereby cancel the
contract."
The Trial Examiner found Respondent's act of uni-
laterally canceling the contract and all employee benefits
thereunder to be a refusal to. bargain in violation of Section
8 (a) (5) and (1) of the Act. However, the contract itself spe-
cifically provided in Article XII thereof that . . the Union
will not authorize or sanction any strike . . ." Contrary to this
"Boeing Airplane Co. v. Aeronautical Industrial District Lodge No. 751. International Ass'n
of Machinists, et al., 188 F. 2d 356, cert. den. 342 U. S. 821.
12 Higgins, Inc., 90 NLRB 184; United Elastic Corporation, 84 NLRB 768.
MARATHON ELECTRIC MFG. CORP. 1 181
provision of the contract, the UE officers, stewards, and
committeemen did call a strike on February 28. In these
circumstances, we find that the Respondent's unilateral can-
cellation of its contract with UE did not constitute a violation of
Section 8 (a) (5) and (1) of the Act, but was justified by UE's
prior breach of the contract.
After February 28, UE made no further bargaining overtures
until March 27, 1952. The overture on that date, as well as
others made on various dates in April and on May 26, was
rejected by the Respondent.
The Trial Examiner found that throughout this period the 62
alleged nonparticipants "remained in and constituted the unit"
of which UE was the bargaining representative. He found further
that the 105 laid-off employees were entitledtobe recalled and
had not lost their status of employees." He, therefore, found
that UE's representative status continued in effect and that the
refusals to bargain in March, April, and May were violative of
Section 8 (a) (5) and (1) of the Act. The Respondent contends that
it was under no duty to bargain during that period because UE no
longer represented a majority of the employees after February
29. On that date the Respondent, as has been found above,
validly discharged all its current employees in the bargaining
unit except the 4 watchmen, who were discriminatorily dis-
charged between March 18 and 20. We have also found that the
Respondent's refusal to recall and reinstate the 105 laid-off
employees was not discriminatory. We, therefore, find merit in
the Respondent's contention.
The normal complement for Respondent's factory was ap-
proximately 550 employees, of whom approximately 546 had
been lawfully discharged. Respondent was engaged throughout
the period in question in an intensive effort to recruit a full
complement as soon as possible. Thus, the 4 watchmen, who
were all members of UE, would constitute in the aggregate
less than 1 percent of Respondent's normal work force,.which
would not be a substantial and representative segment of such
work force.
In representation proceedings, it is the policy of the Board
to dismiss as premature a petition filed at a time when there
is no substantial and representative employee complement. u
The same policy considerations require that, in a case involving
an alleged unlawful refusal to bargain, the Board refrain from
finding a violation of Section 8 (a) (5) and from issuing a bar-
gaining order in favor of a union, unless at the time of the
refusal to bargain the union was the majority representative
of a substantial and representative segment of the employer's
normal work force. As this condition was not satisfied in the
instant case, we find, contrary to the Trial Examiner, that the
is While the Trial Examiner did not expressly find that these 105 employees were part of
the appropriate unit, such a finding seems implicit in his discussion.
14 Westinghouse Electric Corporation , 84 NLRB 1519; Coast Pacific Lumber Co., 78 NLRB
1245.
1 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent did not violate Section 8 (a) (5) and (1) of the Act
by refusing to negotiate with UE after the February 29
discharges.]' As it has already been found that there was no
unlawful refusal to bargain on February 28, the complaint will
be dismissed insofar as it alleges that the Respondent violated
Section 8 (a) (5) of the Act.16
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and
take certain action designed to effectuate the policies of the
Act.
We have found that the Respondent discriminated against
Gertrude Schoeman, Lois Ann Kalinke, Edward Detert, William
Rusch, Charles Ninneman, and Robert A. Hoeft, Sr., and that
the Respondent thereby violated Section 8 (a) (3) and (1) of the
Act. Accordingly, we shall order that the Respondent offer to
the above-named employees immediate and full reinstatement
to their former or substantially equivalent positions,'' without
prejudice to their seniority or other rights and privileges and
make them whole for any loss of pay suffered by reason of the
discrimination against them. Said loss of pay for each employee,
based upon earnings which he normally would have earned from
the date of the discrimination against him to the date of Re-
spondent's unconditional offer of reinstatement, less net earn-
ings ," shall be computed on a quarterly calendar basis in
accordance with the formula adopted by the Board in F. W.
Woolworth Company
We shall also order the Respondent to make available to the
Board, upon request, payroll and other records to facilitate the
checking of the amounts of back pay due and to determine the
right of employees to reinstatement under our Order.
We have also found that the Respondent, in violation of Section
8 (a) (2) and (1) of the Act, has assisted, sponsored, contributed
support to, and interfered with the organization, formation, and
establishment of Local 1791, IBEW. In order to restore the
status quo and to free the employees from the restraint upon
15 See N. L. R. B. v. Stafford Operating Co., 206 F. 2d 19 (C. A. 8).
Z The Trial Examiner found further that Respondent, by (1) continuing the lockout as to the
nonparticipants, (2) discharging all of its employees, and (3) cancelling its recognition of UE
as the bargaining representative of its employees, refused to bargain with UE in violation of
Section 8 (a) (5) and(1)oftheAct. We find, however, that the cancellation of recognition of UE,
which occurred on March 5, did not violate Section 8 (a) (5) of the Act, as UE, for reasons
indicated in the text, had on that date ceased to be the exclusive representative of the em-
ployees. Moreover, the lockout and discharges would not be violations of Section 8 (a) (5) but,
if anything, of Section 8 (a) (3), and they have been considered in that light in the preceding
discussion. Accordingly, we do not agree with any of these subsidiary findings of violations of
Section 8 (a) (5) and (1).
17 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
"See Crossett Lumber Co., 8 NLRB 440.
1990 NLRB 289.
MARATHON ELECTRIC MFG. CORP. 1183
their freedom of self-organization, we shall order that the
Respondent withdraw recognition from, and cancel its contract
with, Local 1791, IBEW, and refrainfrom recognizing or dealing
with said labor organization, unless and until it is certified by
the Board as the collective-bargaining representative of the
Respondent's employees.
Because of the nature of Respondent's unlawful conduct and
its underlying purpose, we are convinced that the unfair labor
practices found are persuasively related to other unfair labor
practices proscribed by the Act and that a danger of their
commission in the future is to be anticipated from the course
of the Respondent's conduct in the past. The preventive purpose
of the Act will be thwartedunless our order is coextensive with
the threat. In order, therefore, to make effective the interde-
pendent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, to minimize strife which burdens and
obstructs commerce, and thus to effectuate the policies of the
Act, we will order that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed by Section
7 of the Act.
ORDER
Upon the entire record in this case and pursuant to Section
10 (c) of the National Labox Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent, Marathon Electric Mfg. Corp., Wausau, Wisconsin,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Assisting, contributing support to, or in any other manner
interfering with the formation and administration of, Local 1791,
IBEW, or any other labor organization of its employees.
(b) Recognizing or in any other manner dealing with Local
1791, or IBEW, as the collective-bargaining representative of
any of its employees, unless and until the said organization shall
have been certified by the National Labor Relations Board as the
representative of such employees.
(c) Discouraging membership in Local 1113, UE, by discrimi-
natorily discharging any of its employees or by discriminating
in any other manner in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist Local
1113, UE, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
1 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board
find will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Local 1791
and IBEW as the collective-bargaining representative of any of
its employees for the purpose of dealing with it concerning
grievances, labor disputes, rates of pay, wages, hours of
employment, or other conditions of employment, unless and
until it shall have been certified as such representative by the
Board, and terminate and cancel its contract with said Local
1791 dated on or about August 29, 1952.
(b) Offer to Lois Ann Kalinke, Gertrude Schoeman, Robert
A. Hoeft, Sr., Edward Detert, Charles Ninneman, and William
Rusch, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole,
in the manner set forth under "The Remedy" above, for any
loss of pay they may have suffered by payment to each of them
of a sum of money equal to the amount each normally would
have earned as wages from the date of the respective discrimi-
nations against theml0 to the date Respondent unconditionally
offers to reinstate them, less his net earnings during said
period.
(c) Upon request, make available to the National Labor
Relations Board, or its agents , for examination and copying,
all payroll records, social-security payment records, time-
cards, personnel records and reports, and all other records
necessary for a determination of the amounts of back pay due
and the right of reinstatement under the terms of this Order.
(d) Post at its plant at Wausau, Wisconsin, copies of the
notice attached hereto and marked "Appendix A."it Copies of
said notice, to be furnished by the Regional Director for the
Eighteenth Region, shall, after being signed by Respondent's
representative, be posted by Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Eighteenth Region,
in writing, within ten (10) days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that the Respondent
has violated (1) Section 8 (a) (5) of the Act, (2) Section 8 (a)
(3) and (1) of the Act by locking out its employees on February
28, 1952, (3) Section 8 (a) (3) and (1) of the Act by discharging
20 Kalinke and Schoeman. March 14. 1952; Hoeft, March 18, 1952; Rusch and Detert, March
19, 1952; Ninneman, March 20, 1952.
21 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
MARATHON ELECTRIC MFG. CORP. 1 185
the 62 employees listed in Appendix B of the Intermediate
Report, and (4) Section 8 (a) (3) and (1) of the Act by failing
and refusing to recall and reinstate the 105 laid-off employees
listed in Appendix C of the Intermediate Report.
Member Rodgers took no part in the consideration of the
above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify
our employees that:
WE WILL NOT assist, contribute support to, or in any
other manner interfere with the formation and administra-
tion of, Local 1791, IBEW, or of any other labor organization
of our employees.
WE WILL NOT recognize said Local 1791, or IBEW,
as the representative of any of our employees, for the
purpose of dealing with us concerning grievances, labor
disputes, rates of pay, wages, hours of employment, or
other conditions of employment, and we will cease giving
effect to the contract entered into with Local 1791 on or
about August 29, 1952.
WE WILL NOT discourage membership in Local 1113,
UE, by discharging or refusing to reinstate any of our
employees or in any other manner discriminating against
them in regard to hire or tenure of employment or any
term or condition of employment.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist Local 1113, UE, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid and
protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8
(a) (3) of the Act.
WE hereby withdraw recognition from Local 1791 and
IBEW as the representative or representatives of our
employees for the purpose of dealing with us concerning
grievances, labor disputes, rates of pay, wages, hours of
employment, or other conditions of employment, and we
hereby cancel and terminate our contract with said Local
1791, dated on or about August 29, 1952.
1 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Gertrude Schoeman, Lois Ann
Kalinke, Edward Detert, William Rusch, Charles Ninneman,
and Robert A. Hoeft, Sr., immediate and full reinstatement
to their former or to substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges , and make them whole for any loss of pay they
may have suffered by reason of the discrimination against
them.
MARATHON ELECTRIC MFG. CORP.,
Employer.
Dated ................ By....................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
These proceedings, brought under Section 10 (b) of the National Labor Relations Act as
amended (61 Stat 136), and consolidated by order of the Regional Director, were heard in
Wausau, Wisconsin, on October 20-30, 1952, inclusive, pursuant to due notice All parties were
represented by counsel and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce relative evidence, to argue orally, and to file briefs and
proposed findings and conclusions Briefs have been filed by the General Counsel, by Re-
spondent Company, and by Respondent Union.
