Superior Coach Corp.

PATHFINDER COACH DIVISION OF SUPERIOR COACH CORPORATION 87 PATHFINDER COACH DIVISION OF SUPERIOR COACH CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO. Case No. 15-CA-406. January 9,1953 Decision and Order On July 14, 1952, Trial Examiner John H. Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions and a supporting brief.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson]. 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 brief and exceptions, and the entire record in the case and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the following additions, correc- tion,2 and modifications. 1. The Trial Examiner found that the Respondent, by certain activities of Director of Personnel McMillan and Foreman Chaney,s interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. We agree with these conclusions. However, we limit the grounds for our findings to the following: (a) McMillan's interrogation of employee Shaw; (b) McMillan's speech to employees wherein he stated that he knew who had attended the union meeting; (c) McMillan's surveillance of the union meeting at a The Respondent's request for oral argument is hereby denied , as the record, the excep- tions, and its brief adequately present the facts, issues, and positions of the parties. ' We note and correct the following inadvertent error in the Intermediate Report: The Respondent filed its answer to the complaint on March 3, 1952, rather than on March 8, 1052, as the Trial Examiner found. $ William Ward McMillan, as found by the Trial Examiner , is director of personnel at the Employer's plant. He hires all employees , except in certain executive positions, for all departments of the Respondent's plant , is personnel consultant ; and handles public relations at the plant M. H. Chaney is foreman of assembly line No. 1 at the Respondent's plant, and he responsibly directs the work of approximately 31 employees Chaney is a supervisor. It is clear , and we find that McMillan and Chaney are representatives o' management and that their conduct is attributable to the Respondent 102 NLRB No. 20. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Curbo's home on August 22, 1951; and (d) Chaney's interrogation of employee Hammett 4 2. The Trial Examiner found, and we agree, that the Respondent discharged Self, Simmons, and Hammett because of their member- ship in and activities on behalf of the Union. The Respondent argues, in effect, that these employees were all discharged because of unsatisfactory work, and as a part of the general policy of the Re- spondent to weed out incompetence at a time when work had slowed down due to a shortage of parts and other materials. In support of its position that this was the sole reason for the dis- charges, the Respondent points to the fact that it discharged eight other employees about that time for similar reasons. However, al- though the cases of those eight are not before us, we fail to see how that fact, even assuming Respondent's dissatisfaction with the work of those eight, tends to establish either the unsatisfactory work of Self, Simmons, and Hammett, or the nondiscriminatory character of their discharges. On the issue of whether these employees were unsatisfactory work- ers, we are satisfied, for the reasons noted by the Trial Examiner, that these individuals were not unsatisfactory employees. Indeed the credi- ble testimony establishes that Simmons knew more about jigs than anyone in the pool; that Simmons' pool leader never spoke to Sim- mons personally about his alleged slowness, that Self and Simmons did good work; that Inspector Adams never returned work to either Self or Simmons; that Hammett got a wage increase a few weeks before the discharge; that Hammett's pool leader never criticized his work, never notified Chaney of unsatisfactory work by Hammett, and was never spoken to by Chaney about Hammett's work; and finally, that there is no showing that any of them refused work when assigned. In addition, we note the circumstances that these three welders were discharged at a time when welders were in scarce supply; that con- trary to the Respondent's representation in its speech of August 24, 1951, to the employees that they would be "notified when your work is not up to standard, will be given a chance to improve," these em- ployees were never told that they were being given that chance, and were discharged summarily without any prior discussion as to the reasons for their discharge. Moreover, when we add to all the fore- 4 We find no merit in the Respondent 's contention , in effect, that it did not violate the Act by its remarks and inquiries concerning union activity addressed to the employees. Apart from other considerations, it is clear that the interrogation when viewed in a background of surveillance and violations of Section 8 (a) (3), as here , exceeded the protection accorded to the Respondent under Section 9 (c) of the Act, and violated Section 8 (a) (1) of the Act. S. D. Cohoon and D . F. Cohoon, Partners, d/b/a S. D. Cohoon d Son, 101 NLRB 760. PATHFINDER COACH DIVISION OF SUPERIOR COACH CORPORATION 89 going, that these three employees and one Gordon Allen 5 were the only ones who had signed union cards at the time and that the Re- spondent was opposed to unionization, as evidenced by the interro- gation of its employees about union activities and the surveillance of a union meeting, we conclude, as did the Trial Examiner, that the the discharges were violative of Section 8 (a) (3) and 8 (a) (1) of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Pathfinder Coach Division of Superior Coach Corporation, Kosciusko, Mississippi , its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Engaging in surveillance of union meetings. (b) Interrogating employees concerning their union membership and activities. (c) Discouraging membership