Marathon Rubber Products Co.

National Labor Relations Board - Board Decisions

Dec 19, 1938

10 N.L.R.B. 704 (N.L.R.B. 1938)

In the Matter Of MARATHON RUBBER PRODUCTS Co. and FRANK REINDL
and EMMA REINDL, HIS WIFE
In the Matter Of MARATHON RUBBER PRODUCTS CO., RESPONDENT and
AMALGAMATED CLOTHING WORKERS OF AMERICA- -
Cases Nos. C-406 and C-407.-Decided December 19, 1938
Rubberized Garments Manufacturing Industry-Interference, Restraint, and
Coercion: statements to employees antagonistic to labor organizations; threats to
close plant if employees joined national affiliated union ; encouragement of mem-
bership in unaffiliated union ; questioning employees concerning union activities ;
signifying to employees approval of unaffiliated union and opposition to na-
tionally affiliated union, by permitting employees during working hours to seek
legal advice concerning formation of unaffiliated union-Discrimination: dis-
charges; charges of, sustained as to one person, not sustained as to three per-
sons-Reinstatement Ordered: discharged employee-Back Pay: awarded, to
discharged employee ; monies received by employee for work performed upon
Federal, State, county, municipal, or other work-relief projects to be deducted
and paid over to agency which supplied funds for said projects.
Mr. Morris L. Forer, for the Board.
Gorman & Park, by Mr. E. P. Gorman, of Wausau, Wis., for the
respondent.
Mr. Walter A. Graunke, of Wausau, Wis., for Frank Reindl and
Emma Reindl.
Mr. Bernard W. Freund, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On May 25, 1937, Walter Polakowski, field organizer for the Amal-
gamated Clothing Workers of America, herein called the Amalga-
mated, filed with Nathaniel S. Clark, Regional Director for the
Twelfth Region (Milwaukee, Wisconsin), a charge alleging that
Marathon Rubber Products Co., Wausau, Wisconsin, herein called
the respondent, had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On June 29, 1937, Frank Reindl
10 N. L. R. B., No. 59.
704
DECISIONS AND ORDERS 705.
and Emma Reindl filed with the Regional Director a charge, and on
November 27, 1937, filed an amended charge, alleging that the re-
spondent had engaged in and was engaging in unfair labor practices.
affecting commerce within the meaning of Section 8 (1) and (3) and'
Section 2 (6) and (7) of the Act. On November 29, 1937, the Na-'
tional Labor Relations Board, herein called the Board, acting pur-
suant to Article II, Section 37 (b), of National Labor Relations
Board Rules and Regulations-Series 1, as amended, ordered that the
two cases be consolidated for the purpose of hearing.
Upon the above charges, the Board, by the Regional Director, issued
its complaint, dated November 30, 1937, against the respondent, alleg-
ing that the respondent had engaged in and was engaging in unfair,
labor practices affecting commerce within the meaning.of Section 8
(1) and (3) and Section 2 (6) and (7) of the Act. Copies of the
complaint, accompanied by notice of hearing, were duly served upon
the respondent, Frank Reindl and Emma Reindl, and Rubber and-
Woolen Workers Union, Local No. 20617, herein called the Rubber
Workers Union.
The complaint alleged in substance (1) that the respondent-dis-
criminated in regard to hire and tenure of employment by discharg-
ing and refusing to reinstate Doris Stubbe because of her activities in
behalf of the Amalgamated and by discharging and refusing to rein-
state Frank Reindl and Emma Reindl because of their activities in
behalf of the Rubber Workers Union, thereby discouraging member-
ship in a labor organization; (2) that the respondent coerced, intim-
sidated, and threatened its employees to prevent them from becoming
and remaining members of the Amalgamated and of the Rubber
Workers Union ; and (3) that, by the foregoing acts, the respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act. On December 7,
1937, the respondent filed an answer to the complaint, denying that,
it had engaged in or was engaging in the alleged unfair labor
practices. , -
Pursuant to notice, a hearing was held at Wausau, Wisconsin, on
December 9, 10, and 11, 1937, before Herbert Wenzel, the Trial Ex-
aminer duly designated by the Board. The Board, the respondent,
and Frank Reindl and Emma Reindl were represented by counsel and
participated in the hearing. The Amalgamated and the Rubber
Workers Union did not appear. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to produce evidence bearing
upon the issues was afforded all parties.
