Deluxe Motor Stages

National Labor Relations Board - Board Decisions

Apr 17, 1951

93 N.L.R.B. 1425 (N.L.R.B. 1951)

DELUXE MOTOR STAGES 1425
FRANK ARQUILLO, AN INDIVIDUAL, D/B/A DELUXE MOTOR STAGES,
PLYMOUTH COACII DIVISION AND AS DELUXE MOTOR STAGES, DETROIT-
CHICAGO DIVISION and LOCAL 1303, AMALGAMATED ASSOCIATION OF
STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF
AMERICA, AFL. Case No. 7-CA-.94. April 17, 1951
Decision and Order
On January 3, 1951, Trial Examiner Robert E. Mullili 'issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 to the Intermediate Report, a supporting brief, and a
request for oral argument. The request for oral argument is denied
as the record and exceptions, in our opinion, adequately present the
issues and the position of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.2 The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent, Frank Arquillo, an Individual d/b/a Deluxe
Motor Stages, Plymouth Coach Division and as Deluxe Motor Stages,
Detroit-Chicago Division, his officers, agents, successors, and assigns,
shall :
1 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, Reynolds,
and Styles].
2 Like the Trial Examiner we find no merit to the Respondent 's motion to dismiss because
the original charge named as respondent only Deluxe Motor Stages , Plymouth Coach Di-
vision , which was Arquillo ' s trade name . This charge was served on an agent of Arquillo
and Arquillo did not deny that the charge was brought to his attention nor did he contend
that he was in any way misled or otherwise prejudiced by the misnomer . In our opinion,
the description of the Respondent in the charge was adequate to put Arquillo on notice
that the charge was directed against hint We find , therefore , like the Examiner , that the
original charge was effective to toll the 6 months' hnnitation period in Section 10 ( b) of the
Act National Works, General Chemical Division . Allied Chemical and Dye Corporation,
91 NLRB No. 181.
93 NLRB No. 251.
943732-51-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Cease and desist from :
(1) Discouraging membership in Local 1303, Amalgamated Asso-
ciation of Street, Electric Railway and Motor Coach Employees of
America, AFL, by discriminatorily discharging any of his employees,,
or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment.
(2) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 1303, Amalgamated Asso-
ciation of Street, Electric Railway and Motor Coach Employees of
America, AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed 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 an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
B. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(1) Offer to Arthur Karnatz immediate and full reinstatement to.
his former or a substantially equivalent position without prejudice to
his seniority or other rights and privileges and make him whole in the
manner set forth in the Intermediate Report, attached hereto, in the
section entitled "The remedy."
(2) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment
records and reports, and all other records necessary to analyze the
amount of back pay and the right of reinstatement under the terms
recommended in this Order.
(3) Post at his terminal in Plymouth, Michigan, copies of the notice
attached to the Intermediate Report marked Appendix A thereof.3
Copies of said notice, to be furnished by the Regional Director of the
Seventh Region, shall, after being duly signed by the Respondent or
his representative, be posted by the Respondent immediately upon
receipt thereof and maintained by him 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.
3 This notice, however, shall be, and it hereby is, amended by striking from line 3 thereof
the words "The Recommendations of A Trial Examiner " and substituting in lieu thereof
the words "A Decision and Order " In the event that this Order is enforced by a decree
of a United States Court of Appeals , there shall be inserted before the words "A Decision
and Order" the words "A Decree of the United States Court of Appeals Enforcing "
DELUXE MOTOR STAGES 1427
(4) 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 therewith.
Intermediate Report and Recommended Order
Mr. Herman Cot enman, for the General Counsel.
Mr. Robert A. Snlhvan, of Detroit, Mich., for the Respondent.
STATEMENT OF THE CASE
Upon charges duly filed by Local 1303 , Amalgamated Association of Street,
Electric Railway and Motor Coach Employees , AFL (herein called AFL), the
General Counsel of the National Labor Relations Board, by the Regional Director
for the Seventh Region ( Detroit, Michigan ), issued his complaint dated Septem-
ber 18 , 1950, against Frank Arquillo, an individual , cl/b/a Deluxe Motor Stages,
Plymouth Coach Division and as Deluxe Motor Stages , Detroit-Chicago Division,'
herein called the Respondent . The complaint alleged that the Respondent by
his discharge of Arthur Karnatz, an employee , on about July 7, 1949, and his,
refusal thereafter to reinstate Karnatz, engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of Section 8 ( a) (3) and
(1) and Section 2 ( 6) and ( 7) of the National Labor Relations Act, as amended,
61 Stat. 136 , herein called the Act. Copies of the complaint , the charges, and
notice of hearing thereon were duly served upon the Respondent . In his answer
the Respondent denied generally that he was subject to the Act or that he had
committed any unfair labor practices?