The complaint, issued on August 27, 1952, by the General Counsel of the National Labor
Relations Boards and based on charges filed by UE and served on the Respondents, alleged in
substance that Respondent Company had engaged in unfair labor practices proscribed by
Section 8 (a) (1), (2), (3), and (5) of the Act by:
(a) Discriminatorily locking out and discharging on February 28 and 29 all second- and
third-shift employees, all first-shift employees whose absences on February 28 were ex-
cused, and all employees who were in a layoff status, (b) discriminatorily canceling and ehm-
inating on or about February 29 all employee benefits then in effect pursuant to the existing
contract between Respondent and UE, (c) discriminatorily discharging Lois Ann Kalinke and
Gertrude Schoeman, on or about March 14, 1952; and constructively discharging, discrimina-
torily, Ed Detert, Sr., and Robert A. Hoeft on March 19, Charles Ninneman on March 20, and
William Rusch on March 21; (d) refusing on February 28, and since, to bargain with UE as the
exclusive representative of its employees in a specified appropriate unit, and specifically by
locking out and discharging the employees referred to in (a), supra, and by unilaterally
canceling, on or about March 5, the existing contract between the Respondent and UE, (e)
instigating, sponsoring, dominating, and interfering with the organization, formation, and ad-
ministration of Local 1791, IBEW, from on or about April 4, 1952, and thereafter, by specified
acts of assistance and support, and (f) engaging in other specified acts of interference,
restraint, and coercion, from on or about February 29, 1952, and thereafter
i The General Counsel and his representatives at the hearing are referred to herein as the
General Counsel and the National Labor Relations Board as the Board. Respondent Company
is referred to as Respondent and as Company; the Respondent Union as IBEW and as Local
1791; and the charging Union as UE and as the Union.
The summary of the pleadings hereinafter made includes various amendments made during
the course of the hearing. All events referred to herein occurred in 1952, unless otherwise
specified.
MARATHON ELECTRIC MFG. CORP. 1 187
Respondent denied by its answer the commission of all unfair labor practices charged
against it. With specific reference to the alleged refusal to bargain , Respondent pleaded that
on February 28, and since, the Union and its members engaged in a strike in violation of an
existing contract ; that substantially all of the employees participated therein ; that on or about
March 5 it discharged all employees who went on strike and that on or about that date it
canceled the contract because of the violation thereof and the violation of Section 8 (d) of the
Act by the Union and its members; and that thereafter Respondent refused to recognize the
Union or to bargain with it
IBEW, by its answer stated orally at the hearing , denied all allegations of the complaint
relating to unlawful assistance, support, and domination by Respondent.
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Wisconsin corporation, with ita principal office and a plant at Wausau, and
other plants at Erie , Pennsylvania, and Earlville , Illinois. It is engaged at its Wausau plant
(which is here involved) in the manufacture of electrical motors and generators. During the
calendar year 1951 it purchased raw materials costing in excess of $500,000, approximately
75 percent of which was from extrastate points. During the same period Respondent 's sales
exceeded $500,000, of which approximately 66 percent was made to extrastate points. Re-
spondent is engaged in commerce within the meaning of the Act.
IL THE LABOR ORGANIZATIONS INVOLVED
Local 1113, UE, and Local 1791, IBEW , are labor organizations which admit to membership
employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The evidence
1 Background ; synopsis of main events and issues
UE had been the recognized bargaining representative of the production and maintenance
employees of Respondent ' s Wausau plant since about 1937 , and Respondent and UE have been
parties to successive contracts. The last contract, dated July 31, 1951, for a 1-year term,
contained among other things a union-shop clause , a grievance and arbitration clause, and a
no-strike, no-lockout, clause, the latter of which provided that employees who took part in a
union-authorized strike would be subject to discipline or discharge, and that the Company
would not lock out the employees.
In February 1952, the plant was operating with approximately 480 employees on the first
shift (7 a m. to 3 p m.), 60 on the second shift (3 p m to 11 p m ), and 10 on the third shift
(11 p.m. to 7 a.m.). However, some first-shift employees worked until 3:30 p.m., and some
second-shift employees began work at 3:30 p.m.
As a result of certain disputes and unresolved grievances, the Union, after calling a full
membership meeting for February 28, staged a walkout at 2 p.m. that day in which all first-
shift employees on the job participated. However, approximately 35 first-shift workers were
absent at the time because they were on leave or because of illness or other excused absence.
Some of the second- and third-shift workers also attended the meeting, which was held at the
Youth Center, some 2 miles from the plant, and which got underway about 2:30 p.m
Respondent locked all plant entrances around 240 p.m. Approximately 20 second-shift
workers who went to the gates between 2:40 and 3 p.m. were unable to gain admittance.
Around 3 p m., the locking of the gates was reported to the union meeting, which was con-
cluded around 4 p m. with a direction from Emil Muelver, president of the local, that all em-
ployees were to report at their regular shift time and were to continue to report until
instructed to the contrary. The gates remained locked until March 18, with only watchmen
being admitted.
On February 29, Respondent sent to all employees on the payroll a letter discharging them
as participants in the walkout. On March 3, Respondent began advertising in the local news-
322615 0 - 54 - 76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paper for new employees; and beginning March 4, and continuing thereafter. UE set up and
maintained a picket line at the plant gates. On March 5, Respondent wrote all its employees
(except union officers, stewards, and committeemen) again notifying them they were discharged
and that it was canceling its contract with the UE and canceling its recognition of UE as the
bargaining agent of the employees. A letter containing similar advice was sent to the Union on
the same date.
On March 14, J. J. Wall, presidentofthe Respondent, discharged office employees Gertrude
Schoeman and Lois Ann Kalinke after a conversation concerning their husbands, who were
union adherents. On March 19 and 20, Respondent informed its four watchmen, who had worked
continuously, that they were required to fill out new applications, forfeit their seniority, and
cease their adherence to UE. The watchmen quit without complying. On March 18, Respondent
reopened its plant and has since continued operations on a limited basis . All employees who
returned to work were required to fill out new applications.
On or about April 3, and at a time when approximately 39 employees were employed, a
union movement began which finally resulted in the formation of Local 1791, IBEW, and in the
entering into a contract between it and Respondent. The General Counsel offered evidence of
various acts by which it is contended Respondent sponsored, assisted, and dominated the
formation and administration of that Local.
The principal issues in the case concern the legal effect of the lockout and of Respondent's
subsequent actions on the status of the second- and third-shift workers, of first-shift workers
who were absent on February 28, and of approximately 105 employees in an alleged layoff
status 2 Other important issues concern the question whether Respondent engaged in assist-
ance to and domination of Local 1791, IBEW, as charged in the complaint. Less important are
the issues concerning the discharge of the 2 office employees, the constructive discharge of
the 4 watchmen, and miscellaneous incidents of alleged interference, restraint, and coercion.
The evidence is not greatly in dispute as to the facts which are of chief significance to the
resolution of the main issues. Accordingly no effort is made herein to spell out in detail the
minutiae of the evidence. Suffice it to say that the findings made herein are based upon the
preponderance of the evidence on the record as a whole, and that testimony which is not recon-
ciliable with these findings has not been credited.
Before summarizing the evidence, it will be helpful to indicate the identity of Respondent's
various officials and supervisors whose names appear in the record: J. J. Wall, president;
John D Keuchle, manager of manufacturing; Richard Helmig, manager of manufacturing;
R W. Jones, controller , Harold W. Gaines, factory manager ; Walter Forcey, general foreman;
Ray Waldinger, Wilfred Rhyner, Harry Lindner, Edwin Kasten, and Betty Swanson, foremen.
In addition, Nurse Phyllis Webster performed certain personnel duties in connection with the
hiring of employees which rendered her Respondent' s agent in the incident surrounding the
alleged constructive discharges of the watchmen.
2 The walkout; the events which preceded it
For some time prior to February 27, Respondent and UE had had under discussion certain
grievances, as well as a dispute concerning an interpretation of the contract with respect to a
2-cent wage increase. That increase was a part of a larger increase provided for in the con-
tract, subject to such approval by the Wage Stabilization Board as might be necessary. It was
later determined that 7 cents of the increase could be put into effect under existing WSB regu-
lations without express approval, but that the remaining 2 cents would or might require
approval. A joint petition was filed with WSB but was withdrawn at the Union's request. UE
then took the position that the remaining 2 cents could be put into effect in the form of fringe
benefits without approval by WSB Respondent had that suggestion under consideration but had
given no answer prior to February 27.
Approximately a week prior to February 27, the Union held a membership meeting in which
it was voted to take a strike vote in case future dealings with the Company made one neces-
sary, and that fact became known to the Respondent.
Keuchle testified that on February 27, a routine meeting was held between Respondent and
the -UE committee in which a number of grievances were discussed, as well as the requested
2 The General Counsel excluded from his complaint all first-shift workers who partici-
pated in the walkout, conceding that Respondent was lawfully entitled to discharge them. See
e.g., National Electric Products Corp., 80 NLRB 995; Scullin Steel Co., 65 NLRB 1294; Joseph
Dyson & Sons, 72 NLRB 455.
MARATHON ELECTRIC MFG. CORP. 1189
2-cent increase Emil Muelver (president of Local 1113 ) did not testify as to occurrences at
that meeting Keuchle testified that during the course of the conference he informed the Union
what Respondent ' s answers were to various grievances , granting some and rejecting some, and
that he also then gave as Respondent ' s final answer that it would give the 2 - cent wage increase
only with WSB approval
On the morning of February 28, UE held a meeting of all officers and stewards to discuss
Respondent ' s action . It was voted to call a full membership meeting at 2 p in., if in the mean-
time no meeting could be arranged between the Company and the bargaining committee.
Shortly before noon Muelver called Keuchle (Keuchle's credited testimony) informed him that
in the meeting of union stewards it had been decided to inform the Company that it had until
1 p.m. to put into effect the 2-cent increase , or Muelver would not be responsible for the con-
sequences A few minutes before 1 p.m., Muelver called Keuchle again and inquired if there
had been any change in the Company's position about putting the wage increase into effect.
Keuchle informed him there had been no change.
In the meantime union stewards and committeemen notified all employees who were at work
of the impending walkout at 2 p. m., and of the membership meeting scheduled at the Youth
Center . The Union had also made, over the local radio station , several spot announcements of
the meeting. Sharply at 2 p. in., all employees stopped work , left the plant , and, with few ex-
ceptions , went to the meeting . No prior notice was given to the Federal Mediation and Con-
ciliation Service See Section 8 (d) (3).
No union officer, steward , or committeeman gave to any representative of management an
indication as to how long the work stoppage was to last, nor did Respondent have any informa-
tion on the subject at any time prior to the conclusion of the meeting at the Youth Center.
Muelver had informed Edwin Kasten, foreman of the foundry, around 1.30 p. in., that there
was no use to charge the cupola because there would be no one present to pour the iron, and
had also stated that " We can starve out in the street easier than we can in the shop." Some
of the employees , when walking out at 2 p . m., had made comments to supervisors to some
such effect as, "See you at Christmas," or "in 4 weeks," or "in 5 weeks," or "in 6 weeks";
but those remarks were obviously facetious , and therewas no evidence that any such remarks
were made by any official of the Union.
