Kalamazoo Coaches, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1946

66 N.L.R.B. 171 (N.L.R.B. 1946)

In the Matter of KALAMAZOO COACHES, INC. and UNITED AUTOMOBILE
WORKERS, A. F. L.
Case No. 7-C-1351.-Decided February 28, 1946
DECISION
AND
ORDER
On July 26, 1945, the Trial Examiner issued his Intermediate Re-
port in the above-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 out in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent and counsel for the
Board filed exceptions to the Intermediate Report and supporting
briefs. On February 12, 1946, the Board heard oral argument at
Washington, D. C. The respondent and the Union participated in
the argument.
The Board has reviewed the Trial Examiner's rulings made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions of the respondent and counsel for the
Board, the contentions advanced at the oral argument before the
Board and in the briefs submitted by the parties, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the additions herein-
after set forth.
We agree with the Trial Examiner's finding that the respondent
violated the Act by discharging employees Garrison and Prolo on
February 26, 1942, and employees Lee and Wikel on March 24, 1944.
In agreement with the Trial Examiner, we find that by such conduct
the respondent discouraged membership in the Union and thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. We further agree
with the Trial Examiner that the respondent discriminatorily dis-
charged employee Garrison on May 20, 1942, and employees Stinson
and Lee on July 14, 1944, thereby discriminating in regard to their
hire and tenure of employment and discouraging membership in the
66 N. L . R. B., No. 14.
171
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union.' We also agree with the Trial Examiner that the respondent's
conduct, as fully set forth in the Intermediate Report, constituted
a refusal to bargain within the meaning of Section 8 (5) of the Act,2
and that it engaged in other conduct, more fully revealed in the
Intermediate Report, violative of Section 8 (1).
THE REMEDY
We have found that the respondent violated the Act by, among
other things , ( 1) unlawfully inducing employee Garrison to resign
from the Union in June 1942 ; ( 2) by refusing to bargain with the
Union in June 1942, except upon an illegal condition ; ( 3) by the
statement of Dennis , the respondent 's president, that the respondent
would not deal with an outsider but would deal with an "inside"
organization , by his suggestion that the employees elect a "committee"
and by the conduct at the plant of a ballot thereon ; ( 4) by Foreman
Burkhart 's proposal that a certain named employee act as the chair-
man of the "committee"; (5) by assembling the employees to question
them about the bargaining committee 's statements ; (6) by the re-
spondent 's efforts to effect the removal of two employee members
of the bargaining committee; and (7 ) by the respondent 's efforts
to discourage employee Lee's union activities by promising to relieve
him of pressure if Lee would curtail such activities . We have also
found that the respondent discriminatorily discharged a number of
employees and failed to bargain with the Union within the meaning
of the Act.
Upon the entire record we infer and find that the respondent, by
the foregoing course of conduct , and particularly by the discharges,
has displayed an attitude of opposition to the purposes of the Act.
Because of the respondent 's unlawful conduct , and the underlying
purpose manifested thereby, we are convinced and find that the unfair
labor practices which it has committed are persuasively related to
the other unfair labor practices proscribed by the Act, and that
danger of the commission in the future of any or all of the unfair
labor practices listed in the Act is to be anticipated from the re-
'In so finding, we have considered the fact that at the time of the discharge of
employees Lee and Stinson, the contract then in effect included a closed-shop provision.
See N . L. R.B. V. Walt Disney Productions, 146 F. ( 2d) 44 ( C. C. A. 9), enforcing 48
N. L. R. B. 892.
Counsel for the Board Excepted to the Trial Examiner's failure to find that the
respondent 's conduct in (1) refusing to take any steps to prevent its foreman from
working overtime without a helper , after the Union had complained about this alleged
violation of the contract, and (2 ) taking unilateral action in putting into effect a speed-up
in production without previously notifying and consulting the Union about such action,
in itself violated Section 8 (5) of the Act. We have considered these matters as part of
the entire course of the respondent's conduct indicating a refusal to bargain . Conse-
quently, we find it unnecessary to determine whether these acts , standing alone, consti-
tute such a violation.
KALAMAZOO COACHES, INC. 173
spondent's conduct in the past .3 The preventive purposes of the
Act will be thwarted unless our Order is coextensive with the threat.
We shall therefore order the respondent to cease and desist not only
from the unfair labor practices herein found, but also from in any
other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act. We
shall also order the respondent to take the affirmative action recom-
mended by the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the respondent, Kalmazoo Coaches,
Inc., Kalamazoo, Michigan, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Automobile Workers,
affiliated with the American Federation of Labor, or in any other
labor organization, by discharging or refusing to reinstate any of
its employees, or by discriminating in any other manner in regard
to their hire and tenure of employment or any term or condition of
their employment;
(b) Refusing to bargain collectively with United Automobile
Workers, affiliated with the American Federation of Labor, as the
exclusive representative of all its employees at the Kalamazoo, Michi-
gan, plant, excluding supervisory employees with authority to hire,
promote, discharge, or discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, clerical
employees, and confidential clerks;
(c) Bargaining with individual employees concerning wage and
other grievances, to the exclusion of the exclusive bargaining repre-
sentative, and from imposing an illegal condition to bargaining with
the exclusive bargaining representative;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to
form labor organizations, to join or assist United Automobile
Workers, affiliated with the American Federation of Labor, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
3 See N. L. R. B v. Express Publtshtng Company, 312 U. S 426; May Department
Stores Co v. N. L. R. B., 326 U. S. 376.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purpose of collective bargaining or other mutual aid or protection.
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Charles Garrison, Wilford Lee, and Harry Stinson
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges;
(b) Make whole Charles Garrison for any loss of pay he has
suffered by reason of the respondent's discrimination against him,
by payment to him of a sum of money equal to the amount he normally
would have earned as wages from April 27, 1945, to the date of the
respondent's offer of reinstatement, less his net earnings during said
period;
(c) Make whole Wilford Lee and Harry Stinson for any loss of
pay they have suffered by reason of the respondent's discrimination
against them, by payment to each of them of a sum of money equal
to the amount which each normally would have earned as wages
from the date of their discriminatory discharge to the date of the
respondent's offer of reinstatement, less their net earnings during
said period;
(d) Upon request, bargain collectively with United Automobile
Workers, affiliated with the American Federation of Labor, as the
exclusive representative of all the respondent's employees in the
above-described appropriate unit, with respect to rates of pay, wages,
hours of employment, or other conditions of employment;
(e) Post at its plant in Kalamazoo, Michigan, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to
be furnished by the Regional Director of the Seventh Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon the receipt thereof and main-
tained 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 the respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for the Seventh Region in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.
MR. GraAxn D. REILLY took no part in the consideration of the
above Decision and Order.
KALAMAZOO COACHES, INC.
APPENDIX A
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER
175
of the National Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, we hereby notify
our employees that :
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist UNITED AUTOMOBILE
WORKERS, A. F. L. or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimination.
CHARLES GARRISON, WILFORD LEE, HARRY STINSON.
We will bargain collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
hours of employment or other conditions of employment, and
if an understanding is reached, embody such understanding in
a signed agreement. The bargaining unit is :
All employees, excluding supervisory employees with authority
to hire, promote, discharge or discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
actions, clerical employees, and confidential clerks employed at
our plant in Kalamazoo, Michigan.
We will not bargain with individual employees concerning
wages and other grievances, to the exclusion of the exclusive
bargaining representative, and we will impose no illegal condi-
tions to bargaining with the exclusive bargaining representative.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminate in regard to hire or tenure of employment or any terra
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
KALAMAZOO COACHES, INC.,
Employer.
Dated .................. By....................................
(Representative ) ( Title)
NOTE : Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
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
Mr. Mozart G. Ratner, for the Board.
Messrs. Frank F. Ford and F. N. Schroen, of Kalamazoo , Mich., and Mr.
Edwin F, Steffen, of Lansing, Mich., for the respondent.
Messrs. Earl Falconer and George Rogers , of Lansing, Mich., and Mr. Claude
Brice, of East Prairie, Mo., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge filed on April 9, 1945, by United Automobile
Workers, affiliated with the American Federation of Labor, herein called the
Union, the National Labor Relations Board, herein ealled the Board, by Its
Regional Director for the Seventh Region (Detroit, Michigan), issued its com-
plaint dated April 13, 1945, against Kalamazoo Coaches, Inc., herein called
the respondent, alleging that the respondent at Its plant in Kalamazoo, Michi-
gan, had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (3), and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint accompanied by notice of hearing thereon
were duly served upon the respondent and the Union.
In respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged in substance that from about April 13, 1942, to the date of
the Issuance of the complaint the respondent interfered with the efforts of the
Union, which represented all employees in an appropriate unit,' to bargain
collectively, and failed and refused to bargain collectively with the Union in
good faith or to recognize, negotiate, bargain, or treat with the Union as
exclusive representative of all the employees in the unit in respect to rates of
pay, wages, hours of employment, and other conditions of employment, or in
the presentation and settlement of grievances concerning such matters, by :
(1) bargaining individually with employees without notifying the Union of
such bargaining; (2) granting individual wage Increases and otherwise affect-
1 The unit was alleged to be all employees except supervisory, clerical employees, and
confidential clerks.