At the commencement of the hearing, the Trial Examiner, without
objection by any party, granted a motion by counsel for the Board
to amend the complaint to include allegations that the respondent
706 NATIONAL LABOR RELATIONS BOARD
had discriminated in regard to hire and tenure of employment by
discharging and refusing to reinstate Selina Porosky because of her
activities in behalf of the Amalgamated, thereby discouraging mem-
bership in a labor organization. On the second day of the hearing,
the respondent filed a supplemental answer to the complaint, as
amended, denying that it had engaged in or was engaging in the al-
leged unfair labor practices with respect to Selina Porosky. At the
close of the Board's case, the Trial Examiner granted a motion by
counsel for the Board to amend the complaint to conform to the
evidence with respect to names and dates. During the course of the
hearing, the Trial Examiner made other rulings on motions and on
objections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
Thereafter, the Trial Examiner filed his Intermediate Report dated
January 3, 1938, copies of which were duly served upon the respond-
ent, Frank Reindl and Emma Reindl, Doris Stubbe, and Selina
Porosky. The Trial Examiner found that the respondent had en-
gaged in unfair labor practices affecting commerce within the meaning
of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, as
alleged in the complaint, except with respect to the discharge of and
refusal to reinstate Emma Reindl, and recommended that the respond-
ent cease and desist therefrom, offer reinstatement with back pay to
Frank Reindl, Doris Stubbe, and Selina Porosky, and take certain
other affirmative action, and that the allegations of the complaint with
respect to Emma Reindl be dismissed. Exceptions to the Intermediate
Report were thereafter filed by the respondent. No other exceptions
have been filed.
On May 6, 1938, the Board advised the respondent, Walter Pola-
kowski, and counsel for Frank Reindl and Emma Reindl, that they
had the right to apply within 10 days for oral argument before the
Board or permission to file briefs. Upon application, the Board, on
May 19, 1938, granted the respondent 10 days in which to file a brief.
No brief, however, was filed. No request for oral argument was made
by any of the parties.
The Board has considered the respondent's exceptions to the Inter-
mediate Report, and, as appears below, sustains them with respect to
the findings and recommendations of the Trial Examiner in regard to
the alleged discharge of and refusal to reinstate Frank Reindl and
Selina Porosky. In all other respects, the Board finds the exceptions
to the Intermediate Report to be without merit, except in so far as
they are consistent with the Board's findings, conclusions, and order.
Upon the entire record in the two cases, the Board makes the
following :
DECISIONS AND ORDERS
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
707
The respondent , Marathon Rubber Products Co., is a Wisconsin
corporation , with its principal office and place of business at Wausau,
Wisconsin. Since June 1934, the respondent has been engaged in the
manufacture of rubberized cloth, and of waders, ponchos , and other
rubberized garments . It employs from about 150 to 300 persons at its
factory. The respondent's finished products are sold through direct
mail orders and through salesmen in various parts of the United
States. The principal raw materials used are raw rubber, compound
ingredients , wool and cotton piece goods, and trimmings : In 1936,
approximately 98 per cent of the respondent 's total sales were made
to purchasers outside Wisconsin . During this period, the respondent
expended $347,796.72 for raw materials , all of which were shipped to
it from points outside of Wisconsin.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Clothing Workers of America is a labor organiza-
tion affiliated with the Committee for Industrial Organization, ad-
mitting to its membership employees of the respondent.
Rubber and Woolen Workers Union, Local No. 20617, is a labor
organization , affiliated- with the American Federation of Labor,
admitting. to its membership employees of the respondent. It is a
member of Wausau Central Libor Union, an association composed
of approximately 38 labor organizations functioning in and about
Wausau, Wisconsin.'