Respondent also offered the testimony of a number of employees to conversations with
Muelver and various union stewards which indicated that the Union was considering a walkout
of indefinite and possibly extended duration However, save for Muelver ' s remarks to Kasten,
there is no evidence that management had either knowledge or information of the Union's in-
tentions , save that it was staging a walkout of first - shift employees in order to hold a mem-
bership meeting . For that matter , it does not appear that at the time of the walkout the Union
had any formulated plan other than tohold a meeting and to decide therein what course to pur-
sue. Indeed . Respondent ' s brief quotes with approval testimony of a witness for the General
Counsel that the meeting was a " sort of a get together to decide what we were going to do",
and the brief makes the further observation that "it became obvious at the meeting that the
course to be pursued in the conduct of the strike would depend on developments."
3. The meeting; the lockout
The meeting at the Youth Center got underway around 2:30 p m. with Muelver presiding.
At approximately 2:40 p in ,3 Forcey and Lindner began locking the various employee en-
trances located some distance apart on three sides of the plant which occupied a tract of
several acres on the outskirts of Wausau. The watchmen were thereafter instructed not to
admit any of the plant employees.
Between 2:40 and 3 p.m. approximately 20 employees ( including Tom Powers, Robert
Millard , and Donald Streeter , second-shift stewards ) came to the entrances but were unable
to gain admittance Most of themthenwenton to the union meeting . Powers , who arrived there
at approximately 3 p m.,4 was immediately recognized and announced that " the gates are now
officially locked."
3 William Rusch's testimony. The time is fixed by various witnesses as from 2:20 to 2:45
p. m. Rusch's testimony corresponds closely with that of Walter Forcey, who admitted Rusch
to the plant, and with that of Tom Powers, who saw Rusch.admitted.
4 The time of Powers' arrival was variously fixed by witnesses. It is clear however from all
evidence that Powers had remained at the gates until a few minutes before 3, and that he could
not have arrived at the meeting prior to 3 p m, as he testified
1 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to Powers' announcement the discussions had proceeded on the assumption that a
strike was in progress and that it might be continued for some time. However, nothing was
decided as to how long either the walkout or the meeting would continue, though the suggestion
of Ruth Caron that any strike be delayed until the following week because of certain insurance
benefits was either talked down or bypassed There were discussions on the floor both before
and after Powers' announcement of the question of setting up picket lines and of arranging for
financial assistance to members but no motions were made and no action was taken. The
meeting concluded around 4 p.m. with the direction from Muelver that all employees were to
report for work on their regular shifts,5 and Muelver and the Union's bargaining committee
went to the plant for the reason , as Muelver testified, "We were going back to the Company as
soon as we adjourned the meeting and try to have a conference with them to get the issues
settled."
Thereupon Muelver and the union bargaining committee went to the plant and obtained
entrance through a lobby or office entrance which was not used by plant employees. They met
Forcey and asked to see Keuchle Forcey reported that Keuchle was not available and that
they would have to leave. Returning to the union office, Muelver called Gaines, the plant
manager, at his residence and informed him that the employees had been locked out during
a membership meeting, and Gaines agreed that he would contact Wall and see whether he
could get management and the Union together in negotiations again (Muelver's credited
testimony.) Muelver informed Gaines that he could be reached at the Union's office, but he
received no call.
4. The identity of the nonparticipants
The following first-shift employees were not at work on February 28, either because they
were ill, or injured, or on leave of absence, or for other excused absence: Cele Dreyer,
Martin Halkoski, Jr., 6 Randolph Westberg, Edward Bahr, Richard Isberner, Leonard Hall,
Lester Schalow, Felix Sobkowiak, Ella Tietz, Gerald Meverden, Mabel Koppa, Beatrice
Lemmer, Edward Wendorf, Walter Barnett, Mabel Kratwell, Fred Johnson, Mary Neumann,
Ada Lake, Ruth Schremp, Amanda Seubert, Verna Czojka, Rupert Sandholm, Herbert Fried-
rich, Herbert Lang, Harvey Nowacki, Hilda Lodholz, and Kenneth Borth. Milton Krenz and
Leon Kwarciany had completed their work shift at 1:30 p. in., and were therefore also
not participants in the walkout.
In addition, the following employees, who were at work that day, had been excused by their
foreman for various reasons and had left the plant prior to 2 p. in . Leonard Westberg,
Barbara Jones, Arthur Joss, Emil Schmidt, and Edward Gierszewski.
Leo Fahl should be included with the last group if it can be found that he obtained per-
mission to leave the plant at 2 p. m Fahl testified that around 11 a in he requested per-
mission from his foreman, Ray Waldinger to get off at 2 p. in., so that he might take his
wife to the hospital. Fahl testified that he went directly home and went on from there to the
hospital arriving shortly after 3 p. m. Waldinger denied that Fahl requested permission to
get off or that he mentioned his wife's condition Mrs. Fahl testified that her doctor had
directed her to report at the hospital at 4 p. m , and that she and her husband arrived
approximately at that time Her testimony is accepted. Since Fahl's shift ended at 3 p. m.,
there was obviously adequate time to have enabled him to accompany his wife to the hospital
had he worked until his normal quitting time Under all the circumstances it is found that
Fahl's testimony was tailored to an attempt to use his wife's operation as an excuse for
his participation in the walkout. His claim thathe sought and obtained Waldinger's permission
to leave at 2 p. m is not credited over Waldinger's express denial
The evidence establishes that a total of 54 second-shift employees were not present at the
time the first shift walked out at 2 p. m , but that fact does not establish, as the General
5 The evidence establishes that that direction was followed until it became obvious that the
entrances were to remain locked indefinitely.
6 Halkoski was injured on February 18 and was incapacitated for 10 to 12 weeks. He testified
that he held a telephone conversation on or about March 3 with nurse Phyllis Webster and with
J. J. Wall, in which, among other things, Wall allegedly told him that he was fired like all the
rest of the UE members. That testimony is not credited in view of denials by Webster and
Wall and the testimony of Lewis R. Metz (a disinterested witness) that in a conversation at
the hospital on or about April 1, Halkoski had stated that he had had no occasion to call Wall
or anyone else with the Company.
MARATHON ELECTRIC MFG. CORP. 1191
Counsel contends, that all of them were locked out by Respondent. This is so because many
of them had chosen, without knowledge of the walkout, to remain in attendance at the union
meeting beyond a time which would have enabled them to report for work at their normal
starting time. Thus, in view of the distance of the Youth Center from the plant, second-shift
employees who intended to report for work at 3 p. in would have left the meeting no later
than 2:45 or 2:50. But the evidence establishes , that prior to Powers ' announcement at
3 p. m., the gates were locked , no employees had left the meeting to go to work . It is clear,
therefore , that all second- shift employees who were then in attendance had elected to cast
their lot with their fellow employees on the first shift and had joined them in the walkout.
The evidence establishes that the following second-shift employees had endeavored to
report for work before 3 p. m, but were unable to gain admittance because the gates were
locked: Fred Carl, Lawrence Kasten, Walter Kell, Fred Hinzman, William Lambrecht,
George Arendsee, John Sloninski, Henry Swanson, Clifford Wardell, Leo Thomas, George
Coleman, and August Wiese.
In addition to the above, five other second-shift employees (Mike Ringewelski, William
Clawson, Walter Manecke, Rudolph Vondrasek, and William Vondrasek) were identified by
some of the witnesses as being in the immediate vicinity of one or the other plant entrances
before 3 p. m. However, except for William Clawson and Walter Manecke, the evidence does
not establish that those so identified had gone to the plant with the intention of reporting for
work.
The following five second - shift employees were not due to report to work until 3:30 p m..
Josef Kaczmarezyk, Edward Savana, Adolph Spak, John Szekereff, Jr., and Leroy Steffen.
The following third -shift employees were not due to report until 11 p m.: Harold Crooks,
Jr., Robert Bouvat, Leslie Dickinson, Roy Drumm, Ervin Eggebrecht, Edward Kurth, Joe
Olszewski, James Ryan, and Walter Woller. The locking of the gates, which became gen-
erally known by 3 p. in , rendered unnecessary and futile the reporting to work by these two
groups T Actually, a number of the third-shift employees went to the plant sometime before
their starting time and verified the fact that the gates were still locked.
Eliminated from the foregoing lists of nonparticipants are second-shift stewards Tom
Powers, Robert Millard, and Donald Streeter, 8 and third-shift steward Allen Smart, Jr.
The evidence establishes that all of them attended the morning meeting of stewards and
committeemen , they became, therefore , parties and privies to the decision to stage the
walkout.
Furthermore , the evidence establishes that though Powers , Millard, and Streeter were
in the vicinity of the gates when they were locked, they had no bona fide intention of re-
porting to work. Thus, as Millard admitted, it was understood at the morning meeting that
all employees were to attend the full membership meeting. It is incredible, in view of the
efforts the Union made to achieve that result, that the stewards would have been excused
from attendance. The evidence also shows that though Powers and Streeter both arrived
prior to the locking of the gates, they sat in their cars ( Powers at a place which was not
normally used for parking) and made no attempt to enter the plant . Powers had the same
opportunity for gaining entrance as Rusch, who was admitted in his presence. In attempting
to explain their failures to request admittance , Powers and Millard both used the identical
and wholly unpersuasive excuse, i. e., they were not on speaking terms with Forcey and
Lindner, respectively.
Under the circumstances, the testimony of the three second-shift stewards cannot be
credited that they intended to report for work. To the contrary, the inference is clearly
justified from the evidence as a whole that their presence near the gates , in line with tra-
ditional functions of union stewards, was for the purpose of attempting to shepherd into the
union meeting such second-shift employees as had not heard the news or as had reported
for work despite it. It is also a fair inference, despite Powers' denials, that his purpose was
also to report Respondent's actions to the membership meeting, since upon his arrival
there he was immediately recognized and made his "official" announcement that the gates
were locked.
7Ellis Canning Co., 76 NLRB 99, footnote 3; cf. H. N. Thayer Co , 99 NLRB 1122; Eagle-
Picher Mining & Smelting Co v. N L. R B., 119 F 2d 903 (C. A. 8); N. L. R B. v Sunshine
Mining Co., 110 F 2d 780 (C A 9); Daniel Hamm Drayage Co., Inc., 84 NLRB 458, enfd 185
F. 2d 1020 (C. A. 5); The Kellog Co., 94 NLRB 526; Aruthur G McKee & Co , 94 NLRB 399.
8 The elimination of Streeter renders unnecessary the consideration of certain evidence
relating to an alleged act of violence.
1 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
None of the employees in a layoff status were , of course , participants in the strike. Their
identities , so far as they can be ascertained from the record , were established by a list
compiled by George Lella (Respondent' s payroll supervisor), which covered employees who
were laid off from November 1951 through February 1952. Their names are listed in Appendix
C hereto.
5. All plant employees are discharged
For convenience there has been assembled in Appendix A copies of a series of Respondent's
letters to employees , the first four of which were published in a local newspaper, and a
series of ads similarly published , which establish the course of Respondent ' s actions in
relation to the plant employees and, to their bargaining agent , Local 1113. It is necessary
here to direct attention only to the more significant portions of their contents.
Respondent 's letter of February 29 was sent to all plant employees on the payroll on
February 28 but not to any employees in a layoff status . That letter stated, among other
things:
Since the action taken by the Union and its members Thursday afternoon was the second
such violation resulting from irresponsible leadership , the Company has no alternative
but to consider that all participants have forfeited any rights as employees and are
accordingly being removed from the Company payroll. This means that all employee
benefits such as group insurance , vacation plans, holiday pay plans , etc., are being
eliminated immediately.