KALAMAZOO COACHES, INC. 177
ing the terms and conditions of employment of employees in the unit without
notifying the Union; (3) discharging , abusing, disparaging, threatening, and
vilifying employees who acted in the capacity of officers, stewards, committee-
men, and representatives of the Union because of their efforts to negotiate,
bargain for, and present grievances on behalf of the Union and the employees
in the unit, thereby causing them to leave the employ of the respondent ;
(1) promoting officers, stewards, committeemen, or representatives of the Union
and of employees in the unit to supervisory positions with the respondent for
the purpose of preventing them from engaging in concerted activities on behalf
of the Union and of the employees in the unit; (5) in January 1943, and March
1944, seeking to induce employee Wilford Lee to leave the employ of the
respondent and from January 1944, keeping said Lee under surveillance because
he had attempted, as an officer, steward, committeeman, or representative of
the Union , to negotiate , bargain for , and present grievances on behalf of the
Union and of the employees in the unit; (6) about June 1944, offering to
release said Lee from such surveillance on condition that he abandon or mini-
mize his aforesaid activities on behalf of the Union and of the employees
in the unit; (7) on about March 20, 1944, discharging said Lee and employee
Francis Wikel because each of them had engaged in aforesaid activities on
behalf of the Union and of the employees in the unit; (8) about March 1944,
attempting to preclude specified employees from serving on the bargaining
committee of the Union and as representatives of the Union and of the
employees in the unit; (9) interfering with, disparaging, and vilifying the
efforts of the Union, its officers, stewards, committeemen, and representatives
to negotiate, present grievances, and bargain collectively on behalf of employees
in the unit; (10) on about May 24, 1942 , discharging Charles Garrison and-
thereafter refusing to reinstate him, and on about June 2, 1942, inducing, urging,
and persuading said Garrison to leave the employ of the respondent because
he joined or assisted the Union, or engaged in activities with other employees
for the purpose of collective bargaining or other mutual aid or protection ;'
and the complaint , as amended , further alleged that the respondent discharged
Charles Garrison and Irving Prolo both on about February 26 and March 3,
1942,' and Wilford Lee and Harry Stinson on about July 14, 1944, because
they joined or assisted the Union or engaged in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and that
for this reason the respondent since July 14, 1944 , refused and continues to
refuse to reinstate said Lee and Stinson"
The respondent's answer admitted that it had promoted officers of the Union
and other employees in the bargaining unit but denied the purpose alleged
in the complaint ; admitted the discharge of Lee, Wikel, and Stinson on the
respective dates, but denied that it was for the cause alleged in the complaint ;
and either specifically or in effect denied all other allegations of unfair labor
practices of the complaint. Affirmatively , the answer alleged that Lee and
Wikel were discharged on about March 20, 1944, because they used vile, profane
and unbecoming language in the presence of female employees in the office
during a meeting between the bargaining committee of the Union and the
' This clause was added to the complaint by motion made and allowed at the hearing as
related hereinafter.
3 The original date was changed from February 2 to February 26 and March 3 by
amendment made at the hearing.
s- The foregoing acts were alleged to constitute interference, restraint and coercion, as
well as indication of failure and refusal . to bargain collectively.
686572--46-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent and alleged that Lee and Wikel were subsequently reinstated. It
further alleged that Lee and Stinson were discharged on about July 14, 1944,
because Lee continually refused to carry out instructions as given him by
his foreman or supervisory official and continually attempted to bring about
dissatisfaction among all the employees ; because Lee attempted to coerce man-
agement by his unlawful activities and thereby induced other employees to
quit their employment with the respondent ; because beginning on July 11, 1944,
Lee in concert with Stinson, by arbitrary, uncooperative, insolent and inde-
pendent conduct by both, brought about delay in the delivery of a repair job;
because during the same period Lee and Stinson attempted to coerce customers
of the respondent to pay them amounts in addition to their regular hourly
rate, promising thereby to speed delivery of the said repair job; and because
Lee and Stinson consistently refused to carry out the instructions of man-
agement and Lee dominated Stinson to the extent that Stinson joined Lee
in talking back and arguing with the foreman ; and that Stinson was dis-
charged prior to the expiration of his probationary period because he performed
his work in an unsatisfactory manner.
Pursuant to notice, a hearing was held on April 26 to 28, May 2 to 4, and
May 14 and 15, 1945 at Kalamazoo, Michigan, before the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. The Board and
the respondent were represented by counsel and the Union by representatives.
Full opportunity was afforded all parties to be heard, to examine and cross-
examine, witnesses, and to introduce evidence bearing upon the issues. At
the, second day's hearing, Board counsel moved to amend the complaint by
adding additional dates of discharge of Charles Garrison, which were alleged
in the offered amendment as violations of Section 8 (3) of the Act (whereas
the earlier discharges, alleged to be violations of Section 8 (1) of the Act,
remained unmodified), by adding certain conclusions concerning violations of
Section 8 (1) of the Act, and by omitting the name of one employee named
in the original complaint as having been discharged in violation of Section
&, (1) of the Aet. The motion was granted. At the conclusion of the case,
Board's counsel moved to amend the complaint to conform to the proof with
respect to such matters, as to names and dates. This motion was granted.
Thereafter counsel for the Board and the respondent argued orally before
the undersigned and declined the opportunity to file briefs.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINbINOS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Michigan 'corporation, having its place of business in
Kalamazoo, 'Michigan, 'where it^ Is engaged in manufacturing, repairing, dis-
tributing, and selling inter-city type passenger busses. During the 6 months
preceding December 1944, the respondent purchased raw materials for use in
its 6perations I valued in -excess • of $145,000. More than 50 percent of such
materials was shipped to the respondent from places outside the State of
Michigan. During the same period the respondent's receipts from sales of
products manufactured, repaired, sold, and distributed were in excess of
$300,000. More than 95 percent of its products was shipped from Kalamazoo
to places outside the State of Michigan. The respondent admits that It is
engaged In commerce within the meaning of the Act.
KALAMAZOO COACHES, INC.
II. THE ORGANIZATION INVOLVED
179
United Automobile Workers, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the discriminatory discharges; the
refusal to bargain
1. Chronology of events leading to the Union's contract with the respondent
On February 22, 1942, certain employees of the respondent, including Charles
Garrison' and Irwin Prolo, became interested in the formation of a union.
They held a meeting in a cigar store that night and were addressed by a
representative of the Union. In 2 or 3 days they procured 15 applications
from among the 26 or 27 employees of the respondent. On February 25, 1942, a
second meeting was held and temporary officers were elected. Garrison was
elected president and Prolo was elected financial secretary. On the morning
of February 26, 1942, Garrison and Prolo were discharged. This precipitated
a walkout. The employees called Lester Washburn, then the Union's Regional
Director at Lansing, Michigan, who told them to return to work. Washburn
then telephoned the respondent and made an appointment for a conference.
As Instructed by Washburn, the employees, with the exception of Garrison
and Prolo, returned to the plant. Soon after their return they were assembled
by President Dennis and Vice-President Fred Schroen. Dennis asked why
they had walked out. Employee Francis Wikel replied that it was because they
had discharged Garrison and Prolo. Dennis said they had fired men before
and asked why they did not walk out then. Wikel replied that they now had
a union. Dennis acted surprised and said he wanted them to be more specific.
Employee Earl Johnson said he objected to discussing it without having an
International Representative present. Dennis stated that he would not discuss
affairs at the plant with an outsider but that he was willing for them to
organize within the plant. Thereafter, Washburn met with Dennis, Schroen,
and an attorney representing the respondent and negotiated the reinstatement
of Garrison and Prolo. At this meeting Washburn raised the question of
recognition, and the respondent's attorney said they would think about it.
A few days later the respondent assembled the employees in the presence
of Dennis, Schroen, and Frank Ford, the respondent's attorney. Ford, after
being introduced as the respondent's attorney, addressed the employees and
advised them, if they felt they could afford to pay union, dues after they had
paid their insurance, lodges, and social activities, to join the Union ; other-
wise to take the money home to their wives and children. After this address
the respondent distributed a leaflet, setting forth a resume of the Michigan
Mediation Board Law which had been prepared for the respondent at its
request by Ford,' and concluding with the suggestion that the employees elect
4 Until shortly before the Union started organizing , Garrison had been a foreman. He
resigned his foremanship to take a group leadership on an hourly basis.
"Ford testified that at the time he was requested to prepare the contents of the leaflet
the respondent informed him that "there were some minor differences with one or two
men and that the Union was being talked of . . " Ford testified that he believed the
two men were Garrison and Prolo.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a committee to represent them .6 Following Ford's speech , Dennis told the
employees that he was willing that they organize if a majority wanted a
union . The employees told Dennis that the Union had a majority , but Dennis
said he preferred to conduct a ballot on it. Shortly thereafter the respondent
called upon the employees to cast ballots on the question of whether they
wanted an "inside" or "outside" organization . The ballot slips were blank
slips of paper on which the employees were to write "yes" or "no" and some
of the employees did not understand the wording of the proposition to be
voted on and cast blank ballots. On the afternoon of the day on which the
ballots were cast, Foreman Burkhart called the employees together. The
result of the election was announced as favoring a "company union" and
Burkhart asked them to nominate a president or chairman. When no nomina-
tions were made, Burkhart proposed employee Earl Johnson as chairman and
suggested that they have a representative in each department'
In early March, Washburn met again with Dennis and Schroen to discuss
recognition of the Union . Dennis informed him that the employees no longer
wanted the Union, told of the election, and offered to show him the ballots,
which Washburn refused to inspect. That night Washburn met with the
Union. The next day Garrison and Prolo were again discharged.3 Following
this, Washburn conducted negotiations with the respondent which resulted,
8 or 9 days later, In the reinstatement of Prolo and Garrison with back pay.
On April 10, 1942, the respondent and the Union executed a tentative agree-
ment providing for recognition of the Union as the sole bargaining representa-
tive, for negotiation of grievances, for a closed shop, and for continuation of the
existing seniority rules. The tentative agreement provided that it was to
remain in effect until the execution of, and be incorporated in, a complete
agreement .9
E The concluding portion of the leaflet read :
THE TERMS OF THIS LAW ARE CLEAR AND WE BELIEVE THE LAW IS
ENTIRELY FAIR.
We have never known , however that there are any differences between us and our
employees or of any labor dispute.
THE MANAGEMENT of this company WILL NOT DEAL WITH ANY OUTSIDER
OR ANY OUTSIDE AGENT OR REPRESENTATIVE in regard to any matters
until we are informed that he is authorized to represent A MAJORITY OF OUR
EMPLOYEES.
The law provides for the creation of a "union", "employee association", "com-
mittee", "agency" or "representation plan " formed for the purpose of dealing with
employees concerning any grievances or terms or conditions of employment
Any such committee, agency or representation THAT A MAJORITY OF YOU
EMPLOYEES WISH TO SELECT OR ELECT, the management will be glad to meet
with any time in regard to any grievances , terms or conditions of your employment.
The State Law further provides , however , that it is unlawful for any employee or
for any other person to force or attempt to force any person to become a member of
any labor organization or to refrain from engaging in employment.
We will be glad if you will elect by ballot any committee of 10, 12 or 15 of the
employees provided they are elected by and are authorized to represent a majority
of our employees.
7 Johnson told Dennis that he regarded the chairmanship and the committee - selected as
purely social.
8 Garrison testified that he was informed by a foreman that he was discharged this
time for discussing union activities with another employee . Prolo was similarly told by
a foreman that his discharge was for union activities. On March 13, 1942, the Union
filed a charge with the Regional Director alleging violations of Section 8 (1), (2), and
( 3) of the Act. The charge was withdrawn without prejudice on April 20, 1942.