III. THE UNFAIR LABOR PRACTICES
A. Background of the unfair labor practices
In November 1935, Walter Polakowski, Amalgamated organizer,
solicited memberships among the respondent 's employees , but, meet-
ing with little success , soon suspended his efforts . At about the same
time, Marathon Rubber Products Employees Association , an unaffil-
iated labor organization, known as and herein called the Shop Union,
was formed at the plant . Substantially all the employees , including
foremen and other supervisory employees , became members of the
Shop Union. Individual grievances were discussed with the re-
spondent -by a Shop Union committee established for that purpose,
but no collective bargaining was attempted . Joseph L: Usow, the
respondent 's president, general manager, and principal stockholder,
contributed "social benefits " to the Shop Union and permitted it to
708 NATIONAL LABOR RELATIONS BOARD
hold meetings in the plant after working hours. In the week pre-
ceding May 1, 1937, the Shop Union ceased functioning as a labor
organization.
In February or March 1937, Polakowski renewed his attempt to
interest the respondent's employees in the Amalgamated. At his
request, several employees held parties to which groups of their co-
workers were invited. Membership in the Amalgamated was solic-
ited at these parties. Polakowski was seen frequently in front of
the respondent's plant during this period, in the company of various
employees who attended the parties, and his identity as an Amalga-
mated organizer was known to Usow and to,.some of the supervisory
employees. About the middle of April, a public meeting was con-
ducted by Polakowski, with an attendance of about 40 employees of
the respondent. During the following 2 or 3 weeks, interest in the
Amalgamated waned, and Polakowski again stopped his organizing
activities.
In the second or third week of April 1937, following the decisions
of the Supreme Court of the United States upholding the constitu-
tionality of the Act, an impression that the Shop Union was an
illegal organization under the provisions of the Act was current
among the respondent's employees. A committee of the Shop Union
was appointed to investigate and report on the possibilities of form-
ing a new, unaffiliated union. It was decided by the committee to
call the organization the Wausau Garment Workers Union, and-'ap-
plication cards of membership in the new organization were printed.
By April 27 or 28, the committee was prepared to begin solicitation
of memberships among the respondent's employees. However, activi-
ties in behalf of the proposed organization were abandoned on
April 28.
Learning of the organizing activities being carried on or contem-
plated by the Amalgamated and by Wausau Garment Workers
Union, Albert R. Priebe, secretary of Wausau Central Labor Union
and organizer for the American Federation of Labor, called a public
meeting of the respondent's employees for the evening of April 27,
for the purpose of establishing' a labor organization to be affiliated
with the American Federation of Labor. About 39 employees at-
tended. Temporary organization of the Rubber Workers Union was
effected at this time and it was determined to apply for a charter
from the American Federation of Labor, which subsequently was
issued. On April 28, and, to a lesser degree, on April 29, an intensive
organizing campaign was conducted, among the respondent's em-
ployees in behalf of the Rubber Workers Union, -during which sub-
stantially all the employees • applied for membership in the
organization.
DECISIONS AND ORDERS 709
On May 6, 1937, a conference was held between the respondent
and a committee representing the Rubber Workers Union, at which
recognition of the Rubber Workers Union by the respondent was
discussed. Negotiations culminated on July 2, 1937, with the signing
of an agreement dated June 30, 1937, which provided for recognition
of the Rubber Workers Union as exclusive bargaining agency for
all the respondent's employees, exclusive of the office force, foremen,
subforemen, and millwrights, and watchmen and maintenance em-
ployees. At the time of the hearing, the Rubber Workers Union
was the only labor organization claiming to represent any employees
of the respondent.
B. Interference, restraint, and coercion
Prior to April 29, 1937, disapproval of affiliated unions was mani-
fested on several occasions by Usow and various supervisory em-
ployees of the respondent. During the first organizational attempt
by Polakowski in November 1935, statements antagonistic to labor
organizations were made by Usow, according to testimony which Usow
did not deny. In one instance, he questioned Leslie Van Laanen,
an employee, about "the trouble of union," and told him to "cut
it out or resign" from his job. Van Laanen previously had been in
t ouch with Polakowski, and had advised another employee how to
form a labor organization.