Though Respondent ' s contentions at the hearing concerning the intent and the effect of that
letter were somewhat inconsistent and confused , 9 slight question remains in view of the
contention stated in its brief that "All employees did participate in [the strike]." That final
contention is compatible only with the view that the letter was intended as a discharge of all
plant employees. In any event, the employees (nonparticipants) testified consistently that they
considered the lockout and the letter as a discharge That their interpretation was the correct
one is evidenced by Respondent ' s subsequent letters and conduct as follows:
On March 5, Respondent wrote all plant employees (except union officers , stewards, and
commutteemen) informing them that because the Union had broken the contract by causing a
strike , it was canceling the contract and canceling its recognition of the Union as the bar-
gaining agent for all plant employees The letter also informed the employees that the
Union's action forced it to consider them as new employees and directed them to apply for
work as such.
On March 10 , Respondent again wrote all plant employees (except union officers , stewards,
and committeemen ) addressing the letter to them as "all former employees."
Upon reopening the plant on March 18 , Respondent adhered strictly to the policy stated
in its letter of March 5 , rehiring only on the basis of new applications and with the under-
standing that seniority would begin on that date . Indeed , it carried its policy to the extreme
of requiring new applications from the watchmen who had worked continuously during the
lockout, and by informing them that their continued employment was also to be conditioned
on ceasing their adherence to UE. See section 7. infra.
The evidence does not support the General Counsel 's contention that the laid-off em-
ployees were discharged . None of Respondent's letters were sent to laid-off employees, 10 and
the mere publishing of the letters and of the various advertisements did not constitute a
discharge as to them . The contents of the published material are, however , relevant to the
questions whether the laid-off employees were excused from applying for reinstatement
9 Thus, Respondent contended that the letter discharged only the "participants" in the walk-
out, but attempted no'explanation why the letter was sent to all plant employees in the face of
the fact that its attendance records easily enabled it to determine who had walked out at
2 p m. Nor was Respondent able to specify by what action it discharged employees who had
not actually participated in the walkout . Indeed, in discussing one such case, Respondent's
counsel made the novel argument that the nonparticipants, upon receivinv the letter of Feb-
ruary 29, in effect discharged themselves by considering themselves to be discharged and by
thereafter taking part in picket line and other strike activities on and after March 4.
10 The single instance of a letter received by Gerald Dickinson obviously constituted an
error.
MARATHON ELECTRIC MFG. CORP. 1193
and whether Respondent discriminated against them by failing to recall and reinstate them.
Relevant also to the determination of those questions (which are resolved at section B, 1, b,
infra) are the provisions of the contract , which insofar as material , may be summarized as
follows:
(1) Seniority was defined as the right of preference with reference to layoffs and rehiring
as measured by length of service , (2) seniority was maintained , in case of a layoff, for a
minimum period of 2 years ; (3) seniority would govern in all cases of layoff and rehiring if
the employee were reasonably capable of performing the job ; (4) the Company would notify
employees who were to return to work , and (5) employees on indefinite layoff , when so
notified , should report within specified periods
Although Lella testified, in identifying a list of laid-off employees which he had compiled,
that the list was used by Respondent to draw from as it needed help "as their seniority came
up," he explained on cross-examination that he had no connection with the recalling of em-
ployees or the making of replacements, and the list had not been used by anyone who did the
rehiring or recalling of employees.
6. The Kalinke-Schoeman discharge
Lois Ann Kalinke and Gertrude Schoeman were the wives of two first-shift employees who
were members of UE and who had participated in the walkout of February 28. As office
employees the wives were not within the unit represented by UE, and they were not members
of the Union.
On March 14, Wall called them separately into his office and discharged them under cir-
cumstances as follows:
Kalinke testified that Wall informed her, "You know you no longer have a job," because
"I understand your husband is in the picket line." When Kalinke affirmed the latter fact,
Wall continued that unless her husband returned to work the following Tuesday (March 18)
she would no longer have a job and he directed her to so inform her husband. Kalinke inquired
whether she should consider that day to be her last day of employment, and Wall agreed,
adding that he would mail her paycheck to her on Monday. During the course of the conver-
sation Wall also referred to the Union as "nothing but a bunch of Communists ." and stated
that he would move the plant out of town before he would bargain with Muelver
The interview with Schoeman was not substantially different . Wall informed her that she
was fired because she was supporting the picket line because her husband was on it. When
Schoeman inquired whether she should look for a different job or "wait until this is settled,"
Wall added that if her husband "comes through" on March 18, she could have her job, that it
depended on her husband coming in without the Union. Schoeman bid him goodbye, stating that
"I can ' t go out there and tell the people to come in , because that is not my business „
Wall also referred to Muelver as a Communist and told Schoeman that Muelver was not
going to continue to run the plant because he (Wall ) was going to move it out.
7. The constructive discharge of the watchmen
Robert A. Hoeft, Ed Detert, Sr., Charles Ninneman, and William Rusch were all employed
as watchmen , were included in the bargaining unit , and were members of the Union. They
worked throughout the period from February 28 through March 18, though they too had
received the discharge letters of February 28 and March 5. Beginning on March 18, the
four watchmen were informed by various representatives of management that their continued
employment was in effect contingent not only on abandoning their adherence to the Union, but
also was to be conditioned upon the signing of new applications and losing their previous
seniority.
Thus, Hoeft testified that on March 18 while he was in the office of Nurse Phyllis Webster,
Wall came in and inquired if he was a member of the Union . When Hoeft replied that his
dues were paid , Wall stated that Hoeft should sign one of the slips (applications for employ-
ment) on the nurse ' s desk, or else he was fired " as of now." Wall also stated that Muelver
and the other union officers would never be employed again, and that Hoeft should sign up
and stay on as a new employee.
Later in the day Gaines repeated the direction , stating that all employees had to sign new
applications and that Hoeft would have to start as a new employee so far as the Union was
concerned . Still later , Webster explained that "when you sign this slip you are not a member
of Local 1113 any more." When Hoeft questioned that statement , Webster called in Gaines
1 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Lindner, who confirmed it, and Gaines added that if Hoeft should attend union meetings
or pay union dues he was "through" as an employee.
Rusch testified that on March 19 Lindner informed him that he had to "register" with the
nurse's office if he wanted to continue on the job. Webster then explained that the signing of
the form which she presented to him meant that Rusch would not pay dues to the Union
or go on to the picket line'or attend union meetings, and that if he did so, he would,be fired.
Rusch inquired whether signing the form would also mean that he would not get his vacation
or insurance benefits and Webster affirmed, stating "No, not until we get a new union,
and it won't be UE either."
Detert testified that on the morning of the 19th, Lindner informed him that he had to sign
up as a new employee and that, "you can't belong to your union and work for Marathon at
the same time ... Besides that you can be only on one side of the fence or the other."
Ninneman testified that on March 20 Lindner sent him to Webster stating that she had
something for him to sign Webster informed him that by signing it he would become the same
as a new employee.
All four of the watchmen were under the impression that they had actually signed a new
application, and testified that shortly afterwards they decided not to accept continued employ-
ment on the conditions imposed by Respondent, that theyso notified Respondent, and thereupon
quit work Webster refuted their testimony as to the actual signing of the application forms,
but made no denial of the statements attributed to her nor of the statements attributed to
Wall, Gaines, and Lindner in her presence nor did any of the latter testify in denial of the
watchmen's testimony. Webster identified the forms which she prepared and presented to
three of the watchmen, admitted that a seniority date of March 18 was set up for them, and
that Gaines had informed her that the watchmen had to sign because the contract had been
broken, and that new seniority would be effective as of March 18
8. Miscellaneous incidents
The record contains undenied testimony that Wall, Tomek, and Rhyner made statements
subsequent to February 28 that Respondent would never deal with UE again or never permit
it in the plant again.
On April 4, Grant Oakes, secretary -treasurer of District 11, UE, endeavored to negotiate
with Wall a settlement of the dispute. Wall refused, stating that it was too late and that so
far as UE members were concerned, they would come back as individuals, if and when they
came back Wall also said that he did not intend to recognize UE, and that there was another
union he would recognize and that he could work with.
On or about April 9, a group of employees, which included Walter Kell, went to the plant
lobby to pick up their personal tools. While they were there, Wall came in, inquired whether
they were there to sign up, and stated, in effect, "You know every damn man of you is fired,
don't you."
There is also testimony by Leo Thomas and Bill Lambrecht (nonparticipants on the second
shift) that Rhyner solicited their return to work In doing so Rhyner informed Thomas that
Thomas would have to return as a new employee and without seniority, holiday or vacation
pay, or group insurance, and that all the employees could come back if they got rid of the
Union and its officers. In answering Lambrecht's inquiry about seniority rights, Rhyner
explained, "We have got another union in here now ... You have to start in as a new man and
you have to work your seniority rights up."
Muelver testified to a heated exchange with Wall on the picket line on June 20 in which
Wall allegedly acknowledged he was a "union buster" and stated that he would "break [the]
union if it is the last thing I will do " Wall admitted that he was called a union buster on the
occasion but denied that he threatened to "bust" the Union His denials are credited. Even
were Muelver's version accepted it is doubtful that his testimony would support a finding
that Wall's responses were coercive, since they had been clearly provoked by prior abusive
statements by persons on the picket line.
August Wiese, a second-shift employee, had been confined to a hospital from February 19
lo March 5, and he continued under a doctor's care until April 1 He received the discharge
letters of February 29 and March 5 Late in August, Wiese and Detert, Sr., having received
copies of Respondent's letter of August 27 (see Appendix A), went to the plant, talked with
Gaines and Helmig, and sought reinstatement They were informed that they could only
return to work by signing up as new employees and by forfeiting their seniority, and that
they would have to forget all about the UE and join the new union
MARATHON ELECTRIC MFG. CORP. 1195
9 Assistance, support, and domination"
The plant reopened on March 18 with 17 employees, and by April 4 the number had in-
creased to 39 On April 3 a committee of the new employees met with Gaines, claimed to
represent a majority of the employees, and demanded bargaining rights for the committee.
The committee also stated its desire to organize a union. Games stated that he saw no
objection to a union so long as the committee would "come up with a satisfactory union,"
and then called Wall. Wall came in shortly, accompanied by Tomek, Respondent's local
counsel, and Jones, Respondent's controller The committee then repeated its claims.
Though Wall questioned it as to its authority to act for the employees, the committee sub-
mitted no written authorizations and was not requested to submit any. However, Davis
testified that Wall agreed to recognize the committee as the representative of the em-
ployees,72 and stated also if it found "a satisfactory union" he saw no reason why he
could not "go along" with it.
Shortly after the conclusion of the meeting, Tomek advised Davis that Collins, a repre-
sentative of 1BEW (1 of 3 unions Davis had mentioned which the committee was consider-
ing), was in a nearby town Crocker then called Collins and arranged for a meeting that
evening at the Wausau Hotel with a group of employees. Temporary officers were elected
at the meeting and Collins distributed application cards with the advice that the signed
cards should be returned to him with $1.50, covering initiation fees.
The cards were distributed on company property and mainly on company time the next
morning and 39 signatures were obtained. Davis and Crocker also met with Jones, informed
him that the employees were organizing into IBEW, and requested the Company to advance
the employees $3 each to cover initiation fees and the first month's dues. After checking
with Wall, Jones announced that Respondent would grant the request if each employee would
sign a written authorization. Crocker thereupon typed up during working hours a stencil
on one of Respondent's typewriters and delivered it to Davis who had the stencil run off on
Respondent's duplicating machine Thereupon, the dues authorization cards were circulated
and the signatures of employees obtained also during worktime.13 The cards were then
turned in to Jones who procured from the payroll department the sum of $117 (39 x $3)
and delivered it to Davis. Davis in turn delivered half of the sum to Sloan, temporary treas-
urer, and took the other half, with Gaines' permission, on company time, downtown to
Collins who had stayed over to ascertain the results of the solicitation of membership.