9 The bargaining unit described will be set forth in a subsequent section hereof.
KALAMAZOO COACHES, INC. 181
When Garrison became a group leader, employee Francis Wikel had been
transferred from the trimming and final assembly department to the paint
department, and a question arose as to whether Wikel had lost seniority
thereby. To settle this, Garrison on May 20, 1942, asked Dennis to meet with
the bargaining committee of the Union, which he did. As a result of the
meeting the matter was settled, but Dennis apparently was not pleased with
the outcome, and, on leaving the meeting, he told Garrison that perhaps he
should give him the keys to the place, and he called Garrison several vulgar
names. Dennis left the plant, returned later slightly under the influence of
liquor, but not drunk, again called Garrison vulgar and abusive names, pushed
his finger into Garrison's nose, and said he would like to smash it. Garrison
became angry and told Dennis that under the circumstances the thing for
Dennis to do was to discharge him again, which suggestion Dennis promptly
acted upon.'°
Subsequent to Garrison's third discharge, the Union, which was holding con-
ferences with Dennis and Schroen concerning the terms of a full contract,
insisted that Garrison's reinstatement be agreed to as a part of the settlement
of issues. At a conference which was being held on June 2, 1942, in the Park-
American Hotel at which Dennis, Schroen, Washburn, Garrison, a Federal
Conciliator and a State Mediator were present, Dennis' dislike of Garrison
proved the major obstacle to a settlement. During a recess, Schroen called
Garrison out into the corridor, told him that because of the way Dennis felt
toward Garrison an agreement would never be reached as long as he insisted
on returning to the respondent's employ and asked Garrison to drop out.
Garrison told Schroen that if he were reinstated with back pay, given the
bonus provided for in the proposed contract, and a recommendation signed
by Schroen, and if the contract were executed, he wou d resign . Schroen
agreed. They returned to the meeting and Schroen announled the arrangement
reached with Garrison. Thereupon the parties signed the contract and the
collateral agreement for the settlement of Garrison's claim , and Garrison
signed a resignation to become effective as of the end of the working day
on June 4.
The discharges of Garrison and Prolo by the respondent on February 26
and in early March 1942 were clearly for the purpose of discouraging union
organization and activities, and by such discharges the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
With regard to Garrison's third discharge, on May 20, 1942, Garrison's sug-
gestion to Dennis that he discharge him, does not, in the opinion of the under-
signed, preclude his discharge from being discriminatory . As Garrison testified,
"You can just take so much." The abuse which led to this discharge grew
out of Dennis' displeasure over Garrison's effort to negotiate the settlement
of a grievance. But for Dennis' antipathy for unions and union activities
the undersigned is convinced that Garrison would not have been discharged
on this occasion The undersigned therefore finds that by such discharge the
respondent discriminated in regard to Garrison's hire and tenure of employ-
ment in violation of Section 8 (3) of the Act.
30 Prior to February 1942, Dennis had not criticised either Prolo or Garrison and had
never before called Garrison names. After February 1942 Dennis treated Prolo rudely
also and several times openly criticised Prolo before other employees although be had
never done so before.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The bargaining relationship of the Union and respondent ; refusal to bargain
The contract of June 2, 1942, was of one year's duration, automatically
renewing from year to year unless amended." Throughout the period covered
herein this contract continued in force unchanged. The charges of refusal
to bargain in this case are in the main not based upon a refusal to recognize
or to contract with the Union in the first instance but rather are based upon
the theory that the respondent, after the making of the contract, though com-
plying in form did not comply with the spirit of true collective bargaining
as contemplated by the Act in its dealing with the Union on matters not
specifically covered by the contract.
One of the principal complaints of the Union concerned the difficulty it
encountered in getting the respondent to deal with the bargaining committee
on individual increases as well as general ones. In order to prevent individual
increases without the knowledge of the bargaining committee, the Union
requested from the respondent a list of wages of the employees. At least
two unsuccessful attempts were made to procure such a list in 1942. Some-
times the respondent would grant raises bargained for by the bargaining
committee, notify the committee when the raise became effective, and sign the
slip indicating that the grievance had been settled. But sometimes the respon-
dent would tell the bargaining committee that it could not give a requested
raise yet two or three weeks later would grant such raise to the individual,
following individual dealing, without notifying the bargaining committee; some-
times the respondent would grant raises bargained for individually only; and
sometimes the respondent refused to sign the grievance slip indicating that
the bargaining committee had settled the grievance. Wilford Lee, as chair-
man of the bargaining committee, during 1943, spoke twice to President
Schroen " about individual bargaining. The first time, he told Schroen that,
under the contract, bargaining was to be done only with the bargaining com-
mittee and not with individual employees. Schroen asked if Lee meant he
could not talk to anyone out in the shop. When Lee told him he could but
not about individual increases, Schroen, according to Lee's credited testimony,
said that he could talk to anyone in the shop about anything he wanted to.
On the second occasion when Lee spoke to Schroen about individual bargaining,
Schroen said if Lee did not like it, why did he not quit. On one occasion
after Lee had succeeded in reaching an understanding with Superintendent
Leonard Wood about individual increases bargained for, Wood refused to sign
the grievance slip as settled because he did not want to "stick his neck out"
in view of Schroen's attitude.
Wood did most of the bargaining for the respondent. He told Lee that
he would back Lee up and would warn individuals who sought to bargain
for themselves but that he could not control it if "management" went over
his head. While Wood sought to live up to the terms of the contract, he
"The parties stipulated at the hearing that the appropriate unit was all employees,
excluding supervisory employees and employees with power effectively to hire or dis-
charge, and clerical employees and confidential clerks employed at the plant. This
essentially agreed with the provisions of the contract. All the employees in the unit are,
by requirement of the closed-shop contract, members of the Union. The respondent did
not contest the majority of the Union. The undersigned finds that, at all times material
herein, the Union represented a majority of the employees in an appropriate bargaining
unit.
In November 1942, for reasons mainly concerning financial matters, the respondent's
board of directors removed Dennis as president and Schroen was made president and
general manager.
KALAMAZOO COACHES, INC. 183
felt that in some matters the bargaining committee was trying to tell him
how to run the Company. The routine prescribed by the bargaining committee
for dealing with individual raises was one example, according to Wood, of
the bargaining committee's trying to run the Company. He resented this.
In further regard to wages, the Union requested the respondent to set up
job classifications with minimum and maximum rates within those classifica-
tions and a plan whereby employees could get automatic increases until they
reached the top of their bracket. At the time, the respondent had no fixed
rates except a minimum which applied to all classifications alike.18 At the
first conference concerning this matter, Wood told the bargaining committee
that the respondent had its own classifications, which Wood gave them. The
committee contended that too many men were put in a residual group and
also that there was no maximum or minimum within the classifications. The
respondent refused to make any changes. The Union's International Repre-
sentative was called in at a second conference, at which the Union had a list
of job classifications and rates established by the International, and a Federal
Conciliator was called into a- third conference. The respondent refused to
change its position and the matter was referred to the War Labor Board.
The respondent's position, as shown by a referee's report, was that the respon-
dent, having few employees, was obliged to transfer about 85 percent of them
from one job to another in order to keep them occupied and that disputes would
result when an employee would be transferred from a higher to a lower paying
job. As to this objection the referee's report stated: "The Company's chief
objection to job classification appears to be a fear that the Union will insist
on the employee receiving his regular rate of pay when transferred to a job
paying less. The Union indicated that this practice is now followed and
this was admitted by the Company." The Regional War Labor Board on
May 11, 1943, issued a Directive Order, directing the respondent and the Union
to renegotiate the question of job classifications and to submit their agreed
classifications or separate claims regarding them. A Second Directive Order
of the Regional War Labor Board on September 25, 1943, ordered the submitted
classifications and rates to be in effect. From this time on the respondent
furnished the bargaining committee with a list of wages and rates of the
employees, and the Union would check its accuracy with the employees. This
practice disclosed that occasionally individual employees had received raises of
which the bargaining committee had not been informed and that the foreman
notifying the employee of his increase had told him not to say anything about
it because it might cause hard feeling or cause others to think they were
entitled to a raise.
Once the bargaining committee complained to the respondent that a foreman
was working overtime without any union member working with him, a practice
expressly forbidden by the contract. Wood said he would speak to the fore-
man about it. The foreman continued his solitary overtime work, however.
When the committee complained again. Wood told them that the foreman
was doing it on his own initiative and the respondent could do nothing about
it. Finally Lee, himself, spoke to the foreman, requesting him to stop the
practice, and the foreman stopped.
On occasions the respondent considered the Union's grievances as substantial
and agreed to improve certain conditions complained of. Some of these were
v The minimum starting rate was provided for by the contract . The contract also
permitted the matter of wages to be reopened at any time by either the Union or the
respondent.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settled, but in several cases the respondent either failed to effect the promised
improvement or delayed to an extent which might cause the most patient
to lose faith in the respondent 's promises . Some of the grievances were
regarded by the respondent as petty and as a waste of valuable time.14
Superintendent Wood felt that many of these minor grievances might have
been settled at lower levels without the whole bargaining committee coming
to him . Wood once told the whole bargaining committee that it seemed to
him they were making up a lot of grievances and coming to the office just to
smoke. But in April 1944 Wood told Lee he was doing too much running
around. Lee explained that he was settling grievances.16 Wood said it was
not necessary for him to settle them and that he should bring them to the
office 1'
About March 1944, when Wood complained that the bargaining committee
was making up grievances in order to come to the office to smoke, he inaugu-
rated a plan , with the approval of the bargaining committee, to meet once a
week and have the foremen present . This plan failed to function satisfac-
torily to the Union because on the appointed day Wood was likely to be too
busy, or the respondent would want to rush a bus out, so the meeting would
be postponed to the following day. According to Lee's credited testimony
the following would then transpire . The committee would ask, the next day,
when the meeting would be, and Wood would say, "Maybe late this afternoon."
Then, about 5 minutes before quitting time, Wood would say, "Come on, boys,
we have a little time. Let's get it over with" Then Lee would refuse to meet
because of the insufficiency of time, and on the following day when the com-
mittee would go to Wood, the latter would say, "What have you got? . . .