About March =1937, Edward Boerke, an employee, who had applied
for Amalgamated membership, was told by Usow, in the presence of
a supervisory employee, that he was "surprised at my actions of being
out trying to organize an outside union," that he "didn't think I
was that type of fellow."
During working hours on April 6, 1937, Selina Porosky, George
Bessert, Augusta Bessert, and Doris Stubbe, employees, were individ-
ually summoned by J. Larson, an employee, to the stockroom, where
they found Leo Murr, Eddie Miller, and Irving Marquardt, all super-
visory employees, under whose direction Larson had acted. Larson,
testified that he knew, or suspected, that Porosky, George and Augusta
Bessert, and Stubbe were active in behalf of the Amalgamated. The
three supervisors asked Porosky if she had attended any of the
union parties and had signed an application card, told her that they
knew that Usow would move the plant out of town if an outside-
union came into the plant, and remarked that the Shop Union was
a good one and that they did not see why she wanted to join an out-
side organization. George Bessert was questioned about a party-
given at his house, at which Amalgamated organizing, was conducted.
The supervisors told Augusta Bessert that they understood a party
was held at her house, that they did not see what was wrong with
147541-39-vol 10-46
710 NATIONAL LABOR RELATIONS BOARD
the Shop Union, that they thought Usow would be very much against
an outside union, and that 'it was -difficult to say what would happen
if an outside labor organization were organized at the plant. Stubbe
was questioned concerning the Amalgamated meetings and her at-
tendance at them, and was told by the supervisors that they "didn't
want the union in there," that they were instructed to "fight it as long
as they could," and that they thought that the plant would be closed
down if the Amalgamated came in.
Murr, foreman of the spreader department, was particularly active
in opposition to the Amalgamated during March and April 1937.
He told George Bessert that "If the union comes in there, we would
all lose our jobs, he would lose his job, and the shop would prob-
ably have to close down." He asked Hettenga, an employee, whether
he had had a union meeting at his house and why he wanted an out-
side union, and stated, "Mr. Usow doesn't want an outside union in
here, and if we get an outside union in here, why, he will close the
plant." Murr asked Edward Ponko, an employee, what he thought
of organizing an outside union, and indicated that he did not think
that the Amalgamated was a "proper organization."
During the week of April 12 to 18, 1937, Usow summoned Porosky
to his office and questioned her about union activities among the
respondent's employees. He told Porosky that he did not see why
she wanted to "get into an outside union," and that if an outside
union "got in the shop" and "got too hot," he would close the plant
and move out of town.
About the third week of April 1937, Usow permitted several mem-
bers of the Shop Union committee investigating the possibilities of
forming the Wausau Garment Workers Union to leave the plant one
afternoon during working hours, for the purpose of seeking legal
advice concerning the formation of the organization. By this action,
taken at a- time when the Amalgamated was known to be soliciting
memberships among the employees, the respondent signified to its
employees its approval of the incipient Wausau Garment Workers
Union and its opposition to the Amalgamated.
Van Laanen and Gordon Heinrichs, employees, were members of
the committee interested in the formation of the Wausau Garment
Workers Union, but shifted their allegiance to the Rubber Workers
Union on April 27 or 28, 1937. Late in the afternoon of April 28,
Usow approached Van Laanen and, after learning that he had been
elected temporary secretary of the Rubber Workers Union the previ-
ous evening , asked him "what was the matter with the independent
union." A few minutes later Usow asked Gordon Heinrichs "what
the idea was of causing all of the trouble in the shop, working against
the management," and said that he did not see why Heinrichs "should
be working against the company."
DECISIONS AND ORDERS 711
We find that by the foregoing acts the respondent has- intimidated
and threatened its employees for The purpose .of discouraging mem-
bership in a labor organization, thereby interfering with, restraining,
and coercing them in the exercise of the rights guaranteed in Section
7 of the Act.