Pursuant to notice , a hearing was held at Detroit, Michigan , on October 17, 18,
and 19, 1950, before the undersigned Trial Examiner , duly designated by the
Chief Trial Examiner . The General Counsel and the Respondent were repre-
sented by counsel. All parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross -examine witnesses, and to
introduce evidence bearing on the issues . At the outset of the hearing, the
undersigned denied a motion to dismiss made by the Respondent , which in sub-
stance challenged the jurisdiction of the Board . A request for a bill of par-
ticulars , made by the Respondent at the same time, was granted in part and
denied in part. When making this ruling the undersigned advised counsel for
the Respondent that in the event he needed further time to prepare a defense
the Trial Examiner would entertain a motion for a continuance at the conclusion
of the General Counsel 's ease-in-chief . The Respondent , however, made no sub-
sequent request for such a continuance . A motion to exclude the witnesses from
the hearing room, made by the Respondent , was granted . At the conclusion
of the General Counsel ' s case the Respondent moved to dismiss the complaint
on the ground that the Board lacked jurisdiction of the Respondent , that it was
error for the Trial Examiner to permit the General Counsel to interrogate the
Respondent 's general manager under the procedure set forth in Rule 43 (b) of
the Federal Rules of Civil Procedure , that the Respondent was never adequately
apprised of the allegations of fact involved in the case , and that the evidence
offered by the General Counsel was insufficient to sustain the complaint. This
motion was denied. The undersigned likewise denied a motion by the General
i Upon motion by the General Counsel, granted by the undersigned. the caption set forth
In the complaint was amended with the insertion of the words "as Deluxe Motor Stages'
before the word "Detroit
2 The Respondent requested and was granted permission to file his answer during the
course of the hearing
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel that the facts be found as set forth in the complaint, because of the
Respondent's failure to file an answer until after the General Counsel had
rested. Quarles Manufacturing Company, 83 NLRB 697, 707; Consumers
Lumber d Veneer Company, 63 NLRB 17, 18. Before the end of the hearing the
parties argued orally before the undersigned and were advised of their right
to file briefs. Subsequent to the hearing a brief was received from the General
Counsel.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Frank Arquillo, is an individual with his principal office and
place of business in Detroit, Michigan, where he is engaged in the operation of
two bus lines : one, known as Deluxe Motor Stages, Plymouth Coach Division
(herein called Plymouth Division), operates between Detroit and Plymouth,
Michigan, under a certificate of public convenience and necessity issued by the
Michigan Public Service Commission ; the other, known as Deluxe Motor Stages,
Detroit-Chicago Division (herein called Chicago Division), operates between
Detroit, Michigan, and Chicago, Illinois, under a certificate of public convenience
and necessity issued by the Interstate Commerce Commission.
During the year 1949, revenue for the Plymouth Division totaled approxi-
mately $95,000. During the same period, expenditures for gas, oil, equipment,
and repairs, made for it by Deluxe Motor Stages, approximated $1,100 per week.
Eight drivers, 2 mechanics, 1 bookkeeper, 1 night man and 1 general manager,
a total of 13, comprises its personnel.
Although the Plymouth Division operates over a short route it is the only
intrastate bus line which maintains a regular daily schedule through a highly
industrialized area between Plymouth and Detroit. At the time of the com-
mission of the unfair labor practices alleged in the complaint, its route was 16
miles long and extended from the city of Plymouth to a point on Grand River
Avenue in Detroit. After November 1, 1949, this route was extended to the same
terminal of Deluxe Motor Stages in downtown Detroit which is used by the
Chicago Division. Plymouth Division coaches make stops directly at or close
to a number of plants engaged in extensive interstate operations. Included
among these industrial establishments, details as to the out-of-State business of
which were received in evidence at the hearing, are those of the Burroughs Add-
ing Machine Company,' Evans Products Company,' Whitman and Barnes Division
of United Drill and Tool Corporation,' Pilgrim Drawn Steel Division of the
Automotive Materials Corporation,' Daisy Manufacturing Company,' and Dunn
Steel Products Co .8 In addition to the foregoing, other plants on or near the
route of the Plymouth Division include those of the Ford Motor Company, General
3 Purchases in 1949 of $15,800,000, approximately 60 percent from out-of-State and sales
of $88,000,000, approximately 90 percent shipped out-of-State
4 Purchases in 1949 of $5,284,000, 75 percent from out-of-State, and sales of $13,953,000,
approximately 85 percent shipped out-of-State.
5 Purchases in 1949 of $74,500, 95 percent from out-of-State, and sales of $5,300,000,
approximately 88 percent shipped out-of-State.
6 Purchases in 1949 of $1,290,000, approximately 65 percent from out-of-State, and sales
,of $1,050,000 approximately 15 percent shipped out-of-State.