We've got to get out a bus. What is the trouble anyway? What is the main
trouble?" The committee would then try to state their case as fast as they
could but they were dissatisfied because they were being rushed"
Wood sometimes told the bargaining committee that he would give raises
requested "to pacify" the boys in the shop. In a bargaining committee confer-
ence with management in early 1944, Schroen, who seldom attended such con-
ferences," was present and, after saying something about pacifying, called
31 Wood enumerated some of the grievances that he considered petty. One was a com-
plaint from the employees who were torch soldering. The respondent had introduced a
new method for them , and they complained that it was too hard on their bands, as
they had to stand on a platform and hold the torch above their heads, and also that the
new method caused a vibration which cracked the solder . Wood told the foreman to
settle the grievance , "if they felt the fellows was going to walk off the job, to use their
own judgment , either they could use the floor type fan for torch soldering as the old
way, the usual procedure , and for the foreman to make the decision, so I left it up to
their own decision ." Another "petty" grievance was a complaint that the clock was off
and the men did not get their full 5-minute rest period.
'" Art. II, Sec . 4, of the contract provided : "Any Committeeman of the Union will be
permitted to leave their department at any time to adjust grievances not in their own
department."
"Schroen testified , "During 1944, there was an awful lot of bickering, carrying this
book around , that they wanted the foreman or the superintendent to sign the grievance.
They would go all over the shop, walking from one end to another, and it seemed to me
like there was so very much of it was uncalled for, and causing a complete disruption
throughout the department ... .
3 The Union held a regular meeting on the first Monday in the month right after work.
Often , however, on such night Wood would ask the men to work right through and the
membership attendance was thereby affected The committee asked Wood not to do that,
and Wood said he would try to remember but never did.
"Schroen testified that he relied on Wood because he did not have time to be a
"referee" to the men.
KALAMAZOO COACHES, INC. 185
the bargaining committee a bunch of kids. Wikel, a member of the committee,
remarked that if they were children so was the management, to which Schroen
replied, according to Wikel's credited testimony, "If you don't like it, why
don't you quit?"
Other examples of the bargaining relationship between the Union and the
respondent will be related in the following section 19
3. The discriminatory discharges of Lee, Wikel, and Stinson
John Wilford (Bill) Lee, previously mentioned, was employed by the respon-
dent as a stray painter in September 1941. Prior to the time of the respondent's
recognition of the Union, Lee's relations with Schroen had been exceptionally
friendly29 One evening during the ante -recognition period of the Union, while
Lee was working overtime, he, Dennis, and Schroen were discussing the forma-
tion of the Union. Dennis asked Lee what he thought of the Union. Lee
replied that he was 100 percent for organized labor but that he had worked
at another shop where a union was being formed and he had participated
and been discharged and he did not wish to be discharged again. Dennis
said Lee need not worry ; if he just "played ball" with them everything would
be all right.n
On April 20, 1942, Lee Joined the Union. In August of that year he was
elected recording secretary . During this period the bargaining committee gave
discouraging reports of their efforts to settle grievances with the respondent.
In January 1943, two of the three members of the bargaining committee
resigned, saying that they were not getting anywhere. Lee asked to be put
on the bargaining committee and he and Al Muller were elected to replace
those who had resigned. The third member of the committee, Francis Wikel,
had been elected in October 1942. The committee elected Lee as chairman.
At the time of Lee's election to the committee there were several grievances
pending. The first was the Union's request for job classification with maximum
and minimum rates therein . This matter was settled as above related.'
The second was the objection to secret individual increases . As previously
related, Lee spoke to Schroen about this matter twice .n Schroen took umbrage
19 The complaint charges that the respondent promoted union officers for the purpose
of preventing them from engaging in concerted activities . The evidence disclosed that
the respondent had promoted two employees to foremanship . One was president of the
Union at the time he was promoted . The other was president at the time he was first
offered the promotion but at the time of his acceptance he was vice president and a
member of the bargaining committee . The respondent did not consult the Union before
offering the promotions, but gave the offerees time to take it up with the membership.
The undersigned finds no basis for inferring that the respondent made such promotions
for the purpose alleged.
$9 Lee's brother was a partner in a firm for which Schroen had worked before he went
with the respondent.
21 This finding is based on , Lee's credited testimony Dennis did not testify,
za Other grievances pending were : ( 1) request for Improved ventilation , which Lee
testified was not settled or Improved while be was working for the respondent . ( At some
time, the date of which was not shown , the respondent Improvised a one -bladed fan to
alleviate the situation caused by dust from the bandsaw , according to Wood's testimony)
(2) a request for a guard for a saw on which accidents had occurred , which the respondent
promised to take care of but did not during Lee 's period of employment ; ( 3) a request
for a welder 's shield to keep the flash from the eyes of the other workmen , which request
resulted in the respondent 's furnishing of a small shield not satisfactory to the men In
the shop ; ( 4) a complaint about sanitary conditions In the men 's toilet which condition
the respondent finally rectified in the fall of 1944
m Schroen admitted on cross -examination that some of the men had spoken to him
about individual increases and that he had spoken to some of them.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at this, regarding Lee's insistence upon such a restriction as an officious inter-
ference with his personal liberty, and unwarrantedly interpreted Lee's state-
ment as an attempt to deny him the privilege of saying "good morning" to
the men. As previously found, Schroen refused to stop talking to the men
about individual increases.
In December of 1943, the Union made complaint to Wood that the plant
was too cold in the morning. Apparently the cold was, several times, the
result of a breakage of the automatic stoker worm. One morning in January
1944, when the men arrived and found the plant cold, they walked out, returning
2 hours later." When Wood spoke to the men, objecting to their walking
out, especially without notice, Lee told him according to Schroen, "We told
you to get it fixed. Why didn't you get it fixed? You have been warned about
it." Wood and Schroen, however, both considered the walkout as unwarranted,
and Schroen concluded that Lee and Wikel were personally responsible"
After Lee was elected to the bargaining committee, Schroen's prior friendly
attitude toward him disappeared. Whereas he had, before January 1943,
received favorable comments on his work, he received only criticism thereafter.
Wikel, who was employed in 1937 by the respondent's predecessor, was, during
the period from about February 1942 to June 1944, working as a painter with
Lee. One night in the summer of 1943 while Wikel and Lee were working
overtime they noticed that Schroen came in quietly and watched them from
behind a bus. Thereafter, Schroen, Wood, or foremen other than their own
frequently watched them. Lee testified that he noticed this more just before
a meeting of the Union or after a meeting of the bargaining committee with
the respondent.
Schroen testified that at various times he would go through the shop to
inspect the work and the employees would volunteer that Lee was getting
too big for his breeches. In February 1944 Lee was elected president of the
Union. As such he continued to sit in on bargaining committee meetings with
management. Wikel became chairman of the bargaining committee. Schroen
reported to Lee in a meeting with the bargaining committee that the men in
the shop had told him that Lee was playing "big shot" ; that the employees
did not have grievances; that Lee was just making them up; and that the
men did not like Lee as president. Lee asked the men at a union meeting
about this and they denied having spoken to Schroen. Schroen spoke to
Wood about the subject, asking him to keep better control of Lee "and see
if it was an indication from the employees themselves . . ." One time Schroen
suggested they call the men together so he could hear from them instead of
from Lee what their grievances were. When the men were assembled, Schroen
asked them if they had anything against him or if they had any grievance
2+ According to Wood's testimony the grievance concerning the lack of heat had pre-
viously been settled by having a man from the time department stay nights and arrive
early to fire up. Presumably this man merely filled the stoker bin because on this occa-
tion, Schroen testified, they had to fire the furnace by hand.
= Schroen testified on direct examination : "I found that most of this was agitation
on the part of Mr. Lee and Mr. Wikel, and maybe one or two others " On cross-exanuna-
tion, in response to a question of whether Lee and Wikel were complaining about the heat
because they were on the bargaining committee and spoke for the men or whether it was
a personal complaint, Schroen answered • "I couldn't exactly say. That was just their
way of doing things, they always had their noses into everything; if there was any kick
coming, they would be the first to squabble about it." Schroen, on cross-examination,
named some of the things into which he regarded Lee and Wikel as "putting their noses"
and the undersigned finds that they were matters which were legitimate subjects for
collective bargaining.
KALAMAZOO COACHES, INC. 187
to present. No one spoke up. Later at a union meeting Lee asked the
men why they had not spoken up. They told him that they did not want to
"stick their necks out" and besides it was the function of the bargaining
committee to present grievances. On another occasion after Lee had requested
Schroen to stop speaking to the men about individual increases, Schroen
insisted that all the men be assembled so that he could ask them about it.
Early in 1944 Wood told Lee and Wikel that he was going to have to split
them up because they were "cooking up" too many grievances.
On Friday, March 17, 1944, the respondent issued a notice to foremen of
an intended increase in the number of busses that were to be made weekly
thereafter. The foreman showed this to Lee. Lee informed Wikel and said
he thought it was a matter that should be discussed with the respondent.
Wikel agreed and arranged for a meeting with Wood. At the arranged time
the bargaining committee and Lee went to Wood's office. Lee addressing
Wood, opened the discussion by asking, "What in the hell is the big push going
on here?" Wood told Lee to watch his language, indicating that an employee
named Miss Dunn was present. Lee suggested to Wood that he ask her to
leave, but Wood said she had her work to do; so she stayed. The bargaining
committee then proceeded to discuss the speed up with Wood, asking how
it was to be accomplished. Wood explained that they had to get more busses
out and the only way to do that was to work a little harder. Lee asked if
Wood thought the men would want to work harder without getting paid more.
Wood said that the employees would have to meet the schedule anyway 2°
On Friday, March 24, without previous warning, Lee and Wikel were dis-
charged. According to contract procedure, the bargaining committee was called
into Wood's office, where Wood and Schroen were, and there Lee and Wikel
were informed of their discharge. They asked the reason. Schroen replied
that they were discharged for misconduct, which he explained was the use
of "strong language" in the presence of a female employee. Then Schroen
added, according to the credited and undenied testimony of Lee and Wikel,
"I will be going into the army soon, and I don't want a couple of 'sabotaging
hoodlums' running this place while I am gone." Lee asked Schroen to define
"sabotage" and Schroen said, ". . . telling the men to lay down on the job,
not to get out production. . . .
Lee called a meeting of the Union for the next day and asked Claude Brice,
International Representative, to be there. At this meeting Lee asked the
members if he had ever asked them to "lay down" on the job and they replied
that he had not. At the meeting It was decided to negotiate for the rein-
statement of Lee and Wikel.
On Monday, March 27, Brice telephoned Wood and arranged a meeting for
that afternoon. Brice and the bargaining committee met with Wood and
the latter refused to reinstate Lee or Wikel. Wood then asked permission to
speak to Brice alone. The bargaining committee consented and left. Wood then
asked Brice to agree that either Lee or Wikel be removed from the bargaining
committee. Brice asked why, and Wood said that they hatched up too many
grievances working together and that some of them were petty and he thought
things would go better if the team were separated. Brice refused to do that and
explained to Wood that it had taken a great deal of time to get adjustments
of grievances and that that caused bad labor relations, and he mentioned also
the fact that many individual increases had been granted, unknown to the
a' Wikel quoted Woods as saying, "If you don't like it, you can kiss it." During the
course of the meeting, Wikel used a few "hells" anc "damns."