C. The discharges
Doris Stubbe was first employed by the respondent in the spring
of 1935. In November 1936, during the respondent's busy season,
Stubbe and her husband, also an employee of the respondent, quit
their employment and went to Seattle, Washington. Subsequently,
Stubbe returned to Wausau, while her husband remained in Seattle,
and was again employed by the respondent on about February 21,
1937. She was discharged by Usow on April 6, 1937. Stubbe was
a very efficient worker. Since her discharge, she has not secured
work elsewhere.
Stubbe applied for membership in the Amalgamated about 2 weeks
after her reemployment by the respondent in February 1937, and
subsequently attended various parties and meetings of the Amalga-
mated. She solicited memberships for the Amalgamated in the re-
spondent's plant. Subsequent to her discharge on April 6, 1937,
Stubbe joined the Rubber Workers Union.
On the day of Stubbe's discharge, as we have found in Section III
B above, three supervisory employees of the respondent intimidated
Stubbe for the purpose of discouraging her union activities. At that
time, Stubbe refused to answer the supervisors' questions concerning
the meetings of the Amalgamated and her attendance at them.
About 2: 00 or 3: 00 p. m. of the same day, J. Larson approached
Stubbe a second time, and requested her to return to the stockroom,
where the earlier intimidation had taken place. Stubbe refused to
comply with this request, explaining to Larson that she was paid on
a piece-work basis and did not wish to leave her work again. A few
minutes before 5:00 p. m., Usow summoned Stubbe to his office, dis-
charged her, and handed her her pay check.
Shortly after April 6, 1937, Stubbe requested reinstatement through
the Shop Union grievance committee, and a hearing was held by
the committee at which Stubbe and Usow stated their positions with
respect to her discharge, Stubbe contending that it was due to her
union activities. The committee voted unanimously on April 11 and
15, and by a substantial majority. on April 16, that Stubbe be rein-
stated. Although Usow had agreed to abide by the committee's
decision, and was informed of its initial vote, he refused to reinstate
Stubbe.
The respondent contends that Stubbe was discharged in the inter-
ests of plant efficiency, for the reason that she refused to tell Usow
712 NATIONAL LABOR RELATIONS BOARD
whether she intended to quit at the beginning of the busy season
in the fall, as she had in 1936. Usow testified that when he reem-
ployed Stubbe in February 1937 he assumed that her husband had
returned with her from Seattle, but that subsequently he learned
that this was not the case, and heard rumors in the plant that Stubbe
intended to rejoin her husband in the fall. He further testified
that when he called Stubbe to his office on April 6, 1937, he explained
to her that he could not afford to retain her in his employ during
t1;^ dull summer months and then be under necessity to hire an in-
experienced employee to take her place, and that he discharged her
upon her refusal to state definitely whether she intended to join
her husband in Seattle in the fall. According to, Stubbe, the reason
advanced by Usow at the time of the discharge was shortage of
work. She admitted that Usow told her that he was uncertain
whether she would quit at the beginning of the busy season and that
there "would not be much reason" for her to stay through the slack
season and then quit during the busy season, but stated that she did
not believe that Usow asked her to tell him whether she intended
to rejoin her husband.
In the light of the record, we cannot accept the respondent's con-
tention that Stubbe was discharged for causes unrelated to union
activity. The respondent knew that Stubbe was active on behalf of
the Amalgamated. On the very day of her discharge, three of the
respondent's supervisors questioned Stubbe concerning her union
activities and warned her that the respondent was opposed to the
Amalgamated. She refused to answer their questions, and later the
same day refused to submit to further questioning by the respondent's
supervisors concerning her union activities. After Stubbe's discharge,
as well as before, the respondent displayed pronounced antagonism
to the organization of a nationally affiliated union in its plant.
Moreover, the record establishes that Stubbe was one of the respond-
ent's most efficient employees, that there was no falling off of work
in her department in the spring of 1937, and that she had unfinished`
work to complete at the time of her discharge. Under these circum-
stances, we find that the reason given by Usow for discharging Stubbe,
was merely a pretext to conceal the real reason, namely, her union.
activity.