in International Union, United Au- tomobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, or any other labor organization of its employees, by dis- criminating in regard to their hire or tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above Union, 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, or to refrain from any or all of such activities except to the extent that such right may be affected by agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Archie L. Self, Abraham Hammett, and Woodrow Simmons, immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to their seniority or other rights or privileges, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respond- ent's discrimination against them. 9 The fact that Respondent did not also discharge Allen loses its significance due to the fact that Allen was a brother of Foreman Grady Allen , and McMillan admitted that he talked to Grady Allen about his brother's attendance at the union meeting. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- ords necessary or convenient for the analysis of the amount of back pay due under the terms of this Order. (c) Post at its plant in Kosciusko, Mississippi, copies of the notice attached hereto marked "Appendix A." 6 Copies of such notice to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of 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. (d) Notify the Regional Director for the Fifteenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT engage in surveillance of union meetings. WE WILL NOT interrogate our employees concerning their union membership and activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IM- PLEMENT WORKERS OF AMERICA, UAW-CIO, 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 protec- tion, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. $ In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." PATHFINDER COACH DIVISION OF SUPERIOR COACH CORPORATION 91 WE WILL offer to Archie L. Self, Abraham Hammett, and Wood- row Simmons, 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 against them. All of our employees are free to become or remain or to refrain from becoming or remaining members of INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO, or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. PATHFINDER COACH DIVISION OF SUPERIOR COACH CORPORATION, Employer. Dated -------------------- By -------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon an amended charge duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, respectively called herein the General Counsel and the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated February 21, 1952, against Pathfinder Coach Division of Superior Coach Corporation, herein called the Respondent, alleging that the Respondent has en- gaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended herein called the Act. With respect to the unfair labor practices, the complaint alleges that the Respondent (1) on or about September 6, 1951, discharged Archie L. Self, Abraham Hammett, and Woodrow Simmons and thereafter failed and refused to reinstate them because of their membership in and activities on behalf of the Union and because of their concerted activities; and (2) engaged in certain acts which interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The Respondent filed an answer on about March 8, 1952, in which it admitted the jurisdictional allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held at Kosciusko, Mississippi, on April 2 and 3, 1952, before the undersigned Trial Examiner. The General Counsel and the Respondent were represented by Counsel, and the Union by its representa- 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce eN idence bearing on the issues was afforded all parties. At the start of the hearing, the General Counsel moved to strike an allegation of the Respondent's answer. The motion was denied. The Respondent moved to amend its answer. The motion was granted without objection. At the close of the hearing, the General Counsel moved to conform the pleadings to the proof, as to names, dates, and other minor variances. The motion was granted with- out objection. Counsel did not present oral argument at the hearing. The General Counsel has filed a brief with the Trial Examiner. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio Corporation , having its principal office and place of business in Lima, Ohio , where it is engaged in the manufacture of school busses, hearses, and ambulances. The Respondent also operates a plant in Kosciusko, Mississippi, known as the Pathfinder Coach Division. This pro- ceeding is concerned only with the Kosciusko plant. At this plant the Re- spondent is engaged in the manufacture of school busses and commuter-type busses for the United States Government . Products from Respondent 's plants, including the Kosciusko plant, are distributed throughout the United States. In the course and conduct of its business , the Respondent during the year preceding the issuance of the complaint purchased raw materials for its Lima plant having a value of more than $1,000,000, of which in excess of 50 percent was transported in interstate commerce from points outside the State of Ohio to its Lima plant. During the same period the Respondent caused large quanti- ties of its finished products , having a value in excess of $2,000 ,000, to be trans- ported, sold , and distributed in interstate commerce from its Lima plant to points outside the State of Ohio. Since May 1951 to the time of the issuance of the complaint, the Respondent purchased raw materials for its Kosciusko plant having a value in excess of $1,000,000, of which in excess of 50 percent was transported to said plant from points outside the State of Mississippi . During the same period , the Respondent caused large quantities of its finished products having a value