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, and told Wood that failure to recognize the fact that this was a matter
for collective bargaining caused disharmony. Wood replied that he was sorry
but that was company policy. Brice listed other grievances that had not
been settled , such as the request for a guard for the saw , the request for
improvement of toilet room facilities, and the speed up. The meeting closed
with Brice's request that Wood prepare a statement of terms on which the
respondent would reinstate Lee and Wikel.
The following day Wood wrote, offering reinstatement to Lee and Wikel
with restoration of their seniority rights but without back pay, on condition
that they should make a full apology "to the group who were in my office on
Friday, March 17, also with the recommendation that one of the above be
removed from the Bargaining Committee giving either the metal or wood
department representation . . .11 27 On the evening of the receipt of this
letter the Union met, and agreed that Lee and Wikel should apologize to the
office girl but turned down the suggestion for removal of one of the two from
the bargaining committee. The following day, Brice and the bargaining
committee met with Wood, who agreed to reinstate the men if they apologized
to Miss Dunn. This was done.
At a meeting following the reinstatement of Lee and Wikel, Wood told the
bargaining committee they were a "bunch of little kids" that made up a lot
of grievances and did not know what they were talking about. Schroen, who
was present, agreed and added, according to Lee's credited and undenied
testimony, "You unions are having your fling now, but after the Presidential
election I think things will get a little different."
,Superintendent Wood, a young man of 27 when he was employed in the
summer of 1942, undertook within a few weeks after his arrival to reduce
overtime work. After a period of slump, when the force was reduced to 16
men, production was increased in late 1942. Whereas they had been producing
a bus a week, the production time was shortened and more employees were
added to the wood and metal shops. No painters were added because the
painters had not been occupied full time with painting and were shifted around
When the respondent began putting out two busses a week, the painters were
occupied full time with painting. It took about 23 to 28 hours to paint a new
bus, including the preparatory work. Thus, if the painters did not work
nights, it would take about 3 days to paint a bus. In 1942 the painters worked
at least one night each week.28 During 1943, when the respondent was trying
to step up its schedule, the painters might be asked to work through until
9 p. in or to come back at 9 or 12 o'clock. They would then put in from 2 to 4
nights a week. Lee and Wikel did not like these hours, although they did
not object to working overtime once in a while. The men in the metal and
47 The last two paragraphs of Wood's letter read :
After discussing this matter with the Union and its representatives , Mr. Brice, I
have come to the conclusion that the Management and the Union can come to a very
satisfactory working condition This can be accomplished only by handling each
case as presented by the Bargaining Committee in a more diplomatic way, and not
ridiculing the supervisory department or the Management in trying to bargain
From today the Union contract will be the sole guidance of any procedure and its
handlings in the future Any deviation from the contract in the past will be dropped
immediately . If this is done, and both parties abide by it, I, in my own mind, know
that a satisfactory agreement can be reached in every manner
21 Wood testified that the other men refused to work in the plant when the painters
were using yellow chromite, so it was necessary to have the painters do that work at
night. Also if a bus reached the paint shop Wednesday night and had to be out on
Friday, the painters would have to work nights.
KALAMAZOO COACHES, INC. 189
wood departments were older, and they refused to work overtime. The
result was that by the time the bus reached the paint shop the respondent was
always pressed to meet its delivery date and the burden of making up time
usually fell to the painters, who were frequently asked to work overtime.
By March 1944, the respondent had about 33 workers but still had 2 painters.
About the latter part of May 1944, Lee went to a doctor to find out why
he was losing weight and had bleeding gums. The doctor advised rest and
no overtime work. Lee went to Wood and asked him to try to get someone
else in the paint department to help him out so he would not have to work
so much overtime. Wood promised to do so. Shortly thereafter the respondent
received an order for five busses. The first one was rushed because the bus
was needed for a run ; so the painters worked all night on it. They asked
Wood not to have them work so hard on the next one but Wood said, "Go
ahead and get this one out. After this it won't happen again." But Lee was
still requested to and did work all night on the third and fourth.
One evening in early June, Acting Foreman Muller S° asked Lee to work
overtime. At first Lee promised to do so but later Lee went to Wood and
said that he would not do so unless he received the raise of 2 cents an
hour which was pending as the subject of bargaining. Wood told him that
the reason he could not get it was because of the way Schroen felt toward
Lee Lee asked if he could speak to Schroen and, with the permission of
the bargaining committee, Lee had a private talk with Schroen in an effort to
improve their relations. Schroen asked what the matter was. Lee told him
that he felt that Schroen was bucking him and hindering the other men in
the Union from getting what they wanted, and then he traced their relations
from the time when they used to play golf together to the time after he got
on the bargaining committee, when Schroen was constantly watching him
and criticizing him. Schroen asked how Lee liked working under pressure.
Lee replied that he did not like it and would like to be relieved of it. Schroen
said, according to Lee's credited and undenied testimony, "Maybe if you would
stop trying to run into this office every five minutes with grievances, and trying
to play such a big shot in the Union, that maybe we will let you off from under
this pressure." With regard to the raise, Schroen told Lee that he would put
him on probation for a couple of weeks and if he behaved himself he would
get the raise at the end of that time. With that, understanding Lee worked
that night.
On June 10, 1944, Wikel was transferred from the paint department to the
trim department. On June 15, Harry Stinson was hired to assist Lee. That
night Lee was requested to work overtime and he refused. Foreman Muller
then asked Stinson if he would work overtime 30 Stinson, who had learned
that Lee was not going to work overtime because he had not yet received the
promised raise, said he did not want to cause trouble with Lee. Muller asked
if he would work if Lee approved, and Stinson said he would. Lee said it was
all right with him, and Stinson consented to work, but reluctantly, as he
lacked confidence in his ability to work without Lee. That night Stinson sanded
a bus, mixed some paint, and started to spray paint the bus. He was not expe-
rienced in enamel work, and the job did not go well; so Stinson checked out
su Muller became foreman officially on June 8, 1944, but for a month prior to that he
had served in lieu of the foreman who was on vacation.
3"Stinson testified that this occurred on the second day of his employment, but the
second day was Friday and would not have fitted with the timing of the other occurrences
he testified to.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in disgust and went home intending to quit. After remaining away a day,
Stinson returned for his pay check . Underkircher , the respondent 's treasurer,
asked him why he had not returned to work , and Stinson told him he did not
want to return , that he did not like working conditions , and that he did not
want to work there until his job was frozen. Underkircher told Stinson he had
just written a letter asking him to return to work but that he had not mailed
it yet ; so he read the letter to Stinson . Underkircher called in Foreman Muller
and asked if there was anything wrong with Stinson's work. Muller said there
was nothing wrong with his work , but that he had mixed his paint a little thin
and had had a little trouble . Stinson returned the following Monday and
worked continuously until the time of his discharge as hereinafter related.
During the first week in July, Muller went to Stinson and told him , according
to Stinson 's undenied and credited testimony , "You are doing your job all right.
I thought you could do it."
On July 3, 1944 , Douglas Ramsay , a customer of the respondent , who oper-
ated a line known as the Colonial Bus Lines in the Carolinas , brought to Kala-
mazoo for repairs a bus he had purchased from the respondent . The bus had
been in a wreck and was badly damaged , one side having been ripped off. Schroen
told Ramsay that it would take five or six working days to repair it . The plant
was closed over July 4. On Wednesday , July 5 the plant was too crowded to
bring the bus in; but the respondent began working on it outside the plant
by removing the torn metal , taking out the seats and luggage racks, and remov-
ing part of the ceiling . Except for repair of the seats that had been taken
inside the plant, nothing was done on the bus until Friday night or Saturday,
when the bus was moved into the plant. The men worked on the bus all day
Saturday and Monday and part of Tuesday.
About 8 :30 or 9 a. m. on Tuesday , July 11, Lee was instructed to get the
Colonial bus ready for painting . At that time the bus was in the metal shop.
All the windows were out except five of the seven windows on the left side of
the bus. Lee looked at the work sheet and noted that it called for replace-
ment of torn jamb rubber. Since the jamb rubber on the five remaining win-
dows was nearly all torn , Lee requested of Foreman Muller that these windows
be removed so that he would not have to spray the inside of the bus with the
windows in. His reason for requesting this was that the enamel fog, which
Is heavy and hangs in the , air, would not be able to escape readily and would
be injurious to his health . New busses never have the windows in when they
are painted inside and the respondent had never had a repair job which had
had to be repainted inside . Muller went to Wood and returned to say that the
windows would not be taken out. Lee then asked Wikel, as chairman of the
bargaining committee, to make out a grievance slip and to take the matter
up with Wood as a grievance . This Wikel did, and after he had procured the
signatures of Lee and Stinson , he and the bargaining committee and Lee took
it to Wood . Wood was adamant , however. Lee attempted to reach Brice by
telephone but was unsuccessful ; so he returned to the Colonial bus where
Stinson was feather edging and did some cleaning work.
At about 10:30 a. m . Lee called a meeting of the executive committee on the
outside of the plant . That committee decided to call Earl Falconer, then
Regional Director of the Union . Lee explained to Falconer the nature of the
grievance . Falconer advised Lee to agree to paint this bus but to file a griev-
ance to see that it did not happen in the future and then told Lee that Brice
would come the next day. Falconer also suggested that Lee ask Wood for the
office fan to put in the bus. The bargaining committee and Lee then returned
KALAMAZOO COACHES, INC. 191
to Wood and told him that Lee would paint this bus if it did not happen in
the future. Wood said "O.K." While they were meeting with Wood, Schroen
walked into the office and remarked, with a vulgar expression of disgust, about
the number of men "wasting time." When Lee said that they were trying
to settle a legitimate grievance, Schroen uttered a vulgar and contemptuous
expression, the nearest proper equivalent of which would be "nonsense." ' The
committee went out, and Wikel prepared a slip for settlement of the griev-
ance on the agreed basis, but when he took it to Wood, the latter refused to
sign it because, he said, they might sometime get a bus for repair where all
the windows were in. This refusal, Wood testified, created quite an uproar.
Wood agreed to lend the painters the office fan, but they did not take it. Wikel
and Lee testified that from their experience the fan would not have been of
much value. Altogether Lee put in only about 1 hour's work on the Colonial
bus between 9 a. in. and noon . Stinson lost about 30 or 40 minutes from work.