We find that the respondent discharged Stubbe on April 6, 1937,
because of her activities in behalf of the Amalgamated. By dis-
charging Doris Stubbe, the respondent has discriminated in regard to.
her tenure of employment, thereby discouraging membership in the
Amalgamated.
Selina Porosky was employed in the rubber-surfacing department.
of the respondent's plant from June 15, 1934, until April 20, 1937,,
DECISIONS AND ORDERS 713
when she was discharged by Frank Fodor, her foreman. Porosky
was an efficient worker.
Porosky gave the first party, in February or the early part of
March 1937, at which Amalgamated activities were conducted, and
applied for membership in the Amalgamated. She was present at
subsequent parties for the Amalgamated, solicited memberships in its
behalf, and attended a public meeting of the Amalgamated within 2
weeks -before her discharge, at which she was seen by two supervisory
employees of the respondent. Both Usow and Fodor knew, prior to
Porosky's discharge, that she was active in the Amalgamated.
On the morning of Monday, April 19, 1937, Porosky telephoned
the plant, and, upon her statement that she preferred not to report for
work because of illness, was given permission to stay home for the
day. Porosky had a cold at the time, which, she testified, she feared
would be aggravated by the smoke and smell of gas at her working
place. At noon that day, Porosky was seen by Fodor and other
employees in front of the respondent's plant in an automobile driven
by Polakowski, who was taking her to the business district of Wausau
to pay some bills. She was discharged by Fodor when she reported
for work on the following morning, and did' not thereafter apply
for reinstatement. Usow testified that he was unaware of Porosky's
discharge until after it occurred.
Fodor, who was not employed by the respondent at the time of
the hearing, and who displayed no hesitation in giving testimony
adverse to the respondent, testified that he discharged Porosky be-
cause he believed that she had misrepresented the state of her health
when she telephoned to the plant on the morning of April 19. Ac-
cording to Jean Treu, an employee, when Fodor came into the plant
at noon on April 19, after having seen Porosky in an automobile in
front of the plant, he was "quite sore," and stated that "she (Porosky)
is too sick to come to work, but she isn't too sick to go up town."
Fodor testified that it had always been his policy, as a foreman, to
discharge any employee who lied to him. Referring to his discharge
of Porosky, he stated : "That was not the first case where I fired help
for telling me a lie. I fired all of these the same way and no excep-
tion was made in her case."
We find that the record does not support the allegations of the com-
plaint that Porosky was discharged because of her union membership
or activity.
Frank Reindl and Emmaa Reindl. Frank Reindl was employed by
the respondent from the summer of 1935 until April 28, 1937, when he
was discharged. He was an efficient worker. Emma Reindl, wife of
Frank Reindl, was employed by the respondent in September 1934,
and was discharged on April 30, 1937. Her forelady testified that
Emma Reindl was "as fair as the rest" in her work.
714 NATIONAL LABOR RELATIONS BOARD
Frank Reindl had been active in the Shop Union, and was a member
of the committee appointed to investigate the possibilities of forming
the Wausau Garment Workers Union. He was elected temporary
president of the Rubber Workers Union at its initial meeting in the
evening of April 27, 1937, and was very active in soliciting member-
ships for the Rubber Workers Union throughout the day on April 28.
Emma Reindl joined the Rubber Workers Union on April 28, as did
many other employees of the respondent, but was not otherwise active
in its behalf.
On April 28, 1937, at 5: 00 p. m., his regular quitting time, Frank
Reindl left his place of work in the cutting room and walked over to
a group of five employees at a table in another department to collect
application cards for membership in the Rubber Workers Union.
Quitting time for four of these five employees was 6: 00 p. m. As
Reindl reached the group, Usow entered the room and saw him. Ac-
counts of what then took place were given at the hearing by Usow
and Reindl, by the five employees at the table where Reindl was
standing, and by two other employees who witnessed the incident.