On April 9, acceding to a request made upon Gaines the previous day by the plant com-
mittee, Wall wrote them formally recognizing IBEW as the bargaining agent of the production
employees and confirming an understanding that job rates would remain the same as of
February 28 Wall's letter also stated that "Questions of seniority, fringe benefits, etc.,
which were lost by the strike of February 28th will be taken up at a future session upon
request by your Union.- 14 (Emphasis supplied)
Between April 8 and June 9, though no formal meetings were held between management
and the plant committee, Davis and Sloan testified that various conferences (or "chin felts")
were held in which there were discussed questions of seniority, wage incentive plan, and
other grievances Sloan testified that she was paid for all time spent in all such meetings
from and after April 3
ti The evidence here summarized constitutes mainly a composite of the testimony of
Franklin Davis, Calvin Crocker, Adeline Ristow, and Myrtle Sloan, who were all officers of
Local 1791, IBEW
12 Gaines confirmed that testimony. Sloan testified also that Gaines at one time had advised
the committee orally that he recognized it.
13 It is obvious that Respondent was fully aware of the foregoing activities and that it
acquiesced in, if, indeed, it did not encourage, the use of company time and facilities therefor.
Aside from the fact that there were only a handful of employees at work at the time and that
they were all solicited twice, Jones had been fully informed of the activities and had himself
suggested the dues-advancement authorizations. Furthermore, Gaines expressly authorized
Davis' later use of company time to make the delivery of the cards and the money to Collins.
14Davis and Sloan also testified that in the conversation with Gaines, he had assured them
that employees who were hired or who returned to work on and after March 18 would have top
seniority. In fact, Respondent had so stated in letters to employees hired on and after March
18.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IBEW issued a charter to Local 1791 under date of June 1, and it was received by the Union
around June 4 Permanent officers were then elected consisting of Davis, president, Crocker,
vice president, Sloan, secretary, and Ristow, treasurer, and a demand was made for contract
negotiations On June 9, Wall wrote the Local referring to "our conference of April 8, 1952,"
and formally recognizing "IBEW (AFL) Local 1791 as the bargaining agent" for all production
employees There is no evidence that Respondent made any request that the Local submit
proof of a majority at that time, though Respondent had on file dues-deductions authorizations
from approximately 90 of 115 employees.
Negotiations began around the middle of June and were substantially concluded early in
August, though the contract was not signed until August 29, due to delay in procuring the
International's approval. There were approximately 10 to 12 bargaining meetings, most of
which were held during working hours The bargaining committee was paid for that time.
On or about July 11, the Local, claiming inability to procure a meeting hall elsewhere, 15
obtained Wall's approval to hold a meeting with the employees on company property. The
meeting lasted approximately 45 minutes, it was devoted to explaining to the employees various
types of insurance plans which Respondent had offered during the negotiations and to procuring
selection by the employees of the one they preferred The Respondent thereafter put the plan
into effect retroactively to July 10.
B. Concluding findings
1. Discrimination
a. The discharge of the nonparticipants in the walkout
All first-shift employees who participated in the walkout were excluded from the complaint,
the General Counsel conceding that Respondent was lawfully entitled to discharge them for
having violated the no-strike clause of the contract. The most important issues in the case
concern the legal effect of the locking of the gates and of Respondent's subsequent acts on the
status of the other plant employees, many of whom are found herein not to have participated in
the walkout (see section A, 4, supra
It is the General Counsel's contention that Respondent's actions constituted a lockout and
a discriminatory discharge as to all such plant employees, as well as to all employees in a
layoff status. Respondent contends that the locking of the gates did not constitute a lockout, that
it acted in exercise of legitimate managerial prerogatives in the face of a strike of indefinite
and prolonged duration; 16 that it discharged only the "participants" in the strike, and that all
of the employees had demonstrated that they were in fact participants by failing to report for
work pursuant to its letter of March 5, and by their actual participation in picketing and other
strike activities Respondent also argues that the Union's breach of the contract entitled it
to cancel the contract and its recognition of UE as the bargaining representative of the em-
ployees
The foregoing contentions require that consideration be given to the nature of the walkout
and of the lockout Certainly the walkout constituted a strike by all first-shift employees who
participated in it. It has also been found, contrary to the General Counsel's contentions, that
certain union stewards were, and that many of the second-shift employees became, partici-
pants in that strike The remaining plant employees have been found not to have participated in
the work stoppage; they were not on strike at any time prior to the locking of the gates or prior
to the conclusion of the union meeting and the committee's attempt to negotiate with manage-
ment for the return of the employees to work. As to the latter employees, Respondent's act
of locking the gates when it did bore the unmistakable indicia of a lockout. 17
15 That claim was singularly unimpressive in view of the argument in IBEW's brief that the
employees had chosen it because the AFL organization in Wausau was potent.
16Indeed, it is Respondent's contention that the strike is still continuing.
17 For a concise review of Board and court decisions on this subject, see Labor Law--
Legality of Employer's use of Lockout; Michigan Law Review, January 1953; 51:419-529; and
see Sixteenth Annual Report of the National Labor Relations Board (1951), pp. 175-7. The
present case is, of course, dissimilar to Morand Bros Beverage Co., 91 NLRB 409; 99 NLRB
1448 (on remand); Davis Furniture Co , 94 NLRB 279; 100 NLRB 1016; and Betts Cadillac
Olds, Inc., 96 NLRB 268, all of which involved multiemployer bargaining units.
MARATHON ELECTRIC MFG. CORP. 1 197
But Respondent contends (relying on Wall's testimony) that it acted on the belief that it was
faced with a prolonged strike and that it would not have been economically feasible for it to
have continued operations with the few "specialized employees" on the second and third
shifts The evidence fails to sustain that contention. As has been found under section A, 2,
supra, Respondent had no information, and no reason to assume, that the walkout would
continue for a longer time than necessary to hold the meeting, and this despite the fact that
discussions during the meeting prior to Powers' arrivalhad proceeded on the assumption that
a strike was in progress which might be continued for some time. Nor did Respondent know
at the time it locked the gates that the second and third shifts would not report in full force.
Indeed, Keuchle admitted that at the time the decision was made to shut down, Respondent had
no indication whether the second- and third-shift employees would or would not report, and
that if substantially all of them had reported, the shifts could have operated.
In short, when Respondent locked the gates, it could not reasonably have assumed either
that the second and third shifts would not report or that the first shift would not return at the
conclusion of the meeting. Stated differently, so far as Respondent knew at the time, all shifts,
beginning at 3 p. m., would be fully manned for continued operations. This was not, therefore,
a case where an employer was faced with the prospect of recurrent work stoppages which
would make further operations uneconomic, International Shoe Co., 93 NLRB 907, see Six-
teenth Annual Report, supra, p 175; nor did it appear , either at the time of the lockout or later,
that the strike action had made efficient operations impossible. Cf. Betts Cadillac Olds, Inc.,
supra.
Moreover, were it assumed arguendo that Respondent could have asserted that its ap-
praisal of the situation at 2:40 p. m was a reasonable one, its misapprehension would
plainly have become apparent to it shortly after 4 p m., when the Union's bargaining com-
mittee endeavored to confer with Keuchle, and later with Gaines and Wall, concerning the
termination of the strike and the return of the employees. In no event, therefore, could
Respondent justify the lockout beyond that time as to employees who had not participated
in the strike 18
It is speculative, of course, how long the strike might have continued and how many and
which employees might have joined in it had Respondent delayed the locking of the entrances
for a short time. 19 It is possible that tight union discipline would have enlisted the partici-
pation of all its members, with scattered exceptions. But Respondent's own precipitate act
precluded it from ascertaining either whether the first-shift walkout was a temporary
stoppage or how many of the second- and third-shift workers would loin the strike.
Nor does it avail Respondent to urge, as it does, that the Union deliberately staged the
walkout for the purpose of feinting it into countering with a lockout. 20 For there was no
compulsion upon Respondent to act hastily as it did, and inadvisedly, and apparently without
due counsel as to its rights in the premises. The explanation for its act, however, is clearly
indicated by the entire evidence surrounding its course of action: Respondent assumed
that because the work stoppage had been called by the Union in violation of the contract,
it was entitled to discharge all the employees who were represented by the Union, and it
wanted to prevent all of them from reporting for or returning to work while it availed itself
of the opportunity to effectuate the mass discharge. The text of the letters and of the ads,
is Whether Respondent was legally entitled to bar the reentry of the participants by lockout,
and whether, in any event, it could have done so beyond the conclusion of the work stoppage,
are questions which are not here involved.
19A delay of 20 minutes would have afforded Respondent a conclusive test of the intentions
of all second-shift workers. There would then have remained in doubt only the 10 third- shift
workers, of a total of some 550 employees.
2 Nor does the evidence establish that such was the Union's purpose, though it does suggest
that the Union's leadership had considered the possibility that Respondent would respond with
a lockout. Thus, Respondent had taken such action to counter a walkout some years previously,
and some of the employees had voiced predictions on the morning of the 28th that Respondent
would do so again. For example, Selma Stone testified that she predicted to steward Emily
Borth that Respondent would lock the gates again if the first shift walked out, and that Borth
replied that in that case "we don't have to strike." Martha Springer testified to making a
similar prediction to Muelver, who replied that in that case the Company also would be vio-
lating the contract. Furthermore, the nature of Powers' activities, and his "official" an-
nouncement, indicated that his assignment included reporting to the meeting Respondent's
anticipated counteraction, whatever form it might take.
1 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the various statements made by Respondent ' s officials and representatives , and the nature
of its rehiring practices all plainly support this conclusion
Regardless , however , of Respondent ' s right to discipline and to discharge all participants
in the strike, it was not entitled, either by contract or by law, to lock out or to discharge
the nonparticipants , or to visit upon them penalties of any kind for acts committed by other
employees There is nothing in the decided cases or in the legislative history of the Act
which suggests that acts of misconduct by some members of a union are imputable to other
innocent members See e.g , N. L. R. B. v. Deena Artware. Inc.. 198 F. 2d 645 (C. A. 6),
and cases there cited. 93 Cong. Rec 4022, 4435, 4765, 6530, 6858-9 Nor may individual
employees be found guilty of participation merely because they were members of the guilty
union which staged the walkout. Guilt by association is foreign to our system of jurispru-
dence ; to the contrary , it is established law that guilt is personal In labor disputes, the
responsibility of members of unions for unlawful acts of such unions is limited to the officers
or mei fibers who actually participate in the unlawful acts . N. L. R. B. v. Deena Artware,
Inc., supra; and see United Brotherhood of Carpenters v. United States, 330 U. S. 395, 403,
406-7.