At lunch time Lee called another meeting of the executive committee to see
if they wanted him to proceed with the painting without getting a settlement
of the grievance. That committee decided he should proceed with the work.
Early that afternoon the Colonial bus was moved to the paint shop and Lee
and Stinson worked steadily the rest of the day ; by quitting time the primer
was put on " A little after 7 a. in. on Wednesday, July 12, Brice came to the
plant, encountered Wood in the shop, and asked for a meeting. Wood said
he was too busy. Brice said they had a grievance they wanted to negotiate and
they regarded it as important. Wood replied that he knew what the grievance
was and that there was no use of a meeting as they were not going to take
the windows of the bus out.
That same day Schroen talked to Wood and said, "What in the dickens do
they want these windows out for? You can paint a job much more satis-
factorily with the windows in. Haven't you told them to leave the windows
in? What is all the argument about?" Wood replied, according to Schroen,
"Well you know Lee. He is going to have those windows out come hell or
high water . . . ." Schroen told Wood, "Let's put a stop to this monkey-
business, and get down to earth and get some work done on that job." Schroen
testified that he was so mad he was ready to " tear the place loose."
On Wednesday afternoon Ramsay spoke to Wood or Schroen about the length
of time it was taking to get his bus out and, although the painters were not
consulted, he was promised that the painters would work that night. Schroen
thought the painters were just "piddling around" and he told Wood to try
to get them to see that the respondent was justified in asking them to paint
the interior with the windows in "because it is just merely a matter that
anyone with a little common-sense would know, that paint will travel out
a lot faster if the side wall is closed . . . ." Schroen testified that he could
not see any justification "for their bull -headed refusal to work on it," and
he told Wood he had better start cleaning house and get rid of "some of these
fellows we have got on our hands ." He further testified :
I gave him [Wood] complete instructions before I went away [on a trip
to Chicago]. I said, "You know how this fellow Lee is. We fired him
once before for carrying on, and we had to swallow our pride and take
Hl The rest of the time was spent on preliminaries such as feather edging , cleaning,
glazing , sanding, and masking , which required about 4 hours ' time for two men. Schroen
testified that on Tuesday five men were doing the work the painters should have done.
Schroen was mistaken about this. When the bus was in the trim shop, five men were
working on the bus, but they were doing other work, according to Foreman Muller.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him back. You have got to get yourself out of this mess you are in. You
just can't get anything done when they are bucking you all the time."
I just raised the dickens to get the place cleaned up. I was leaving it up
to him.
When Muller asked Lee that afternoon to work overtime, Lee, feeling ill,
explained, and refused Muller's request. Stinson also declined to work
overtime."
During the time from July 5 on, Ramsay spent a good deal of time around
the plant and became familiar with all the men. He passed pleasantries with
them and "kidded" them. By Wednesday, however, Ramsay was beginning
to grow impatient, as he wanted to have his bus back in operation by Saturday.
On either Wednesday or Thursday morning Ramsay was in the paint shop
and told Lee and Stinson in what they took to be a "kidding" way that they
were two of the slowest painters he had ever seen. Lee replied in jest that
maybe it would be 2 or 3 weeks before they would get the bus out." Stinson,
intending to joke but not being so understood by Ramsay, said if Ramsay
would give them 50 cents more an hour they might come back and work that
night. Ramsay said that this was an insurance job and he was not authorized
to pay anything extra. Later he told Wood of this incident and said, according
to Wood, "If I have to do it to get my job home, I will be glad to." The same
afternoon Ramsay returned to the paint room with Muller and asked the
painters to work that night, saying that he would pay them the 50 cents an
hour extra. Lee told Ramsay that Stinson had been joking, that they had
no intention of taking it, and that the enamel that they had been spraying
would not be dry enough that night, anyway, to permit further work. Lee
showed Ramsay and Muller that the paint had not begun to set up yet"
On Friday, July 14, while Lee and Stinson were working on the Colonial bus,
Lee had to strain some paint to refill his gun" Stinson came up to Lee to
have his gun refilled also and was waiting until Lee was through filling his.
At this moment Foreman Muller came up and asked Stinson if he did not
have anything to do. Lee had previously told Stinson he thought they were
being watched and that he should watch his step and work to the best of
his ability. Stinson turned to Muller and asked if Muller had any reason to
discharge him ; if he did, to do it, but if not, to stop riding him. Muller walked
away without saying anything.
On Friday morning the painters had finished spraying the inside top of the
bus, and the bus was moved to the trim shop shortly after lunch time. During
Friday forenoon Foreman Muller had a number of times called Lee off his
work on the Colonial bus to paint parts of other busses." Once he asked Lee
to paint the switch panel and instrument panel on the next bus in line. Lee
at the time was painting the angles on the outside of the windows, a Job that
takes considerable time. Lee, as leadman, sent Stinson on the panel assignment
and continued to work on the Colonial bus.
Schroen had left town on Wednesday and returned around noon on Friday.
On his return, Schroen saw the bus still in the paint shop and learned from
" On Wednesday afternoon Lee lost some time because of the fact that four or five
pails of paint that he procured from the stock room were mislabeled.
" Ramsay testified that Lee said on one occasion that the bus was getting out as fast
as any.
"Lee testified that it takes enamel 12 hours to dry enough to mask. Muller asked Lee
and Stinson to work both Wednesday and Thursday nights. They refused both times
"The paint job called for one coat of primer and two coats of enamel.
W There were similar interruptions of the work on Tuesday,
KALAMAZOO COACHES, INC. 193
Wood and Ramsay that the painters had refused to work nights. Ramsay
complained that the painters had delayed the job. Schroen spent a good share
of the afternoon talking to Wood and Muller "trying to make a solution."
Sohroen, on Muller's suggestion that Stinson was still on his 30-day proba-
tionary period, decided to get rid of Stinson. Then they passed to a consid-
eration of Lee's case and decided to discharge Lee. Schroen testified : "So we
went along to Mr. Lee's situation, and decided, and definitely made up our
mind, I did, that I was going to have a show-down with these boys at four-
thirty, and felt that they would be discharged. As a matter of fact, I had
my mind all made up that he was going to be discharged unless they could
convince me otherwise.
Lee and Stinson worked all Friday afternoon on the Colonial bus, with the
exception of odd jobs which Muller assigned them on other busses, assisting
the trimmers and doing touch-up work.
At quitting time that day, at Schroen's instruction, Muller called the bar-
gaining committee together and told them to come to Wood's office, announcing
that Stinson was being laid off. At this time Muller gave Stinson his check.
Brice had dropped in as he was passing and Schroen invited him in, too. The
committee, together with Brice, Lee, and Stinson, met Schroen, Wood, and
Muller in Wood's office. Muller asked Stinson what he was doing there in view
of the fact that he had received his check, and Schroen told Stinson he had
no business in the meeting as it was no concern of his. Brice then asked why
they were discharging Stinson and Muller said for insubordination and refusal
to work overtime when he was most needed. Schroen interjected that that
was not the reason; that the reason was that Stinson had not completed his
30-day probationary period and they were not satisfied with his services.
Brice checked with the committee who told him it was Stinson's 29th day
of employment and Brice told Stinson that the contract permitted that and that
Stinson should leave and see him that night. When Stinson left, Schroen
announced that they had a "little surprise" for Lee, that they were discharging
him. Brice asked what for, and Muller said for not working overtime"
Schroen said that was wrong, that they were discharging Lee for insubordina-
tion. Brice asked what he meant by that and Schroen said for refusing to
take orders. Lee asked what he meant by that, and Wood said that Muller
had asked him to paint an instrument panel and a switch panel and he had not
done so. Lee said that he had been working on the Colonial bus and he had
told Stinson to paint those parts and that he did not regard that as insubordi-
nation. Brice said that under the contract Lee was entitled to a review before
the bargaining committee, and Schroen replied, according to Brice's, Lee's, and
Wilkel's credited testimony, "This is a review." Brice said he could not see
that and that Lee was not discharged yet because he did not have his check.
Schroen reached under Wood's desk pad and pulled out Lee's check and release
and handed it to Lee. After saying that they would see Schroen later, Brice
left with Lee.
On about July 20, pursuant to a dispute filed by the Union with the State
Mediation Board and the Conciliation Service, a meeting was held in Wood's
office between Brice, the bargaining committee, Schroen, Wood, Steffen, the
respondent's attorney, and a representative of the Conciliation Service. At
this meeting, Schroen gave as reasons for Lee's and Stinson's discharge : not
taking orders from the foreman, that they caused a lot of trouble around the
37 Wood testified that Lee's refusal to work overtime did not enter into his decision to
discharge Lee.
68657?- -46-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, that they had held up construction of the customer 's bus, and had tried
to "bribe" the customer for more money. The respondent refused to reinstate
Lee and Stinson. During the meeting one of the members of the bargaining
committee raised the matter of individual increases which did not go through
the committee . Steffen said that was the respondent 's policy and its right
and that raises would continue to be given that way. The Conciliator explained
that that was a matter for collective bargaining . Steffen then asked if any
grievances remained unsettled and the committee named some . Steffen wrote
them down and said he would see what could be done.
Later that day Brice encountered Schroen and Wood in the lobby of the
Park American Hotel They talked for a while , Schroen saying that Brice was
wrong in supporting Lee and that with him gone they would have better labor
relations in the plant.
4. Conclusions
a. With respect to refusal to bargain and with respect to inter fereaice,
restraint , and coercion
The evidence convincingly establishes that the respondent , after recognizing
the Union as the sole bargaining agent, continued to deal with individuals
about wage increases to the exclusion of the Union and in disregard to the
Union's right to be notified thereof and to be present at the settlement of the
individual grievance. Although Superintendent Wood agreed to channel such
matters through the bargaining committee, President Schroen did quite the
contrary. He emphatically declared his intention to talk to the men about
anything he wanted to, and he continued to deal with individuals concerning
their rates of pay and in certain instances gave the raise through individual
bargaining that had shortly before been turned down in collective bargaining."