in excess of $2,000,000 to be transported , sold, and distributed in interstate commerce from its Kosciusko plant to points outside the State of Mississippi. The Respondent admits in its answer that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America , UAW-CIO, is a labor organization which admits to membership employees of the Respondent. M. THE UNFAIR LABOR PRXCTICES A. Background ; sequence of events The Respondent's plant was built during the early part of 1951 . Employees were hired for erection purposes during about March. During about the early part of July, they were transferred to production . The first bus was completed on August 4, 1951. PATHFINDER COACH DIVISION OF SUPERIOR COACH CORPORATION 93 On May 15, 1951, Homer Curbo, Jr., a representative of the Union, came to Kosciusko and commenced organization of the Respondent's employees. Y. R. Schively, vice president of the Respondent and general manager of the plant, made a speech to the employees concerning the Union on June 28.' On August 21, Curbo distributed the first union leaflet to employees. It was passed out in front of the plant and notified employees of a union meeting to be held on August 22, at Curbo's home in Kosciusko. As will be hereinafter related and found, the Respondent engaged in surveillance of the Union's meet- ing on the night of August 22. Dwayne Shields, assistant general manager of the plant, read a speech to all of the day-shift employees on August 24. He referred to Curbo and the Union, and told the employees that Respondent's "Group Accident and Health Insur- ance Plan" would be "announced before long." The same speech was read to the night shift by William McMillan, personnel director for the plant' Because of a shortage of parts, the Respondent cut its workweek to 3 days at sometime during about the latter part of August. However, daily produc- tion was not reduced. The Respondent discharged the three employees named in the complaint on September 6, 1951. Eight other employees were discharged by the Respondent between September 1 and 10. B. Interference , restraint, and coercion At sometime during June 1951, McMillan went to the home of employee Frank Shaw. He asked Shaw if Curbo had come to see him. When Shaw admitted that he had talked to Curbo, McMillan inquired, "Does his proposition sound pretty good?"' It is found that McMillan's interrogation of Shaw constitutes interference, restraint, and coercion. As related above, the first union meeting was held in Curbo's house on the night of August 22. The meeting was attended by about 15 or 20 employees, including Stella Latham. Frank Thorpe, a supervisory employee, drove Latham to the meeting in one of Respondent's cars. He remained in the car while it was parked near Curbo's home.' That same night, the Kosciusko police drove by Curbo's home with McMillan in their car. At McMillan's request, they drove at a slow rate of speed past the house while he noted the license numbers of the parked cars. When they returned to the police station, McMillan checked the license numbers with the county registration book in order to determine the owners of the cars.` It is found that Thorpe and McMillan engaged in surveillance of the Union's meeting, and that by such action the Respondent interfered with, restrained, and coerced its employees. On August 23 Foreman Chaney came to employee Abraham Hammett' s place of work and questioned him about the union meeting. Concerning his conversa- tion with Chaney, Hammett testified credibly as follows : ? Schively read his speech from a prepared statement , a copy of which was Introduced in evidence . Marked as appendix A, it is attached hereto and made a part of this report. 2 A copy of the speech was received in evidence. Marked as appendix B, it is attached hereto and made a part hereof. S McMillan's testimony indicates that he questioned a number of employees concerning the Union. + McMillan testified that Latham and Thorpe came to his home before the meeting ; that Latham told him that she was going to attend the meeting ; that he told her that she should not go; and that Thorpe and Latham married at a later date. d Dave Jones, a police officer of Kosciusko, testified credibly concerning the above incident Involving McMillan. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I was up there working and he walked up to me and he asked me if there was a good many people at the meeting, and I told him "yes." He said he came by there that night and seen a good many cars. He asked me what was the meeting about, and I told him about different things, and that was all that was said. I went to work and he walked off. It is found that Chaney's interrogation of Hammett constitutes interference. As related above, Shields made a speech to the employees on August 24. The General Counsel contends that the timing of the announcement of the insurance plan and the threat of "weeding out" employees were violative of the Act. This contention is rejected. Shields did not promise the employees any benefits if they would forego the Union. He stated specifically that the employees would receive insurance and other benefits "whether or not you have Mr. Curbo's union or anybody elses union." Further, while discussing the possible discharge of employees', Shields did not mention the Union. In this connection, he men- tioned employees who "won't make the grade . . . a very few deadheads slowing up the whole works." It is clear that he was referring to employees who were performing unsatisfactory work. After Shields' speech, McMillan also made a short talk to the employees. Among other things he stated that he knew who had attended the union meeting.6 It is found that McMillan's statement constitutes interference. 