Respondent ' s contention that it discharged only the " participants " in the strike has been
rejected under the summary of the evidence (section A, 5, supra . Respondent argues, on
an alternative basis, however, that the "nonparticipants " had also established the fact of
their participation in the strike by identifying themselves as participants upon receipt of the
February 29 letter , by thereafter failing to report for work pursuant to the March 5 letter,
and by their actual participation in picketing and other strike activities beginning on or
about March 4. That argument ignores the fact that the lockout and the letters constituted
a discharge of the employees in question and that there was in no case any obligation on
their part to apply for reinstatement in view of the illegal conditions which Respondent had
placed on their return to work , i. e., their rehiring as new employees , with loss of seniority
and other employee benefits, and the abandonment of their adherence to UE. H. N. Thayer
Co , 99 NLRB 1122; Sifers Candy C_ o , 75 NLRB 296, enfd. 171 F. 2d 63 (C. A. 10), Houston
and North Texas Motor Freight, 88 NLRB 1462, enfd. as mod., 193 F. 2d 394 (C. A. 5);
The Wallingford Steel Co , 53 NL 404, 422
Furthermore , following their lockout , the nonparticipants were entitled to participate in
concerted activities with other employees , and such participation on their part could not
constitute engaging in a strike 2i Thus , a strike is commonly defined as a combined effort
by a group of employees to withhold their services for the purpose of enforcing some demand.
Denver Building & Construction Trades Council (Gould & Preisner), 82 NLRB 1195, 1197.
But here Respondent ' s act , the locking of the gates , foreclosed those employees from tender-
ing and performing their services Aside from the foregoing , the strike by the participating
employees ended upon the conclusion of the meeting and upon the Union's attempt to confer
with Respondent ' s officials concerning the return of the employees.
For all the foregoing reasons, Respondent was not entitled to penalize the nonparticipants
in the strike by discharging them , by canceling as to them the contract and other employee
benefits, by canceling its recognition of UE as their bargaining agent , or by requiring as a
condition to their reinstatement applications as new employees and the forswearance of
adherence toUE. By said acts , Respondent discriminated against the employees whose
names are listed in Appendix B hereof to discourage membership in UE , and thereby engaged
in unfair labor practices within the meaning of Section 8 (a) (3) and (1).
b. The failure to recall and to reinstate the laid-off employees
It has been found that the laid -off employees were neither locked out nor discharged
The contract , however , accorded them seniority rights which entitled them to preference
in recall in case of rehiring. See section A, 5, supra Cf. Salant & Salant, 92 NLRB 417, 449
For the reasons stated in the preceding section hereof, Respondent was not entitled to
penalize those employees for acts committed by other employees or by the Union, by can-
aiEarly in the hearing the Examiner suggested to Respondent that it offer to amend its
answer in event ij was relying on picket line violence or other misconduct in bar of the remedy
of reinstatement as to any employee included in the complaint. Respondent thereafter made
such an amendment which related only to Donald Streeter , and the issue was fully litigated
at the hearing. Respondent did not either plead or offer evidence of misconduct by any of the
employees who are found herein to have been nonparticipants in the walkout.
MARATHON ELECTRIC MFG. CORP. 1 199
celing their contract rights and benefits , by canceling the recognition of the Union as their
bargaining agent, or by requiring them to apply for work as new employees , thereby for-
feiting the seniority rights which were expressly reserved to them in the contract. The
publication of Respondent ' s various letters and ads was plainly notice to them that Respondent
had resorted to such actions.
Furthermore , upon reopening the plant and commencing to rehire , Respondent was obli-
gated under the contract to recall the laid -off employees in the order of seniority Cf.
Salant & Salant , supra Even were the ads considered to be notice for them to return to work,
there was no obligation on their part to report or to apply for reinstatement in view of the
illegal conditions which Respondent had placed upon their rehiring . H. N. Thayer Co.,
supr , and other cases cited at p 1198 supra.
By failing to recall and to reinstate the laid-off employees , whose names are listed in
Appendix C hereof, and by conditioning their reinstatement upon their application as new
employees , Respondent discriminated against them to discourage membership in UE, and
thereby engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1).
c The discharge of the office employees
The testimony summarized in section A, 6, upra, plainly disclosed that Wall accused
Kalinke and Schoeman of aiding and supporting the Union through their husbands, participa-
tion in picket line activities Through the wives, Wall attempted to coerce the union-member
husbands into abandoning their concerted activities on behalf of the Union by coming through
the picket line and reporting to work when the plant reopened That such action by Respondent
was calculated to discourage membership in the Union is too obvious to require discussion.
The fact that the two office employees were not themselves union members is without sig-
nificance in view of their relationship to union members, 22 whose adherence to the Union
Respondent was seeking to end. For this reason it is not material, as Respondent argues,
that the husbands, having been lawfully discharged, were no longer employees. Furthermore,
Respondent's actions clearly disclosed that it was not only considering the husbands as
prospective applicants for reemployment, but that it stood ready to reinstate them upon
condition that they cease their adherence to the Union. Cf. Phelps Dodge Corporation v.
N. L. R. B., 313 U. S. 177; and see Section 8 (d)
It is, therefore, concluded and found that by discharging Kalinke and Schoeman, Respondent
discriminated against them to discourage membership in and adherence to UE, and thereby
engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1).
d. The constructive discharge of the watchmen
The evidence summarized in section A, 7, supr, establishes that Respondent conditioned
the continued employment of the watchmen upon abandonment by them of their adherence
and support to the Union, and that the signing of applications as new employees was to
represent their avowal of such forswearance It is well established that an employer may
not impose such unlawful conditions on continued employment. Hamilton-Scheu and Walsh
Shoe Co., 80 NLRB 1496 Pacific Plaster and Manufacturing Co., 68 NLRB 52, cf Polynesian
Arts, Inc., 100 NLRB 54`2; Carthage Fabrics Corporation, 101 NLRB 541. The watchmen's
act of quitting was, therefore, a constructive discharge which was plainly discriminator/.
It is, therefore, concluded and found that Respondent, by constructively discharging
Robert A. Hoeft, Ed Detert, Sr , Charles Ninneman, and William Rusch discriminated
against them to discourage membership in UE, and thereby engaged in unfair labor practices
within the meaning of Section 8 (a) (3) and (1).
2. The refusal to bargain
a. The appropriate unit; the Union's representative status
All of Respondent's production and maintenance employees employed at its Wausau plant,
excluding engineers, regular experimental testers, office and clerical employees, guards,
22 Fuchs Baking Co., 102 NLRB 1241; N. L. R. B. v. Stowe Spinning Co., 165 F. 2d 609, 614
enfg, as mod. 70 NLRB 614; Rome Specialty Co., 84 NLRB 55; Barr Packing Co., 82 NLRB 1;
Califruit Canning Co., 78 NLRB 112.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional and supervisory employees as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
By the contract of July 31, 1951, Respondent recognized the Union as the sole and exclu-
sive bargaining agent for all employees in the above unit. By the terms of the union-shop
clause all employees were required to become, within a specified period, members of the
Union and to remain members of the Union in good standing. Since, there is no evidence
that any exceptions were permitted, it must be presumed that on February 28 and 29 all
employees in the unit were members of the Union.
The issue remains whether the Union's majority status continued after the discharge of
February 29, and at the time of Respondent's letter of March 5, by which Respondent can-
celed the contract and canceled the recognition of Local 1113. That issue turns on the
question, determined above, of the status of the employees who are herein found to be
entitled to reinstatement. Respondent was lawfully entitled to discharge the four-hundred-odd
employees who participated in the walkout and who thereby lost their status as employees.
Section 8 (d). However, Respondent's unlawful discharge of the 62 nonparticipants did not
affect the status as employees of the latter group; they remained in and constituted the unit
of which the Union was the bargaining representative . Furthermore, the contract provisions
established that the 105 employees in a layoff status had not lost their status as employees.
They were entitled to be recalled and reinstated to the extent that they were needed to
replace the strikers whom Respondent had lawfully discharged.23
It is, therefore, concluded and found that on and after February 28, the Union continued
to represent a majority of the employees in the unit.
b. The refusal to bargain
Although the complaint alleges a refusal to bargain commencing on February 28, it is not
clear whether the General Counsel is contending that the refusal occurred before or after
the walkout. In any event, the evidence fails to support any contention that there was a
refusal to bargain before the walkout. And, of course, there was no obligation on Respondent's
part to bargain during the period of the walkout, Charles E. Reed & Co., 76 NLRB 548;
Higgins, Inc , 90 NLRB 184, at least with respect to matters related to the strike. Unit
Elastic Corporation, 84 NLRB 768 However, the strike was ended around 4 p. m. on Feb-
ruary 28, by the direction to all employees to report for work on their regular shifts and
by the Union's attempts through its bargaining committee to negotiate with management for
the employees' return to work after the lockout Under well-established principles, Re-
spondent's obligation to bargain thereupon became operative again, Higgins, Inc., supra
and cases cited, for unless the statutory duty to bargain collectively 'is held to remain in
force even after a labor contract has been broken, the purpose of the Act to promote indus-
trial peace through collective bargaining will be attained only in small measure. N. L. R. B.
v Highland Shoe, Inc , 119 F. 2d 218 (C. A. 1).
But Respondent ignored the Union's attempts to bargain on February 28, and subsequent
requests made in March and April It continued the lockout both as to participants and non-
participants in the strike, it discharged all employees, canceled the contract and all employee
benefits thereunder, and canceled its recognition of the Union as the bargaining representa-
tive of the employees. Assuming that Respondent were within its rights in treating its
contract with the Union as terminated, the existence of the strike did not relieve it of its
duty to bargain with the Union N. L. R. B. v. Highland Shoe, supra Since as found in the
preceding section, the Union's representative status continued after the termination of the
strike, Respondent's aforesaid acts clearly constituted a refusal to bargain, Higgins, Inc.,
supra ; Dorsey Trailers, Inc., 80 NLRB 478, 486.
23Upon the resumption of operations on March 18, there were obviously places available
for the laid-off employees in view of Respondent's lawful discharge of over 400 participants
in the walkout. Indeed, as late as June 25, Respondent's ad represented that 200 additional
employees were required.
24 It is suggested by some of the letters and ads, as well as by certain testimony in the case,
that Respondent's refusal to recognize UE any longer was motivated in part by a belief that
the Union was Communist- dominated. Such a charge by Respondent would seem to constitute
at best a belated afterthought in view of its long-standing relations with the Union and the fact
that it had signed a contract with it as late as July 31, 1951.
MARATHON ELECTRIC MFG CORP 1201
Respondent's subsequent acts emphasized its refusal to bargain and bore out statements
by Wall, by Tomek, and by Rhyner that Respondent would never deal with UE again. Those
acts included the forfeiting of seniority, the requirement of new applications, the require-
ment that the watchman renounce UE, the recognition of IBEW, and the various acts of
assistance and support to that Union as found herein
It is therefore concluded and found, on the basis of the entire evidence, that on and after
February 28, 1952, Respondent refused to bargain with UE, and thereby engaged in unfair
labor practices within the meaning of Section 8 (a) (5) and (1)
3 Assistance and support
The evidence summarized under section A, 9, infra, establishes that beginning on or about
April 4, Respondent assisted, sponsored, contributed support to, and interfered with the
organization, formation, and establishment of Local 1791, IBEW, by the following acts:
Permitting and encouraging solicitation on behalf of IBEW and of Local 1791 on company
time and property, permitting the holding of meetings of Local 1791 on company property;
contributing financial and other support through the advancement of funds to members and the
use of company facilities in the preparation of the dues authorizations, the payment of wages
to plant committee representatives and to representatives of the Local for time spent in
organizational activities on company property and in meetings with the Company, recoghizing
IBEW as bargaining agent on April 8, and Local 1791 on June 9, at times when said Unions
did not represent a majority of Respondent's employees and at times when Respondent was
not obligated to bargain with said Unions; and by entering into a contract with Local 1791
on August 29, 1952, and by including in said contract a clause insuring the Local's security
by requiring of Respondent's employees membership in said Union as a condition of em-
ployment. 25
The evidence does not support the General Counsel's contention that the Company also
dominated either Local 1791 or IBEW. As the Union's brief points out, evidence of domina-
tion here is substantially weaker than in Corning Glass Works 100 NLRB 444, Sunbeam
Corporation, 99 NLRB 546, and Meyer and Welch, Inc , 91 NLRB 1102, in all of which the
findings ere confined to unlawful assistance and support. See also Valentine Sugars, Inc.,
100 NLRB 248.
4 Interference, restraint, and coercion
By the following acts and statements ( in addition to those found above), Respondent inter-
fered with , restrained , and coerced its employees in the exercise of rights guaranteed them
in Section 7 of the Act, and thereby engaged in unfair labor practices within the meaning
of Section 8 (a) (1)•
Stating that it would not deal with UE or permit it in the plant again ; threatening to move
the plant rather than to deal with the Union , 26 soliciting employees to repudiate and abandon
the Union , and informing employees that as a condition of reinstatement or continued em-
ployment they would have to cease their support and adherence to UE and forfeit their
seniority rights and other benefits.