Their testimony is in substantial agreement, and may be summarized
as follows :
Usow saw Reindl holding application cards, became highly in-
censed, and addressed the following remarks to him: "What are you
doing there? . . . Cut it out ! . . . There is to be no organizing
done in this shop. . . . Get out and do your organizing out of the
plant ! ... You can't organize here. ... There are plenty of halls,
you can rent a hall if you want to. . . . I don't want any organizing
in here. . . . Get the hell out of here, God damn you, beat it! beat
it! beat it !" None of the employees said anything. Reindl imme-
diately left the table and went to his own department.
Upon his return to the cutting room, Reindl met Van Laanen and
Frank Heinrichs, his foreman. Reindl "seemed quite excited," Frank
Heinrichs testified. Reindl told the two men that he thought he was
discharged, adding that Usow had "caught me picking up some appli-
cation blanks in the boot department." Frank Heinrichs said that
he would talk to Usow and would tell Reindl that evening whether
he should report for work the next morning. Reindl then left the
plant, passing Usow on the way out without speaking to him.
Usow entered the cutting room immediately after Reindl's depar-
ture, and talked with Frank Heinrichs, two other supervisory em-
ployees, and Van Laanen. Frank Heinrichs mentioned the Reindl
incident. Usow explained that Reindl had been "organizing or do-
ing something along these lines, and he wouldn't have it . . . and told
him to get out of there." He added that if Reindl thought he had a
grievance, he should report it to the Shop Union grievance committee.
Upon being informed that Reindl thought he was discharged, Usow
DECISIONS AND ORDERS 715
replied, "Well, if he thinks he is fired let him stay out a couple of
days and he will cool off." Heinrichs testified that he considered
Reindl "fired at that time." Van Laanen, who, as far as appears from
the record, was present throughout Usow's conversation concerning
Reindl, testified that, until the afternoon of April 29, he did not think
that Reindl had been discharged.
Frank Heinrichs saw Reindl in the evening of April 28 and told
him that he was discharged. Reports that Reindl had been discharged
for his union activities were current at the plant the following morn-
ing, April 29, and caused considerable unrest among the employees.
In the afternoon, Usow called a meeting of all the employees. He
announced that they were free to join any organization they chose,
and that he would recognize the union selected by the majority. He
warned them, however, that union activities should not be carried on
in the plant. Usow then said to the employees that on the night
before he had "called down" a "certain party," whom he identified as
Frank Reindl, and that Reindl "got awful sore about it and he walked
out, and he didn't have no business getting sore about it." To verify
his assertion that Reindl had quit, rather than been discharged, Usow
called upon Gordon Heinrichs, who was one of the five employees at
whose table Reindl had been standing the previous afternoon, to
relate what Usow had said to Reindl.
'At this point in the meeting an altercation occurred between Usow
and Emma Reindl, who was present at the meeting. Emma Reindl's
version of what took place is as follows : Usow said that Frank
Reindl was "making statements on the outside about him and about
the union," and had "stabbed him in the back." Emma Reindi in-
terrupted to say, "Have you got proof of those things, Mr. Usow?
Perhaps the day will come when you will need 'the proof." Usow
replied that he could prove what he had said, and then continued,
"That is the appreciation you get after helping people out... .
you come and beg me for a job for your husband so you could get
married." Emma Reindl then stated, "That's a damn lie." Usow
"was mad, but he got madder." He said, "You can't insult me... .
We will call the meeting off. . . . that is all; that is what I get."
On the following day, after a conference between Usow and Emma
Reindl's forelady, Emma Reindl was discharged.
On May 6 the question of Frank Reindl's reinstatement was dis-
cussed at a meeting between Usow and a committee of the Rubber
Workers Union. Three of the employees who heard Usow's remarks
to Reindl on April 28 were called before the committee and told
what had occurred. Usow testified at the hearing that the committee
agreed that he was "right," but asked him to reinstate Reindl, and
that he advanced Emma Reindl's conduct as his reason for refusing
this request. This testimony was not denied.
716 NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that Frank Reindl was discharged be-
cause of his union activities. We disagree with this conclusion.