7 Purchases in 1949 of $1,500,000, approximately 30 percent from out-of-State, and sales
,of $3,000,000, approximately 76 percent shipped out-of-State.
8 Purchases in 1949 of $400,000, approximately 80 percent from out-of-State, and sales
.of $1,100,000, approximately 20 percent shipped out-of-State.
DELUXE MOTOR STAGES 1429
Motors, Nash-Kelvinator, and a number of smaller enterprises. The Plymouth
Division also operates as a feeder line to the Detroit Street Railway carrying
passengers to and from transfer points of the municipal transit system which
intersect the bus route. Counsel stipulated that approximately 50 percent of
the 30,000 passengers carried each month by the Plymouth Division are personnel
employed either in Detroit or Plymouth or in the various factories along the bus
route between the two cities. Upon the foregoing facts, the undersigned con-
cludes and finds that the Plymouth Division is engaged in commerce within the
meaning of the Act. TV. C. King d/b/a Local Transit Lines, 91 NLRB 623;
El Paso-Ysleta Bus Company, Inc., 91 NLRB 590; Clelland Bus Lines, Inc., 85
NLRB 306; Gate City Transit Lines, Inc., 81 NLRB 79.
The Chicago Division had approximately $150,000 in gross revenue in 1949,
derived from the operation of busses on a regular schedule between Detroit,
Michigan, and Chicago, Illinois, and from a charter bus service which it operates
throughout the United States and Canada. It is thus plainly engaged in inter-
state commerce. In fact, from the record, it does not appear that the Respond-
ent contends otherwise.
Moreover, it is clear that Arquillo operates the Plymouth and Chicago Divi-
sions as one single, integrated enterprise. The certificate of public convenience
and necessity from the Michigan Public Service Commission under which the
Plymouth Division operates and a similar certificate from the Interstate Com-
merce Commission under which the Chicago Division operates were both issued
to "Frank Arquillo, d/b/a Deluxe Motor Stages." Complete ownership and
control of both divisions of Deluxe Motor Stages lies in and is exercised by
Arquillo from his headquarters at the terminal for the two lines in downtown
Detroit. Arquillo alone signs the checks and until a date shortly before the
hearing payroll taxes were kept in one account and paid from the downtown
office in one lump sum. In part, the charter' operations of the two divisions are
intermingled. Coaches operating on the Plymouth Division are sometimes used
on interstate charter trips under Arquillo's Interstate Commerce Commission
permit. Drivers are also interchanged between both divisions where charter
work is concerned. Finally, employment practices and policy emanate from and-
are controlled by Arquillo alone In view of the above, the undersigned finds
that the Plymouth and Chicago Divisions constitute integral parts of a unitary
enterprise and that they are a single employer engaged in commerce within the-
meaning of the Act. The McMahon Transportation Company, 89 NLRB 1652;
Morgan Packing Company, Inc., 91 NLRB No. 104; Illini Coach Company, 80,
NLRB 273, 274-275; Hill Transportation Company, et al., 75 NLRB 1203, en-
forced without opinion December 7, 1948 (C. A. 1).
II. THE LABOR ORGANIZATION INVOLVED
Local 1303, Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America, AFL, is a labor organization within the meaning
of Section 2 (5) of the Act.
III. RESPONDENT'S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF THE CHARGE
The complaint was issued upon a charge and an amended charge. The original
charge alleged the commission of unfair labor practices by the "Detroit-Chicago
Division of Deluxe Motor Stages : Deluxe Motor Stages, Plymouth Coach Divi-
sion." It was sent by registered mail to Arquillo's bus terminal at 1505 Cass
Avenue, Detroit, Michigan, on August 25, 1949, where it was accepted by Henry
Petrucci, a ticket agent in Arquillo's employ, who signed a postal receipt therefor.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, Arquillo conceded that Petrucci, who was also his nephew, was
authorized to receive the Respondent's mail On July 19 and 20, 1950, an
amended charge, alleging the commission of unfair labor practices by "Frank
Arquillo, doing business as Detroit-Chicago Division of Deluxe Motor Stages and
Deluxe Motor Stages, Plymouth-Coach Division" was duly served by registered
mail on agents of Arquillo at both his Detroit and Plymouth terminals.
At the outset of the hearing, the Respondent moved to dismiss the complaint
on the ground that the original charge as filed and served did not vest the Board
with jurisdiction. In support of this motion the Respondent argued that in
August 1949 no entity known as "Deluxe Motor Stages, Plymouth Coach Divi-
sion" existed under the laws of the State of Michigan and since the charge was
not directed against Frank Arquillo, as such, it was fatally defective. The under-
signed denied the motion to dismiss at the time it was made and when it was
subsequently renewed during the course of the hearing. This ruling is hereby
affirmed.