It is found , however , contrary to the General Counsel ' s contention that Respondent's
reference to Muelver as a Communist and to the local as Communist- dominated did not
constitute interference , restraint , or coercion , being privileged as free speech Section 8 (c),
Gazette Publishing Co., 101 NLRB 1694; Editorial " El Impartial ," 92 NLRB 1795, Joy
Silk Mills, Inc , 85 NLRB 1263, 1287, and cases there cited.
25 The provisos to Section 8 (a) (3) which authorize union-shop clauses specifically exclude
labor organizations which are unlawfully assisted, supported, or maintained by employers.
The evidence also establishes that the union-shop provisions were actually enforced.
Thus, Wiese and Detert were informed on August 29 that the contract was being signed that
day and that they would have to sign up as new members and in the new union.
26 Testimony of Kalinke and Schoeman, The General Counsel also claims as coercive the
following statement in the letter of March 10: "Maybe we will have to move some operations
to other cities." That sentence appears in a paragraph'which began with the statement that
Respondent was making no threat to move the plant away, and which discussed the difficulties
which Respondent anticipated in endeavoring to operate in the face of the alleged strike. The
quoted sentence, in its context, was clearly related to those difficulties.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in the case the
undersigned makes the following
CONCLUSIONS OF LAW
1 The activities of the Respondents set forth in section III, above, occurring in connection
with the operations of the Respondent Company set forth 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
thereof
2. Local 1113, UE, and Local 1791, IBEW, are labor organizations within the meaning of
Section 2 (5) of the Act
3 By interfering with, assisting, and contributing support to Local 1791, IBEW, Respondent
Company has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (2) and (1)
4 By discriminating in regard to the hire and tenure of employment of Lois Ann Kalinke,
Gertrude Schoeman, Robert A. Hoeft, Ed Detert, Sr., Charles Ninneman, and William Rusch,
and the 167 employees whose names are listed in Appendices B and C hereof, to discourage
membership in Local 1113, UE, Respondent Company has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
5 All of Respondent ' s production and maintenance employees employed at its Wausau
plant, excluding engineers , regular experimental testers, office and clerical employees,
guards, professional and supervisory employees as defined in the Act , constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act
6. At all times since July 31, 1951, Local 1113, UE, has been and now is the exclusive
representative of all the employees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act
7 By failing and refusing at all times since February 28, 1952, to bargain collectively
with Local 1113, UE , as the exclusive representative of the employees in the aforesaid unit,
Respondent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) and (1).
8. By interfering with, restraining , and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act. n
9. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[ Recommendations omitted from publication.]
27 The specific acts by which Respondent violated Section 8 (a) (1) are enumerated in section
B,4, hereof, and elsewhere in section B, and because of their breadth and variety, will not be
here repeated.
APPENDIX A'
Letter of February 29
At 2 P. M. on February 28, 1952 the factory employees of Marathon Electric Manufacturing
Corporation voluntarily left their jobs in violation of an agreement which was in existence
between the Union and the Company . This agreement provided that "THE UNION WOULD
NOT AUTHORIZE OR SANCTION ANY STRIKE, STOPPAGE, SLOWDOWN OR RESTRICTION
OF OUTPUT AND IN ANY CASE ANY SUCH ACTION SHOULD OCCUR, ANY OR ALL OF THE
EMPLOYEES TAKING PART WOULD BE SUBJECT TO DISCHARGE." Since the action taken
by the Union and it ' s members Thursday afternoon was the second such violation resulting
from irresponsible leadership , the Company has no alternative but to consider that all
participants have forfeited any rights as employees and are accordingly being removed from
the Company payroll This means that all employee benefits such as group insurance,
vacation plans, holiday pay plans , etc., are being eliminated immediately.
i The letters and ads set forth below all bore Respondent's name or signature, except that
the letter of March 10 bore Wall 's signature as president of Respondent.
MARATHON ELECTRIC MFG. CORP 1203
Since the present Union leadership has seen fit for the second time to dishonor written
agreements, the Company feels it useless to deal with any such representatives of the
employees The Company will only deal with responsible representative groups of employees
in the future.
Ad of March 3
HELP WANTED
WE ARE OPEN FOR HIRING FEMALE AND MALE EMPLOYEES FOR ALL TYPES OF
MACHINE WINDING AND ASSEMBLY OPERATIONS.
Apply Factory Employment Office.
There is a strike in progress with the United Electrical, Radio and Machine Workers of
America--Local 1113 You will note this is not C.LO. This union was thrown out from CIO
several years ago.
Letter of March 5
To our plant employees:
We regret very much that you are not at work. You are losing pay. We are losing business
and may lose customers By causing this strike, the union broke the contract and for that
reason we have:
1. Cancelled the union contract.
2 Cancelled our recognition of Local 1113 as the Bargaining Agent for our plant em-
ployees.
This letter is going to all employees on strike except -
1 All union officers
2 All union stewards
3 All union committeemen
We ask you to apply for work either at the Factory employment office or by telephone to the
Factory employment office As soon as a sufficient number have been hired, we will notify
you when the plant will be open for work, but we do not think we can plan on reopening
before Monday, March 10 There will be no reduction in wages and no change in present
employee benefits after the date of rehiring
You should know, that unfortunately, this union action forces us to consider everyone who is
rehired to be a new employee However, we may be able to restore seniority if later on
there is orderly collective bargaining, with a union which will act in a responsible way.
We want all of you to know that everyone who is rehired will be guaranteed security in his
or her job to the full extent of the Company's ability and with our full resources.
Letter of March 5 to Local 1113, UE
We hereby notify you that because of the breach of our contract with you dated July 31,
1951, we hereby cancel the contract.
All employees who have taken part in the strike are discharged under Article XII section 3
of the contract.
Therefore, you no longer represent a majority of our employees and we cannot continue to
recognize you as a Bargaining agent for our employees.
We will not rehire those employees of Local 1113 who are responsible for causing the breach
of the contract, who we now consider to be -
1 All union officers
2 All union stewards
3 All union committeemen
322615 0 - 54 - 77
12 04 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We will rehire all other employees who apply for work without discrimination . There will
be no reduction in wages and no change in present employee benefits after the day of re-
hiring.
When the plant is again in operation , and if demand for Union recognition is then made upon
us, we will try to have an election held by N.L.R.B. and will recognize any Union duly elected
in such election.
Letter of March 10
To all former employees of Marathon:
Having this plant shutdown again is the last kick in the face I am going to take.
Buck shut us down in 1951.
Muelver shut us down in 1946.
Muelver shut us down in 1952.
Each shutdown was in violation of a signed contract. Some have suggested that I try it again.
Well I'm not going to try it again . There is not a man or woman among you who want me to
open up this shop under the conditions that prevailed prior to the walkout of February 28.
There is no need for me to hash over a lot of the things that were going on in this plant.
Foremen were threatened , workers were terrorized . Grievances were faked , threats of
strike. - Why go over them . You all know them better than I do
Where are the he men that I used to battle about contracts and loved every minute of it.
Well they were all in the shop. You know them. You know what happened to them.
I'm not going to make any threats about moving away. I am going to run this plant . Muelver
ran it for the past six years Now I'm running it. We are going to open up. Maybe our crew
will not be very big. Maybe we will have to move some operations to othercities . We will
lose many valuable customers . We will lose a lot of money . Maybe we will go broke.
It has been said I 'm a man of my word Well folks my word is that Muelver and his gang
will never work here again.
Ad of March 17
Dear Ladies and Gentlemen:
In order that you have no tmsunderstanding:
1 We are taking applications from those who wish to work except former union officers,
union stewards and all union committeemen.
2 The factory is open for work starting Tuesday, March 18th , at 9:00 A.M.
3 Those employees accepted for work will be on a permanent basis as long as the factory
is in Warsau and these employees will have top seniority When you come to work we will
confirm and guarantee your seniority and live up to our agreements
Letter of March 19
Dear Ladies and Gentlemen:
Our plant opened for work on Tuesday , March 18th. We now have employees working in our
factory . Hours of work 8:00 A. M. to 4 . 30 P. M.
We agree that some former employees are on the picket line but this should not stop you, if
you want to work As stated in our Help Wanted Ad " If you do not wish to walk across the
picket line , please call us and we will provide transportation."
Those employees accepted for work will be on a permanent basis as long as the factory is
in Wausau . When you come to work we will conform and guarantee your seniority in writing
and we live up to our agreements.
We will expect to hear from you.
Ad of March 22
We do not wish to fight our case in the newspaper, but because of many requests we will
state our case once more.
MARATHON ELECTRIC MFG. CORP. 1205
1. Emil Muelver and his henchmen will not be re-employed by Marathon Electric.
2. We are not fighting unions but we must have a union which has an established
reputation of living up to their agreements.
3 Under the conditions existing for the past ten years, we cannot guarantee ship-
ments which hold good customers.
4. We opened our plant on March 18th. Some people came to work and the crew is
increasing each day. Don ' t miss the boat
Ad of June 25
ANOTHER RED HERRING"
Our plant opened March 18th with 10 employees ; we now 150 production employees.
Our present production employees are represented by the International Brotherhood of
Electrical Workers, A. F. of L.
That union has asked us to negotiate with them for these employees and we are negotiating
with them.
Three of the top national officers of the United Electrical Radio and Machine Workers are
alleged to be Communists in a recent issue of a magazine of general circulation and listed
as among the " 10 most dangerous" to our country.
We believe we are acting to protect the best interests of America , the country we love,
when we refuse to negotiate with this union.
Former employees are jeopardizing their chances of reemployment by being identified with
the UE.
Our plant is running. We are making motors . Our employees are represented by IBEW
(A F of L). Only 200 additional employees are required.
Letter of August 27
This letter is being written to our employees who were on the second and third shifts or
were absent for any reason from the first shift on February 28, 1952.
On that date Local 1113 called a strike at our plant which began at 2 P. M.
On February 29th we gave notice that all "participants " in this strike forfeited their
right as employees.
On March 5th we cancelled the collective bargaining contract with Local 1113 because of
the union 's breach of contract in calling the strike . On the same day we requested all em-
ployees on strike , excepting union officers , stewards and committeemen , to apply for work
in person or by telephone, and notified you that the plant would be open for work when a
sufficient number of employees had been hired.