0. The discharges Archie Self, Abraham Hammett, and Woodrow Simmons attended the union meeting on August 22. They and employee Gordon Allen were the only em- ployees who signed union-designation cards out of the 15 or 20 employees who attended. About 1 week after the union meeting, McMillan went to the home of employee L. D. Kinard. Concerning his conversation with McMillan , Kinard testified credibly as follows : He said he came over to talk to me, not as personnel manager, just a visit and as man to man, and telling me what the people had done to get the plant in here and wished that, well, lie wished that I wouldn't have nothing to do with the Union. I could do whatever I wanted to ; he wasn't asking me not to; he just wished I wouldn't . . . . Well, we was just talking, said Mr. Simmons, he didn't know what he was going to have to do with him, seems like he was slow or something. On September 6, 1951, the Respondent discharged Self, Hammett, and Sim- mons. Simmons was given a slip which stated the reason for discharge as "unsatisfactory work." At Simmons' request, McMillan changed the reason for termination of employment so as to show that he had resigned from his job. The Respondent contends that Self and Hammett were discharged because they were "incompetent workmen," and that Simmons "voluntarily quit after a discussion with the company management, at which time said employee was advised that his work was wholly unsatisfactory." Concerning the reason for Hammett's discharge, Foreman Chaney testified, "Because it looked like he wasn't taking an interest in his work, wasn't trying to do it, and, like I say, about a month before he was discharged it seemed as though he got to where he didn't care, and I was constantly having to watch his work . . . he just didn't seem to try to do as well as he had previously done." With respect to Self, Chaney testified, "Archie Self was a good welder as far as his welding was concerned, but he was exceptionally slow. He didn't seem 0 Hammett , Hugh Kinard , and Woodrow Simmons testified credibly to the above. PATHFINDER COACH DIVISION OF SUPERIOR COACH CORPORATION 95 to be the type of fellow that really wanted to take an interest in his work and really help get the job done, and he more or less just wanted to weld altogether. In the particular pool that he was in, he was asked to do other work than weld, and he didn't seem to want to do anything but weld and that is all he did." Chaney also testified that when Self was not welding, lie talked and smoked ; and that he warned Self "several times" to improve his work. Concerning Simmons, Chaney testified, "Well, Simmons was another excep- tionally slow worker. The work he did was good. I didn't find any fault in the work of his, but he was unusually slow and he seemed to have the attitude that lie knew what a day's work was and that is all he would do. I was after his pool leader several times to try to get him to pitch in and help get the job done. He was always saying, `well they get so many today, they want more tomorrow,' and the rest of the fellows in his pool was helping do his work in order to carry on." The Respondent's surveillance of the union meeting on August 22 has been related above. McMillan admitted that two employees gave him the names of all the employees who had attended the meeting. In addition to McMillan and Thorpe, it appears that Chaney also engaged in surveillance of the meeting. This is apparent from his conversation with Hammett on August 23, related above. From all the evidence there can be no question but that the Respondent knew which of its employees were the most active union adherents. The evidence shows that the Respondent discharged 3 of the 4 employees who signed union cards at the meeting. Gordon Allen, the fourth card signer, was a brother of Foreman Grady Allen. McMillan admitted that he talked to Grady Allen about his brother's attendance at the union meeting. From the evidence it is clear that the General Counsel has made out a prima facie case. In my opinion, the Respondent has not proved by substantial evidence that the employees were discharged for cause. Respondent's contention that Simmons "voluntarily quit" is rejected, since it is undisputed that Simmons requested the change on his termination slip after he had been discharged, Self, Hammett, and Simmons were welders. Although McMillan admitted that skilled light-gauge welders were scarce and although there were only 10 welders on Chaney's frame line, Chaney discharged 3 of them for the alleged reasons that they were slow and did not take an interest in their work.' Chaney's testimony in this respect was vague. There is no specific evidence that any of the 3 employees ever refused to perform the work assigned to him. Self admitted that about 3 days before his discharge Chaney told him that he would have to "speed up" his work. He testified that otherwise his work was never criticized. Simmons testified that he was criticised for his work only once, that on that occasion Chaney told him that he was slow and would have to speed up, and that this occurred shortly after the union meeting. Hammett testified that he was never criticized for his work.' The record shows that he received a wage increase some few weeks before his discharge. The testimony of witnesses for the General Counsel contradicts the Respond- ent's claim that Self, Simmons, and Hammett were incompetent employees. 4 The evidence discloses that Self was replaced by a welder who was hired a few days before his discharge. ® Robert Adams testified that during August he was inspector on Chaney's frame line ; that Hammett "in lots of cases in his welding he was burning holes through the wheel- housing and also leaving nuts off the bolts where they were bolted down to the underbody ;" that such faulty work had to be done over ; that he called it to Hammett's attention "a few times" ; and that he spoke to the foreman about it. -Adams attended the union meeting on August 22. He was a foreman at the time of the hearing Hammett testified that while he was welding his helper was supposed to put the nuts on the bolts. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee L. D. Kinard testified credibly that Simmons "didn't stop and stand up. He was slow-gaited, but seemed like he turned off as much work as any- body else." Employee Hugh Kinard, a welder with 8 years' experience, testified credibly that he and Self were in the same pool and that Self was as fast a welder as he. Ezra Ellis, Hammett's pool leader, testified that he never criticized Hammett for his work and that as a worker he was "all right." Employee George Harrell testified credibly that he worked as a welder in the same pool as Simmons, that Simmons was a "good worker," and that Simmons "knew more about the jigs than any man in the pool." io Accordingly, for the above reasons and from all of the evidence, I find that the Respondent discharged Self, Simmons, and Hammett because of their mem- bership in and activities on behalf of the Union. 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 of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that the Respondent on September 6, 1951, discharged Archie L. Self, Abraham Hammett, and Woodrow Simmons because of their adherence to the Union. It will he recommended that the Respondent offer them immedi- ate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges. It further will be recommended that the Respondent make whole said employees for any loss of pay they may have suffered by reason of Respondent's discrimination by pay- ment of a sum of money equal to that which they would have earned as wages from the date of the discrimination to the date of an offer of reinstatement, less their net earnings during said period. Said loss of pay shall be computed on the basis of each separate calendar quarter, or portion thereof, during the period from Respondent's discriminatory action to the date of the offer of re- instatement. The quarterly periods, herein called "quarters" shall begin with the first day of January, April, July, and October. Loss of pay shall be de- termined by deducting from a sum equal to that which the employee would nor- mally have earned for each such quarter or portion thereof, his net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. In order to ensure compliance with the foregoing back-pay and reinstatement provisions, it is recommended that Respondent be required upon reasonable re- quest, to make all pertinent records available to the Board and its agents. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : 0 McMillan testified that pool leaders would know whether employees performed good or bad work. 10 Pool Leader Benton fling, a witness for Respondent, admitted that the quality of Simmons' work was good. He testified , however, that Simmons was "very slow." PATHFINDER COACH DIVISION OF SUPERIOR COACH CORPORATION 97 CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Im- plement Workers of America, UAW-CIO, 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 Archie L. Self, Abraham Hammett, and Woodrow Simmons, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the ex- ercise of the rights guaranteed in Section 7 of the Act, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A Talk by Y. R. Schively at Employee Meeting at 1: 00, June 28, 1951 Ladies and Gentlemen, My Fellow Pathfinder Employees- I am going to read this message to you, because it concerns a subject with which I must exercise extreme caution in what I say. Therefore, in order that this talk may be on record for future reference, I am reading it from typewritten copy. This talk concerns union organizing. The right of free speech guarantees you the right to discuss unions, and it gives me the right to state the position of Pathfinder management. At the beginning, let me make it clear that no threat is stated or implied herein, if you decide to organize-nor is any promise of benefit from the company stated or implied, if you decide not to organize. There is a representative of CIO, United Auto Workers, who is now living in Kosciusko at 717 Fairground Street. He is calling upon you Pathfinder people in your homes. In one instance that we know of, he told an employee's wife that he was from the Pathfinder office, left the impression that he was a member of Pathfinder supervision. In another instance he told an employee that the company had furnished him the list of all people now working so that he could call on them. He has,, by implication, on several occasions left the impression that he is calling upon you at our request. That, ladies and gentlemen, is a bald-faced lie. Management does not favor UAW-CIO over any other union. We take the position here and now of inform- ing you, for the record, that we hope that you did not affiliate yourselves with any such organization. In other words, we don't want CIO or any other union in our plant. Briefly, here are our reasons : (Number 1) The mainstay of all union contracts is the seniority clause. All promotions, layoffs, raises, transfers, etc., are based strictly on seniority. In getting this plant in operation, using a completely new and mostly untrained work force, there is going to be considerable shifting of personnel. Outstanding men are going to be elevated quickly to supervisory positions in many instances. You may already know that only a minimum of supervision will be transferred from the Lima plant. All others will be hired locally or elevated through the ranks. Seniority is no basis for promotion-we want to be free to promote you, raise your pay, on a basis of individual merit. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Number 2) In the process of organization, even though management re- mains strictly neutral, there will be some of you men quite strongly for a union, others just as strongly against. Your own arguments and ill feelings between yourselves will hinder production. We have already lost 90 days of production. The whole future of our operation here now depends on getting started into production as quickly as possible and continuing it without interruptions. (Number 3) We are interested in you. Mr. Curbo, the CIO organizer, care nothing for you as an individual. You are just a "job" to him. He is getting paid, and well paid, may I say, to organize this plant. For your information, his salary is $80 a week, plus $6 per day expense account. Who is paying it- men somewhere else working just like you and paying dues to pay men like Curbo for trying to stir up trouble in our plant. But, as I said, this organizer is not interested in you as an individual. He will organize you, if he is suc- cessful, then go to his boss, get a pat on the back, and be off to organize some other group of men. We are interested in you as individuals. Your job, your future, your personal feelings-they are all important to us. We know that if you are working to the best of your ability, making progress up the ladder, providing the good things in life for your family-then we will have a good place to work and we will all make money. The most sensible answer we can give you now to the question of organizing is "wait and see." A union costs money-in initiation fees, in dues, in special assessments. Why "buy it if you don't need it?" Give us a year to prove that we have a good place for you to work in-that we treat you like men, not animals-that we offer you a better than average wage for this area for the work you perform. After we have been in production a year, you find that we are being unfair to our employees, are running a sweat shop with low pay and poor working conditions for all, then look into the matter of a labor organization. I can think of many other things to say concerning this problem, but we do not have the time here to say them. Nor do I think I need say them. I be- lieve that most of you are intelligent men who can think this matter through. Pathfinder officials had great confidence in you, in the fact that you were good loyal thinking citizens. That is why we located this plant in Kosciusko. So again, we ask you to think, weigh the issues carefully, decide whether or not Pathfinder or CIO has your interests most at heart-and give us a chance to prove that Pathfinder will be the best place you ever worked. Appendix B Many of you were present at a meeting of all Pathfinder workers which was held on June 28. That meeting was called so that you might be told that a paid organizer of the United Auto Workers, CIO, had moved to Kosciusko and was contacting Pathfinder workers for the purpose of organizing this plant. At that meeting, Mr. Y. R. Schively, our General Manager, read a talk to you which outlined the company's position on the subject of union organizing. He read that speech because of the necessity of being able to prove-should the oc- casion ever arise-exactly what he said to you. For the same reason, I am reading this one. Now, exactly as we predicted on that date, Mr. Homer Curbo, the CIO or- ganizer, has visited you, or many of you, in your homes during the past two months, giving you various items of information and misinformation. I say misinformation because I am going to point out to you in a few minutes at least one lie that he has told several Pathfinder workers. I have no doubts that he PATHFINDER COACH DIVISION OF SUPERIOR COACH CORPORATION 99 has told you many. But first, let me say that the reason that we called you together today is threefold: (1) Two months ago, when we had a meeting for the purpose of setting you straight as to how we felt about the matter of union organizing, there were less than 200 people on the Pathfinder Payroll. Today there are over 400 . . . we want the newcomers to hear our side of the story. (2) The CIO organizer, this Mr. Curbo we mentioned, has recently called on you to attend a WELCOME TO CIO meeting which he held at his house and which some of you attended. Therefore, he has reopened the matter of organizing a union and appears to be prepared to stuff it down your throats whether you want it or not. (3) We want to tell you newer people who have started to work here since that earlier meeting, and repeat to you who were here before, what we intend to do for you in the way of making this a good place to work. Now, let's go in to that matter first. If you have a concrete front yard, why hire a man to mow the lawn? He is going to cost you money, make a lot of noise, and leave you when the job is done with not one thing more than you had, before he came. You'll still have your nice concrete front yard . . . maybe not quite as nice as before because there will be a few chips in the concrete and a few skid marks . . . and you will have a little flatter pocketbook Take a look and see, now . . . here's your concrete front yard. To be announced before long . . . we're not going to tell you when because we want to spring a little surprise on you . . . is our Group Accident and Health Insurance Plan This plan, pat- terned after the one in force in the Superior Coach plant at Lima, Ohio, will provide oil-the-job sickness and injury protection for you and for members of your family. In good time, as we have told you before, we will provide a va- cation plan based on length of service. Every industrial vacation plan that we are familiar with has as its first requirement one continuous year of service be- fore a person is eligible for a vacation. So why get all hot and bothered at this time about a vacation we have very few people here who have more than two or three months of service. Also in the books are employee recreational activities of all kinds, financed as you have just been told by proceeds from the various concessions now operating