Such conduct in itself constitutes a refusal to bargain within the meaning of
the Act 89 In this and in other matters herein related the respondent demon-
strated a misconception of the extent of its duty to bargain. The respondent
never refused to meet the bargaining committee, although it was not always
prompt in keeping its appointments and sometimes attempted to rush the meet-
ings through; but a recognition of the formalities of collective bargaining is
not enough. The Act contemplates that employer and representative of the
employees approach the problem of the settlement of grievances in a spirit of
friendly co-operation, in an effort to find a solution for their differences. This
was not the respondent's attitude. Although the grievances presented clearly
related to wages, hours, and working conditions, the respondent unwarrantedly
regarded some of them as an invasion of managerial functions. In such matters
as those involving the request for wage classification, with maximum and
minimum rates therein and the speed-up, the respondent's mind appeared closed
before bargaining commenced.40 Too often the respondent's attitude appeared
to be: We will grant you an audience to present your grievance and, if we
think that grievance merits action, we will adjust it when we can get around
to it, but, if we think there is no merit in the grievance, we will say so, and
ea Tinder the contract , the respondent had agreed that , if any individual employee
presented a grievance concerning wages , among other things, it would instruct such
employee to take the matter up with the bargaining committee , Thus the respondent
disregarded its contractual as well as its statutory duty
80 Medo Photo Supply Corp v . N L. R R , 321 U. S 1378 : J I Case Co v N L R Il ,
321 U. S 332; Order of Railroad Telegraphers v Railway Express Agency, 321 U. S. 342.
40 This is not to say that an employer Is obliged to grant every demand, but he is
required by the Act to consider legitimate subjects for bargaining with an open mind
KALAMAZOO COACHES, INC. 195
then we do not want any argument about it" Some of the grievances that to
the employees were important, the respondent regarded as petty. With these
the respondent would become irritated and it would seek to discourage them.
It openly showed its resentment to the bargaining committee, criticised them,
called them "little kids," and in other ways belittled them and sought to dis-
courage them in their efforts to represent the Union."
The undersigned finds that, on June 2, 1942, the respondent refused to bar-
gain without imposing an illegal condition, and that, while the respondent
thereafter observed the formalities of bargaining, it failed to engage therein
with an open mind in a genuine effort to find a solution, through bargaining,
to the issues raised by grievances presented, and it by-passed the bargaining
process on more than one occasion. By such conduct the respondent has refused
and is refusing to bargain with the Union within the meaning of Section 8 (5)
of the Act.
The respondent's conduct in connection with the settlement of Garrison's
claim to reinstatement on June 2, 1942, was likewise a violation of the Act.
Dennis' refusal to consummate the proposed contract except upon the improper
condition that Garrison's claim be dropped in itself constituted a refusal by
the respondent to bargain in good faith with the Union. Schroen's undertaking
to appease Dennis' animus for the Union by inducing Garrison to leave the
respondent's employ, although it may been prompted by no malice on Schroen's
part toward Garrison, merely perpetuated the wrongful discrimination. Fur-
thermore, the incident was evidence of the respondent's disrespect for its April
10 agreement of recognition of the Union as the sole bargaining agent. The
deal made privately with Garrison at a time when the respondent and the
Union were assembled for the purpose of collective bargaining is in itself a
refusal to bargain within the meaning of Section 8 (5) of the Act.
b. As to the discharges of Wikel, Lee, and Stinson
If the sole reason for the discharge of Wikel and Lee in March 1944 was for
the use of profanity in the presence of a female employee, their discharge
would not be a violation of the Act. The undersigned is satisfied, however,
At Sehroen testified : . . . even after they were told the windows would be left In,
they still took all day to cause a disturbance and lay down on the job ." The undersigned
believes that if the respondent had made a genuine effort to deal with the painters'
grievance and demonstrated an interest in the employees' problem, a solution could have
been reached satisfactory to both employer and employee.
" The bargaining committee on occasions may have lacked tact and diplomacy , but the
burden of fair and friendly dealing falls on both. The respondent's disregard of its
obligations under the contract and under the Act without doubt provoked harsh words.
If Lee was , on occasion , "bull -headed", the respondent was equally so. As stated by
former Chaiiman Millis in his concurring opinion in Matter of Howard Foundry Com-
pany, 59 N. L. P. B 60: "This case presents a pointed illustration of the need for
special care and forebearance in administration of collective bargaining relationships .. .
The idea, all too prevalent among some employers, that the obligation imposed by the
Act to bargain collectively with majority representatives of their employees ceases upon
the execution of an agreement, and by the same token overzealousness on the part of
union business agents and new committeemen, are both responsible for much industrial
unrest and instability. Square dealing and consideration assume in these days ever
increasing significance . Let resentment and resistance . . . obstruct the peaceful
machinery set up by agreement and the whole purpose of collective bargaining is likely
to fail . . . It is not and must not be a usual function of the Board to enforce or
administer collective bargaining agreements . . . Yet, maladministration of agreements
now and then, but always unfortunately, force the Boaid to intervene in or even to
coi rect situations which impinge upon the law "
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this was not the sole reason. The penalty was out of proportion to the
nature of the offense. The profanity, so far as the evidence discloses, was
limited to "hell" and "damn," words which are so common in men's speecn
now-adays that business women have long ago ceased to be shocked by them.
The evidence has convinced the undersigned, and he so finds, that the principal
reason for the discharge of Lee and Wikel on that occasion was that they
had shown the temerity to criticize management's decision to increase produc-
tion speed without discussing with the Union ways and means as they affected
the employees. By such discharge, therefore, the respondent did interfere with,
restrain, and coerce its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Lee, an aggressive chairman of the bargaining committee and president of
the Union, was not always tactful in his approach of the representatives of
the respondent, as is evident from his opening statement at the meeting to
discuss the speed-up. But some of the statements shown by the evidence to
have been made by management representatives to the bargaining committee
indicate an equal lack of tact. Lee's efforts on behalf of the Union met with
contempt and ridicule from Schroen. The latter paid little attention to what
transpired in bargaining committee meetings with Wood except to note that
such meetings kept the men from their jobs and prevented him from stepping
up the schedule of production. When things went well with the bargaining
committee, it is doubtful that Schroen heard about them, but when Wood would
have difficulty in trying to get Lee to "see management's point of view" then
Schroen would hear about Lee's "bull-headedness." That Lee's activities on
behalf of the Union was a cause of great irritation to Schroen is plain. He
testified that he never had anyone express himself on grievances before as Lee
and Wikel did. He looked upon their activities not as those of union represen-
tatives, which they were in fact, but as individuals who were always sticking
their noses into things that did not concern them. The man he had once been
friendly with became, through his legitimate union activities, which were
distasteful to Schroen, an irritation which Schroen could scarcely endure. But
for the restraining influence of the Act, the undersigned is convinced that
Schroen would have discharged Lee for such activities long before he did.
It required only slight additional cause therefore to induce Schroen to discharge
Lee on the occasions when he did. The nominal cause for Lee's March dis-
charge was his profanity, but the essential cause was Schroen's opinion of him
as a "sabotaging hoodlum" induced by Lee's union activities. Schroen's
appraisal of Lee was utterly lacking in objectivity, in the opinion of the under-
signed. Schroen could view Lee only as a malcontent and as an obstructionist
It can be seen that the turmoil created by the grievance filed on the Colonial
bus job was more than enough added fuel to heat Schroen's disposition toward
discharging Lee to the boiling point.
The respondent adduced testimony giving as reasons for Lee's discharge :
slowness in performing the work on the Colonial bus job; lack of cooperation
on that and other jobs; refusal to take orders; Lee's temperament; and the
attempt to charge a customer extra for overtime. With regard to the first, the
undersigned finds that, omitting the hours when Lee was not working on the
bus because he was processing the grievance or doing other assigned work,
the work did not take more hours than would be normal on such a job. The
testimony shows that Lee and Stinson worked neither faster nor slower than
v Asked if the grievance concerning the windows influenced his decision to discharge
Lee, Wood answered , "Well, I imagine it had a part in the picture, yes."
KALAMAZOO COACHES, INC. 197
usual . While the respondent did not assign Lee's refusal to work overtime as
a cause of discharge," Wood testified that he regarded Lee as non-cooperative
when Lee refused to work overtime on the Colonial bus. In measuring the
speed with which the bus might have been painted from Tuesday afternoon on
the undersigned is satisfied that Schroen was considering the elapsed time and
the failure of the painters to work overtime after he had promised his customer
they would.
The evidence of lack of cooperation was given by Wood and Muller. The
objection appears to be that Lee had occasionally forgotten to paint the under-
side of a bus and had overlooked touching up little spots, such as screws. This
was also characterized by Muller as insubordination " The undersigned cannot
regard the fault as either insubordination or refusal to cooperate. In view of
the rush the respondent was always in after a bus reached the paint shop, it
is not surprising that a few details were overlooked. Muller claimed that he
knew the Colonial bus was unpainted on the underside on Friday afternoon
at 3:30 and that that influenced him in recommending Lee's discharge. The
undersigned does not credit this portion of Muller's testimony. The Colonial
bus job was not completed until Saturday morning, but Muller did not see to
it that the bottom was painted before it was delivered to the customer.
A specific instance of "insubordination" given by Muller was Lee's failure
to paint a switch panel and instrument panel when he directed him to. Bnt
Muller conceded that Lee had,delegated that job to Stinson who had performed
it, that he did not tell Lee he wanted him personally to do the job, that it was
customary for him to leave to Lee the direction of Stinson's work, and that,
although he thought Stinson was not as capable of doing that job as Lee
because it was a "fussy" job, he did not pay much attention to whether or not
Stinson did the work satisfactorily. In the opinion of the undersigned, Muller's
"complaints" about Lee appear suspiciously like an effort to build up reasons
after Lee's discharge had already been decided upon. In any event, the under-
signed finds that, even if such causes did enter into his discharge, Lee's union
activities were the determining factor.
With regard to Lee's temperament, Schroen would have it appear that Lee
was a man with a violent temper who would go into tantrums of rage and
throw things about. The undersigned finds that Lee had a temper which
occasionally flared up when provoked by what Lee regarded as unjust accusa-
tions or unreasonable attitudes of management but that his temper did not
carry him into tantrums in which he threw things about, nor did it result in
any physical violence. Schroen was not testifying from observation as to the
throwing episode and obviously confused Lee with another man who had
thrown a piece of machinery in a fit of temper. That man had been discharged
without opposition from the Union.
"The contract limited the number of required hours of work and Wood testified that
a man could not be discharged for refusing to work overtime.