When Usow addressed his remarks to Reindl on April 28, Reindl
was delaying the work of four employees of the respondent. He
admitted knowing that union activities during working hours were
forbidden, and he and the others present at the initial meet-
ing of the Rubber Workers Union on the evening of April 27
had been cautioned on this point by Priebe, organizer for the Ameri-
can Federation of Labor. Usow testified in substance that his state-
ments to Reindl were intended to constitute no more than a repri-
mand for entering a department in which he did not belong and
interrupting employees at their work, and an order to leave the de-
partment at once. Usow's statement to Van Laanen and Heinrichs,
a few minutes after the incident, that "if he thinks he is fired let
him stay out a couple of days and he will cool off," is, in our opinion,
inconsistent with the theory that Usow intended at that time to
discharge Reindl.
We find that Reindl's discharge by Frank Heinrichs on the eve-
ning of April 28 was caused by Frank Heinrichs' misinterpretation of
Usow's statements to him in the cutting room. We further find that
Usow's subsequent refusal to reinstate Reindl was due to resentment
against the Reindls occasioned by Emma Reindl's publicly describing
a statement by him as a "damn lie."
We find that the record does not support the allegations of the
complaint that Frank Reindl and Emma Reindl were discharged be-
cause of their union membership or activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent discriminated in regard to the
tenure of employment of Doris Stubbe, we shall order the respondent
to offer Stubbe immediate and full reinstatement to her former po-
sition, and to make her whole for any loss of pay she has suffered by
reason of her discharge by payment to her of a sum equal to the
amount which she normally would have earned as wages from the
date of her discharge to the date of the offer of reinstatement, less
DECISIONS AND ORDERS 717
her -net earnings 1 during said period. We shall also order the re-
spondent to cease and-desist from its unfair labor practices.
Upon the basis of the foregoing findings of fact and upon the en-
tire record in both cases, the Board makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America and Rubber and
Woolen Workers Union, Local No. 20617, are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
3. By discriminating in regard to the tenure of employment of
Doris Stubbe, thereby discouraging membership in a labor organiza-
tion the respondent has engaged in and is engaging in an unfair
labor practice, within the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. By discharging Selina Porosky, Frank Reindl, and Emma
Reindl, the respondent has not engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Marathon Rubber Products Co., Wausau, Wisconsin, its
officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated, Clothing Workers
of America, Rubber and Woolen Workers Union, Local No. 20617,
or any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees, or in any other manner
1 By net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber , Company and United Biotherhood of Carpenters and Joiners of
America, Lumber and Sawnzzll Workers Union , Local 2590, 8 N L R . B. 440 . Monies
received for work performed upon Federal , State, county, municipal , or other work-relief
projects are not deductible as "net earnings ," but, as provided in the Order below, shall
be deducted and paid over to the appropriate fiscal agency of the Federal, State , county,
municipal , or other government or governments which supplied the funds for said work-
relief projects.
'718 NATIONAL LABOR RELATIONS BOARD
discriminating in regard to- their hire and tenure of employment or
.any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of their rights to self-organization,
-to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of-collective bargaining and other
mutual aid or protection as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Doris Stubbe immediate and full reinstatement to her
former position, without prejudice to her seniority and other rights
and privileges;
(b) Make whole Doris Stubbe for any loss of pay she has suffered
by reason of her discharge by payment to her of a sum of money
equal to that which she would normally have earned as wages from
the date of her discharge to the date of the respondent's offer of
reinstatement, less her net earnings during said period; deducting,
however, from the amount otherwise due to Doris Stubbe, monies
received by her during said period for work performed upon Federal,
State, county, municipal, or other work-relief projects; and pay over
the amount so deducted to the appropriate fiscal agency of the Fed-
eral, State, county, municipal, or other government or governments
which supplied the funds for said work-relief projects;
(c) Post immediately, in conspicuous places throughout its plant,
notices stating that the respondent will cease and desist in the man-
ner aforesaid, and maintain such notices for a period of at least sixty
(60) consecutive days from the date of posting;
(d) Notify the Regional Director for the Twelfth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (3) of the
Act by discharging Selina Porosky, Frank Reindl, and Emma Reindl.