in the plant for your convenience. Next, let's take Wages . . . money . . . dollars and cents. This is a subject near and dear to all of our hearts. Every man and woman here is working for money . . . the well-known wherewithal ! Mr. Curbo's main theme is going to be money, money and more money. He knows that if he talks money, you'll listen. O. K, let's talk money right now. First, our personnel office tells us that over half of you are now making more money, even though about half of you are still on training wages, more money than you have ever made regularly in your life. If this fact is not true, then over half of you have falsified your employment applications, for you have shown that information on your application in the section concerning past earnings. But this is of no importance . . . the important thing to the Pathfinder Coach Division is whether or not you are being properly paid, fairly paid for the work which you are performing While in a few individual cases of underpayment by accident or temporary oversight some of you might not be earning a fair wage, we believe that on the whole we are paying a very good wage scale. And this wage scale is going to get better. We have told you about the incentive system whereby you will be able to increase your earnings as you increase in productive work. For the newcomer, I will repeat that we will operate on some type of piece work or production bonus system just as soon as we can complete the necessary job studies throughout the plant. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And let me say at this point that in our first talk on June 28, we stated that we believed that you would be at the necessary stage of job efficiency for the piecework system to be set up about a year after we started production. That is, we thought it would take about six months for you to get trained to the point where we could make studies . . . then another six months to complete the studies and set up the incentive system. Well, for the benefit of all of you, let me say right now that we are so well pleased with the speed with which you have caught on to the work that we believe that we will be able to begin making our job studies well before that six month period and have the incentive system installed much earlier than the year previously estimated. You are learn- ing your jobs, turning out an extraordinarily good product, far sooner and much quicker than we had anticipated. Let me remind you that you are progressing extremely well . . . your first day's production on August 4 was two completed units. Yesterday you turned out 6 units. That's an increase of 4 per day in a period of three weeks. And it's darned good going, considering the time you've been making buses! But, we're getting off the subject of money, aren't we? As I said, you are getting a fair wage . . . our wage scale is higher than any in this area. Over 4,000 applications for jobs in the plant mean just one thing . . better wages are drawing the people to us. Now, Mr. Cuibo is telling you that if you join his CIO he will get you higher wages. Let me throw the lie in his teeth, and if he comes to see you ask him to answer this. How can he change our wage scale when it is frozen under the Wage Stabilization Board's Wage Regulation #9? I am not going to explain the full text of that law because we do not have the time here. I am simply going to say that our entire wage scale was determined in accordance with Regulation 9 and filed with the Wage Stabili- zation Board. Our scale is frozen until the Board unfreezes it . . . they will do so only by issuing an order abolishing the ruling, or by proof that our wage scale was set up contrary to their Regulation #9. Now listen carefully, for this is the law. Wage Regulation #9 says that rates of wages to be paid in a new plant must not exceed rates for the same or comparable jobs in a comparable industry in the same local labor market area. This means that our rates must be based . . . as they are at present .. . upon the prevailing rates paid by similar industries in this same labor market area. Now, the wage Regulation #9 was not clear on some points, and people wrote letters to the Wage Stabilization Board asking questions concerning these points So the Board issued an interpretation bulletin on March 30, 1951, answering questions and giving the rules necessary to administer the regulation. I want to read you one or two of these questions. (Dwayne picks up the book and reads questions #5 and #7, and explains the answers) So, you can see that even if we asked the WSB to let us pay you the same wage scale as is paid at our Lima plant which operates in a high-priced labor market area and which has been building school buses for over 28 years, they would not let us. Any union contract you might negotiate could not contain the same wage scale as in the Lima plant. The law specifically says so. (Lay the book aside, and says) Those of you who are interested are not only invited but urged to go to the personnel office and read these wage regulations. Inform yourself, ... do not be deceived by half-truths and false promises. Read the law, it is down in black and white! PATHFINDER COACH DIVISION OF SUPERIOR COACH CORPORATION 101 Well, that is about all I have to tell you about Mr. Curbo and his promises. We are interested in you as individuals and we do not want to see you get bilked by any paid union agent , who is interested in keeping his nice fat salary check of $122 a week coming in regularly by collecting dues from you. That is what Mr. Curbo is being paid, my friends, to sell you a bill of goods that you don't need-and couldn't use even if you did need it. He can't do anything about your wages . . . you have insurance and vacations and incentive plans and some day before long we hope pensions . . . all these things are planned for you. You