The claim recently has been made that Second and Third Shift employees did not participate
in this strike . If you did not participate in the strike when it began or were not on strike
when you received the letters of February 29th or March 5th, you should have so notified us
promptly after receiving these letters and you should have reported for work in accordance
with our letter of March 5th. You did not do so. You have never contacted us in any way since
you received your letters Your failure to report for work or to answer our letters indicated
to us that you concurred in the action of Local 1113 and were a participant in the strike.
If this is not the case and you were not a striker, you have never so advised us.
You know that our plant has been operating ever since March 18, 1952, and that ever
since we have been advertising for help . You have never reported for work.
We want additional help in the plant and will sure put you on the job if you report for work.
APPENDIX B
George Arendsee Harold Crooks, Jr. Martin Halkoski, Jr. Lawrence Kasten
Edward Bahr Verna Czojka Leonard Hall Walter Kell
Walter Barnett Leslie Dickinson Fred Hinman Mabel Koppa
Kenneth Borth Cele Dreyer Richard Isberner Mabel Kratwell
Robert Bouvat Roy Drumm Fred Johnson Milton Krenz
Fred Carl Ervin Eggebrecht Barbara Jones Edward Kurth
William Clawson Herbert Friedrich Arthur Joss Leon Kwarciany
George Coleman Edward Gierszewski Josef Kaczmarezyk Ada Lake
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Lambrecht Joe Olszewski John Sloninski Clifford Wardell
Herbert Lang James Ryan Feliz Sobkowiak Edward Wendorf
Beatrice Lemmer Rupert Sandholm Adolph Spak Leonard Westberg
Hilda Lodholz Edward Savanna Leroy Steffen Randolph Westberg
Walter Manecki Lester Schalow Henry Swanson August Wiese
Gerald Meverden Emil Schmidt John Szekereff, Jr. Walter Woller
Mary Neumann Ruth Schremp Leo Thomas
Harvey Nowacki Amanda Seubert Ella Tietz
APPENDIX C
List of Laid-off Employees
Theresa Feltz Clara Christianson Anne Louze Emma Knipple
Virginia Jostueski Mildred Krueger Leone Kraucyk Gerald Dickenson
Lorraine Zastrow Francis Myszka Theresa Kappa Roger Krause
Esther Grosskreutz Marcella Kappa Elizabeth Wiesneski Clifford Rassmussen
Belle Almlie Gladys Stahel Elaine Von Kanel George Ketchum
Lorraine Amlie Jennie Grenier Louise Christianson Alan Hettinga
Phyllis Eschenbach Mae Wesco Adeline Olson Franklin Krahl
Esther Porzorski Violet Nimz Esther Eggebrecht Celand Zeureit
Virginia Schultz Margaret Dehnel Arletta Wyro George Schoeder
Uldine Grosskreutz Margaret Drews Martha Westberg Raymond Grell
Verna Kalbes Adeline Draeger Lorraine Beyer Charles Klein
Clara Delikowski Ruth Radtke Violet Grulkowski Emory Sickler
Marie Duscher Antoinette Engstrom Hazel Hildebrandt Andrew Wanta
Mary Rubow Irene Bolz Anne Petzold Arnold Sorges
Esther Detert Dorothy Sturm Alice Homers Cecil Bacon
Mildred Knapp Katherine Wolfe Viola Schultz Arthur Gurelski
Beverly Bemis Geneveive Zastrow Marcella Nowak Steve Jolkoweiz
Leone Priebe Adeline Ristow Pat Witter Wilmer Krueger
Valeria Schumacher Leona Anklam Sylvia Rux Louis Souter
Josephine Ringwelski Mabel Andreski Florence Hoffman Marvin Sigmund
Bernice Scutkowski Helen Schaepke Elsie Koskey Wallace Oelke
Irma Lodholz Esther Thiel Myrtle Bielen George Smart
Eleanor Bielke Eleanor Urbanski Joyce Nienow Roman Schara
Elsie Borkenhagen Mae Kukulka Margaret Kappa Ervin Goetsch
Leona Jurkowski Francis Sickler Jane Smart Martin Teelas, Jr
Regina Schnelle Marie Reik Elaine Roloff Philip Flory
Veronica Mirek
APPENDIX D
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT assist , contribute support to , or in any other manner interfere with
the formation and administration of Local 1791 , IBEW, or of any other labor organization
of our employees.
WE WILL NOT recognize said Local 1791, or IBEW, as the representative of any of
our employees , for the purpose of dealing with us concerning grievances, labor disputes,
rates of pay , wages, hours of employment , or other conditions of employment, and we
will cease giving effect to the contract entered into with Local 1791 on or about August
29, 1952
WE WILL NOT discourage membership in Local 1113, UE , by discharging or refusing
to reinstate any of our employees or in any other manner discriminating against them
in regard to hire or tenure of employment or any term or condition of employment.
MARATHON ELECTRIC MFG CORP. 1207
WE WILL NOT in any manner interfere with, restrain , or coerce our employees in
the exercise of their rights to self-organization , to form labor organizations , to join
or assist Local 1113, UE, or any other labor organization , to bargain collectively through
representatives of their own choosing and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid and protection , and to refrain
from any or all such activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
WE HEREBY withdraw recognition from Local 1791 and IBEW as the representative
or representatives of our employees for the purpose of dealing with us concerning
grievances , labor disputes , rates of pay, wages , hours of employment , or other conditions
of employment , and we hereby cancel and terminate our contract with said Local 1791,
dated on or about August 29, 1952
WE WILL offer to the 173 employees whose names are listed below immediate and full
reinstatement to their former or to substantially equivalent positions , without prejudice
to their seniority and other rights and privileges , and make them whole for any loss of
pay they may have suffered by reason of the discrimination against them:
George Arendsee Verna Kalbes Walter Woller Antoinette Engstrom
Edward Bahr Clara Delikowski Gertrude Schoeman Irene Bolz
Walter Barnett Marine Duscher Ed Detert, Sr. Dorothy Sturm
Kenneth Borth Mary Rubow William Rusch Katherine Wolfe
Robert Bouvat Esther Detert Leone Kraucyk Geneveive Zastrow
Fred Carl Mildred Knapp Theresa Kappa Adeline Ristow
William Clawson Beverly Bemis Elizabeth Wiesneski Leona Anklam
George Coleman Leone Priebe Elaine Von Kanel Mabel Andreski
Harold Crooks, Jr Valeria Schumacher Louise Christianson Helen Schaepke
Verna Czojka Josephine Ringwelski Adeline Olson Esther Thiel
Leslie Dickinson Bernice Scutkowski Esther Eggebrecht Eleanor Urbanski
Cele Dreyer Irma Lodholz Arletta Wyro Mae Kukulka
Roy Drumm Eleanor Bielke Martha Westberg Francis Sickler
Ervin Eggebrecht Ada Lake Lorraine Beyer Marie Reik
Herbert Friedrich William Larnbrecht Violet Grulkowski Jane Smart
Edward Gierszewski Herbert Lang Hazel Hildebrandt Elaine Roloff
Martin Halkoski, Jr Beatrice Lemmer Anne Petzold Emma Knipple
Leonard Hall Hilda Lodholz Alice Homers Gerald Dickenson
Fred Hinzman Walter Manecki Viola Schultz Roger Krause
Richard Isberner Gerald Meverden Marcella Nowak Clifford Rassmussen
Fred Johnson Mary Neumann Pat Witter George Ketchum
Barbara Jones Harvey Nowacki Sylvia Rux Alan Hettinga
Arthur Joss Joe Olszewski Florence Hoffman Franklin Krahl
Josef Kaczmarezyk James Ryan Elsie Koskey Celand Zeurert
Lawrence Kasten Rupert Sandholm Myrtle Bielen George Schoeder
Walter Kell Edward Savanna Joyce Nienow Raymond G rell
Mabel Kappa Lester Schalow Margaret Kappa Charles Klein
Mabel Kratwell Emil Schmidt Elsie Borkenhagen Emory Sickler
Milton Krenz Ruth Schremp Leona Jurkowski Andrew Wanta
Edward Kurth Amanda Seubert Regina Schnelle Arnold Sorges
Leon Kwarciany John Sloninski Veronica Mirek Cecil Bacon
Lois Ann Kalinke Feltz Sobkowiak Clara Christianson Arthur Gurelski
Robert A. Hoeft Adolph Spak Mildred Krueger Steve Jolkoweiz
Charles Ninneman Leroy Steffen Francis Myszka Wilmer Krueger
Theresa Feltz Henry Swanson Marcella Kappa Louis Souter
Virginia Jostueski John Szekereff, Jr Gladys Stahel Marvin Sigmund
Lorraine Zastrow Leo Thomas Jennie Grenier Wallace Oelke
Esther Grosskreutz Ella Tietz Mae Wesco George Smart
Belle Aimlte Clifford Wardell Violet Nimz Roman Schara
Lorraine Aimlte Edward Wendorf Margaret Dehnel Ervin Goetsch
Phyllis Eschenbach Leonard Westberg Margaret Drews Martin Teelas, Jr.
Esther Prozorski Randloph Westberg Adeline Draeger Philip Flory
Virginia Schultz August Wiese Ruth Radtke Anne Louze
Uldine Grosskreutz
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively upon request with Local 1113, UE, as the exclusive
representative of all our employees in the bargaining unit described below , with respect
to rates of pay, wages , hours of employment and other conditions of employment and if
an agreement is reached embody such understanding in a signed contract . The bargaining
unit is:
All our production and maintenance employees employed at our Wausau plant . exclud-
ing engineers , regular experimental testers , office and clerical employees , guards,
professional and supervisory employees as defined in the Act.
MARATHON ELECTRIC MFG. CORP.,
Employer.
Dated ................ By............................................................................................. .
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
CROWELL CARTON CO. and UNITED PAPER WORKERS OF
AMERICA, CIO, Petitioner and INTERNATIONAL PRINTING
PRESSMAN AND ASSISTANTS UNION OF NORTH AMERICA,
LOCAL 557, AFL. Case No. 7-RC-2130. September 29, 1953
DECISION AND CERTIFICATION OF REPRESENTATIVE
On May 6, 1953, pursuant to a stipulation for certification
upon consent election executed between the Petitioner, Inter-
venor, and Employer, on April 24, 1953, an election by secret
ballot was conducted under the direction and supervision of
the Regional Director for the Seventh Region. At the conclusion
of the election, the parties were furnished with a tally of
ballots' which showed that of approximately 92 eligible voters,
85 cast ballots, of which 39 were for the Petitioner, 37 were
for the Intervenor, and 9 were challenged.
As the challenged ballots were sufficient in number to affect
the results of the election, the Regional Director investigated
the challenges and on July 17, 1953, issued and duly served
upon the parties his report on challenges, in which he recom-
mended that the challenge to one ballot be overruled and the
challenges to the remaining ballots sustained. As the over-
ruling of only one challenged ballot could not affect the results
of the election, the Regional Director recommended that the
Board certify the Petitioner as representative of the employees
I The Intervenor in its exceptions to the Regional Director's report on challenged ballots
states that "the tally of ballots was not served upon counsel of record for the Intervenor
up to this date." There is no evidence however that the tally was not furnished the parties,
inasmuch as the exhibits show that the Intervenor was represented by its authorized observer
who acts as its agent in the election proceedings. See Plainfield Courier-News Co., 97 NLRB
260..
106 NLRB No. 203.