"Muller testified : " . . . lie would argue with me as to whether or not there was
such a screw that wasn ' t painted, and I was constantly being reminded by Mr Schroen
that there were screws getting by in previous busses that I didn 't know about, and he
had me check them pretty close ." And in another part of his testimony Muller said,
. , he would make me point out particular screws and particular parts that should
have been touched up , that he would leave to see if I would catch them [ a conclusion on
Muller's part ], and I would have to go around and check each thing that I wanted to
make sure was done , and I would tell him about it He would say, 'Okay , I will go
right back and do that ' And he would go back , and he might get half of them and lie
might get all of them , depending on how he happened to feel "
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that Lee did not seek additional compensation from
Ramsay. If he concurred in Stinson 's ill considered jest, this was not one of
the causes for Lee's discharge . Muller not only heard Lee explain to Ramsay
that Stinson was joking , but he saw that the paint was not dry enough to have
,permitted further work even if Lee and Stinson had been willing to work
overtime. Furthermore, this reason was not assigned as a cause by the
respondent at the time of Lee's discharge, but was mentioned for the first time
in the meeting of July 20
The cause assigned for Stinson 's discharge was first given by Muller as his
refusal to work overtime, but Schroen said that was wrong and that the real
reason was that Stinson was on 30 days' probation , which time had not
expired, and that they were not satisfied with him. The undersigned finds that
this was a justification that suggested itself after Stinson's discharge had
already been proposed and decided upon and that the real reason for Stinson's
discharge was the same as Lee's, that is, the delay occasioned by the processing
of the grievance concerning the windows in the Colonial bus together with the
additional influencing factor that the painters refused to work overtime to
make up for the time already lost . The only example of Stinson 's work which
might have been regarded as unsatisfactory was the work he did the night
he worked without Lee at the commencement of his employment. About a
week before Stinson's discharge , Muller told him he was performing his work
satisfactorily . Evidence that Stinson was not discharged for unsatisfactory
service appears in Schroen 's own testimony where he related his Friday's
activities :
So I called Wood into my office and I said, "I don't know how you feel
about this situation , but there has got to he something done damn quick."
He said, "You know we try to do the best we can, but we just can't get
cooperation with Lee and Wikel." It was all in the paint shop and the
trim shop . It was all on that side of the building . So at that time, we
decided with Mr, Wood and Mr. Muller , and I believe Mr . Muller said,
"If you are having so much trouble in the shop here, why don't you get
rid of Stinson ? He is on probation, you have got the right to do It." I
hadn't thought of that just at the time.
The "trouble" Schroen was concerned with was the grievance procedure that
interfered with production schedules. A couple of discharges would suffice to
curb the tendency to press grievances.
With Stinson as with Lee nothing was said about Stinson's suggestions to
Ramsay of extra overtime pay until the meeting of July 20 . Even when Ram-
say told Wood about it, Wood made no effort to speak to Stinson about it.
Wood's failure to pursue the matter suggests that Wood learned that Stinson
had not seriously intended to accept additional compensation . In any event
It is clear from the record that this incident was not regarded by the respondent
as the reason for Stinson's discharge. It is found therefore that the respondent
discriminated in regard to the hire and tenure of employment of Wilford Lee
and Harry Stinson by discharging them on July 14, 1944, and thereafter1refus-
ing to reinstate them. By the discharge of Lee and Stinson for engaging in
legitimate union activities, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in the Act.
c. As to interference , restraint , and coercion
The undersigned finds that by the discharge of Union President Garrison
and Financial Secretary Prolo in February and March 1942, and the discharge
KALAMAZOO COACHES, INC. 199
of Garrison in May 1942; by inducing Garrison to resign in June 1942; by
refusing to bargain with the Union in June 1942, except upon an illegal condi-
tion ; by the statement by respondent's President Dennis in February 1942, to
a group of employees that the respondent would not deal with an outsider,
but would deal with an "inside" organization, the suggestion that the employees
elect a "committee," the conduct of a ballot thereon, and Foreman Burkhart's
proposal of a certain employee as chairman of the "committee"; by the conduct
of Dennis in calling Garrison vulgar and abusive names in May 1942; by
Schroen's going over the heads of the bargaining committee to assemble the
employees to question the bargaining committee's statements ; by the respond-
ent's efforts to effect the removal of Lee or Wikel from the bargaining com-
mittee ; by Schroen's effort to discourage Lee's union activities by promising
to relieve him of pressure if Lee would curtail such activity ; and by the
respondent's acts that have heretofore been found to be violations of the Act,
the respondent has interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations described in Section 1, above, has a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing, commerce
and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in and is engaging
in unfair labor practices, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
It has been found that the respondent by discharging Charles Garrison and
Irwin Prolo in February and March 1942 committed unfair labor practices. In
each instance the respondent reinstated them with back pay. It has also been
found that the respondent again committed an unfair labor practice by dis-
charging Garrison on May 20, 1942. It has been found that this discharge
was not completely remedied since the respondent agreed to a reinstatement
of Garrison only on condition that he resign. While Garrison accepted such
condition, his acceptance did not remedy the wrong. The respondent's act of
requiring Garrison's resignation as a condition to entering into a collective
bargaining agreement, was a violation of a public.statute which cannot effec-
tively be settled by an individual. The undersigned will therefore recommend
that the respondent offer Charles Garrison immediate and full reinstatement
to his former or substantially equivalent position without prejudice to his
seniority or other rights and privileges. Since no charge was filed on Garrison's
final discharge, and, for a period of nearly 3 years, no claim was made that
it constituted an unfair labor practice, the undersigned will recommend that
the respondent make Garrison whole for any loss of pay he may have suffered
by reason of its discrimination against him by payment to him of a sum of
money he would normally have earned as wages only from April 27, 1945, (the
date of the amendment to the complaint when his last discharge was first
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
averred to constitute a violation of the Act) to the date of the respondent's
offer to reinstate him, less his net earnings4i during such period.
It has been found that the discharge of Lee and Wikel in March 1944, was
an unfair labor practice, but they were both reinstated without prejudice to
their seniority and other rights and privileges and given full back pay. The
only remedy now necessary to remove the effects of that unfair labor practice
will be the posting of the notice hereafter recommended.
It has been found that the respondent discriminated in regard to the hire
and tenure of employment of John Wilford Lee and Harry Stinson by dis-
charging them on July 14, 1944, and thereafter refusing to reinstate them. It
will therefore be recommended that the respondent offer to each of them imme:
diate and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privileges, and
make them whole for any loss they may have suffered by reason of the respond-
ent's discrimination against them by payment to each of them of a sum of
money equal to the amount he normally would have earned as wages from
the date of his discharge to the date of the respondent's offer of reinstatement,
less his net earnings48 during such period.
It has been found that the respondent at the outset refused to bargain with
the Union without imposing the illegal condition of Garrison's resignation and
that thereafter the respondent has failed to sustain its obligation to bargain
within the meaning of the Act. It will therefore be recommended that the
respondent cease and desist from such practices and, on request, bargain with
the Union as the exclusive representative of all its employees in the appropriate
unit.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Automobile Workers, A. F. L., is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Charles Garrison, John Wilford Lee, and Harry Stinson, the respondent has
engaged In and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
3. All employees, excluding supervisory employees with authority to hire,
promote, discharge, or discipline, or otherwise effect changes In the status of
employees or effectively recommend such actions, clerical employees, and con-
fidential clerks, employed at the respondent's plant, constitute a unit appropri-
ate for the purposes of collective bargaining, within the meaning of Section 9
(b) of the Act.
4. United Automobile Workers, A. F. L., was on April 10, 1942 , and at all
times thereafter has been, the exclusive representative of all the employees in
the above-described unit for the purpose of collective bargaining within the
meaning of Section 9 (a) of the Act.
&' By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N. L. it. B. 440. Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered
as earnings. See Republic Steel Corporation v. N. L. R. B, 311 U. S. 7.
u See footnote 47, supra.
KALAMAZOO COACHES, INC. 201
5. By refusing on June 2; 1942, to bargain except upon an illegal condition,
and by refusing thereafter to bargain with the Union by discouraging its
employees from exercising their rights collectively to bargain and present
grievances, and by failing and refusing to bargain exclusively with the Union,
the respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The respondent has not violated the Act by promoting officers of the Union
to the positions of foremen.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that the
respondent, Kalamazoo Coaches, Inc., its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Discouraging membership in United Automobile Workers, affiliated with
the American Federation of Labor, or in any other labor organization of its
employees by discharging or refusing to reinstate any of its employees or in
any other manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of their employment ;
(b) Refusing to bargain collectively with United Automobile Workers
A. F. L., as the exclusive representative of all its employees in the above-
described appropriate unit ;
(c) Discouraging the representatives of the Union from presenting grievances
to it and from negotiating thereon ;
(d) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join or assist United Automobile Workers, affiliated with the American
Federation of Labor, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Charles Garrison, Wilford Lee, and Harry Stinson immediate
and full reinstatement each to his former or substantially equivalent position
without prejudice to his seniority or other rights and privileges ;
(b) Make whole said Garrison, Lee, and Stinson in the manner set forth
in the section entitled "The remedy" above ;
(c) Upon request bargain collectively with United Automobile Workers,
affiliated with the American Federation of Labor, as the exclusive representa-
tives of all the respondent's employees included in the above-described appro-
priate unit ;
(d) Post immediately at its plant in Kalamazoo, Michigan, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Fourth Region, shall, after being
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duly signed by the respondent's representative, be posted by the respondent
immediately upon the 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 the respondent to insure that said notices are not altered, defaced, or covered
by any other material.
It is further recommended that, unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recom-
mendations , the National Labor Relations Board issue an order requiring the
respondent to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of
a statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions an&/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing within ten (10) days from the date of the
order transferring the case to the Board.
JAMES It,. HEMINGWAY,
Trial Examiner.
Dated July 26, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
PURSUANT TO RECOMMENDATIONS OF A TRIAL EXAMINER
of the National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist UNITED AUTOMOBILE WORKERS, A. F. L., or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the
discrimination.
CHARLES GARRISON , JOHN WILFORD LEE, HARRY STINSON
We will bargain collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit
KALAMAZOO COACHES, INC. 203
described herein with respect to rates of pay, hours of employment or
other conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is:
All employees, excluding supervisory employees with authority to hire,
promote, discharge or discipline or otherwise effect changes in the status
of employees or effectively recommend such actions, clerical employees,
and confidential clerks employed at our plant in Kalamazoo, Michigan.
We will not bargain with individual employees concerning wages or
rates of pay. Individual employees may personally present grievances to
us, but such grievances will be adjusted only through negotiations with
the duly selected bargaining representative of the employees in the afore-
said appropriate unit.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
to hire or tenure of employment or any term of condition of employment against
any employee because of membership in or activity on behalf of any such
labor organization.
KALAMAZOO COACHES, INC.
Employer.
NOTE : Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.