don't need him to get them for you. You'll have them whether or not you have Mr. Curbo's union or anybody else's union. So why pay his dues and initiation fees for something you don't need. If you have that much money to throw away, give it to the Red Cross or to your church or to somebody who needs it .. . Mr. Curbo is making more than I am with his $122 per week salary that working men somewhere are sweating to pay. Just one more thing, and we'll call it a day. There has been some doubt on the part of many of you as to what we mean when we say, as you have heard often in the past few days, that we are shooting for production of 20 jobs a day. Some of you think that you are working as hard and as fast as you possibly can, now , to get out 10 jobs a day . . . and we agree . . . some of you are. However, many of you will increase in the ability to turn out more jobs as you increase in experience-without working a bit harder than you are now. By that I mean that as you learn the "tricks of the trade", how to do the job in the best way-which is always the shortest and easiest right way-you will find that you will not be working a bit harder or faster, but will be producing much more than now. Unfamiliar work is hard work, it gets easier as you go along. Some of you, and you know who you are, are not putting out at your full speed, and can tap that reserve for the added production that will come. We know by experience with our men in our other plant at Lima just how many men to each pool will be necessary to turn out any given number of jobs. We vary our pro- duction by varying the number of men in the pool and by varying the length of time the bus has to stay in one position . Longer time, fewer men-shorter time, more men. Your pool strength will be increased as needed and where needed- but only when needed. Deadheads just can't stay around on a production job. We have had a chance now to see who wants to do his part. We are going to pay you for the job you do. Rate adjustments are being made in all depart- ments at this very time, pools and pool leaders being set up, and we are going to ask you to give a good day's work for the day's pay. That's what you were told when you were hired in, and that is how it is going to be. As I just said, we have had a chance now to see who is going to get the job done. Here is a little unpleasant item-we know now that some of you won't make the grade. Not many, thank heaven, but there are some. We are going to begin weeding out today. Some may get their time today. You will be noti- fied when your work is not up to standard , will be given a chance to improve, or out you will go. We cannot have a very few deadheads slowing up the whole works. That's the unpleasant part of running a business-we all like to hire, but nobody likes to fire. We will not discharge men in a spirit of anger or disgust, but try to explain that in this type of operation all must be a part of the team. If one doesn't fit, or doesn't try to fit, then he doesn't belong. We still have a great number of good men and women who want jobs at Pathfinder , and we will eventually work out the winning combination. So let's all get to work, learn to do our jobs well and quickly. Your future will take care of itself, if you take care of the present. 250983-vol. 102-53-8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Don't buy any of Mr. Curbo's socialistic cure-all medicine-look at CIO's record of strikes, lost time, battles and doublecrosses. Ask your fellow workers here who have belonged to CIO in the past. Give us one year to operate this plant, get all of our plans in effect, and do the many things we have planned which will make this a better place to work in. We make you this offer-give us one year from August 4, the date we rolled those first two buses out the door, and see what kind of jobs you have. Then, if you find out that we are not the right kind of people for you-if you find out that you need to spend money for a union to protect your rights, then go to it with our blessings. But give us that year ! Thank you. J. R. PEPPER AND E. R. FERGUSON , D/B/A BLUFF CITY BROADCASTING CO. and LOCAL No: 1275, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, PETITIONER . Case No. 32-RCi --574. January 9, 1953 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Seymour X. Alsher, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson]. On January 16, 1951, Petitioner's parent organization, International Brotherhood of Electrical Workers, AFL, hereafter referred to as the IBEW, was certified as the bargaining representative of the Em- ployer's engineers and technicians.' Thereafter, on January 23, 1951, a bargaining agreement, in which the Employer, Petitioner, and IBEW were named as parties, was executed, covering all engineers and technicians "up to and including the rank of Chief Engineer." 2 By its terms, this contract was to continue until December 15, 1952, and from year to year thereafter, in the absence of a 60-day notice to change or terminate it. It does not appear from the record whether any such notice was given. On October 31, 1952, the instant petition was filed on behalf of the Petitioner by an international representative of the IBEW. It al- leges as appropriate for bargaining purposes the very unit covered by the existing certification, but it would expressly exclude the chief engineer. At the hearing, during which the Petitioner was repre- sented by the IBEW representative who filed the petition, the parties were in dispute only as to the supervisory status of the chief engineer. 3 Excluded from the unit were the office and clerical employees, announcers , and super- visors as defined in the Act. Case No. 32-RC-286, not reported in printed volumes of Board decisions. 2 The unit replacement of the chief engineer was not litigated in Case No. 32-RC-286. 102 NLRB No. 23.