For many years prior to 1949 Arquillo operated his bus line to Chicago as an
individual d/b/a Deluxe Motor Stages. In July 1948, he bought the franchise
and equipment of the Plymouth Coach Company. From that date until December
23, 1949, Arquillo operated this bus line, as well as the one to Chicago, without
making any change in his assumed name certificate which he had filed under the
Michigan registration statute many years before. On the latter date, he filed two
certificates with the proper Michigan State authorities, one to the effect that he
was then conducting a business in Plymouth, Michigan, under the name of "Deluxe
Motor Stages, Plymouth Coach Division" and the other that he was conducting
a business in Detroit, under the name of "Deluxe Motor Stages, Detroit-Chicago
Division." Subsequent to his purchase of the Plymouth line in July 1948 and
until about August 1950, Arquillo kept the name "Plymouth Coach Company" on
all his busses operating between Plymouth and Detroit in order not to lose any
passenger traffic. However, it is clear that as soon as possible after purchase of
that company he set out to effect the transition from the old name to the new in
the mind of both his own personnel and the public. On August 2, 1948, he issued
to his employees a rule book which stated on its face that it was for "the drivers
of the Plymouth Division Deluxe Motor Stages." A time table, effective May
16, 1949, which appears in the record as an exhibit, is captioned "Deluxe Motor
stages Plymouth Coach Division " And on August 15, 1949, in response to a
letter from the Regional Office concerning a pending representation case, coun-
sel for the Respondent stated that the proper name of the Plymouth line was
"Deluxe Motor Stages, Plymouth Coach Division.",. In the light of the foregoing
facts, there is plainly no merit to the Respondent's motion to dismiss because of
the asserted nonexistence of a business known as "Deluxe Motor Stages Plym-
outh Coach Division" on August 25, 1949, the date on which Arquillo's agent,
Petrucci, accepted service of the original charge Arthur J. Wiltse, d/b/a Ann
Arbor Press, 85 NLRB 58, 59-60; Vulcan Forge Company, 85 NLRB 621, 625-626;
Lee E. Stine, d/b/a Fairchild Cafeteria, 92 NLRB 809; see also N. L. R. B. v.
O'Keefe and Meriatt Mfg. Co., 178 F. 2d 445, 447 (C. A. 9).10
This letter appears in the recoid as General Counsel's Exhibit 8 Although signed
"'Vern B Em.niett, General Mgr ," counsel for the Respondent stated on the record that he
had prepared the text himself.
10 The Respondent also argued that the amended charge was defective in that the unfair
labor practices alleged therein had occurred more than 6 months prior to its filing This
argument is likewise without support since the original charge, alleging all the unfair
labor practices set forth in the amended charge, as well as others, was filed and served
within the time limitation prescribed in Section 10 (b) of the Act
DELUXE MOTOR STAGES
IV. TIRE UNFAIR LABOR PRACTICES
A Inti odicction
1431
After his purchase of the Plymouth Coach Company in July 194S Arquillo
immediately assumed control. All those employed by the previous owner weie
retained but Arquillo hired a new general manager, Vern B Emmett, to exercise
o'. er-all supervision of the line. Under the previous owner the employees had
been represented by the International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, CIO (herein called CIO), which
had negotiated a union shop contract with the employer in May 1947. Among
the terms of this contract was one which provided that in the event of any
change in the ownership of the Plymouth Coach Company the then owner would
make it a condition of the sale that the purchaser be fully bound by the existing
contract with the CIO. Whether Arquillo agreed to such terms when negotiating
the purchase of the bus line does not appear in the record. In any event, the
,employees assumed that their contract did remain in effect and during the early
months after Arquillo and Emmett took over the operation of the line the
employees made this position clear.
The first occasion for their doing so arose early in July when the employees
learned that Arquillo planned to pay them on a twice-monthly basis. Pursuant
to their CIO contract the previous owner had paid them every 10 days. Several
of the bus drivers, including Arthur Karnatz, brought this fact to Emmett's
attention, insisting that their contract was still in effect and that their old
schedule of paydays should be maintained. Emmett, however, told the employees
that because Arquillo's employees in the Chicago Division were being paid on a
biweekly basis no change would be made. When Edward Sinta, then a book-
keeper for the line, told Arquillo that under the union contract with the prior
owner the employees were to be paid three times monthly, Arquillo told him that
"he bought out a company, lie didn't buy out no contract" and that "As far as
he was concerned, he didn't want no union there and he was going to do every-
thing he could to get rid of it." "
A few weeks thereafter Emmett issued a new set of rules for the bus drivers,
one of which foibade smoking by the driver while passengers were aboard his
coach. A clause in the CIO contract, however, provided that the management
would "continue to permit smoking."'' Numerous protests arose from the em-
ployees, because of the apparent conflict between the union agreement and the
new rules. Several, including Karnatz, alleged in their conversations with
Emmett that their new employer was seeking to abrogate another provision of
their contract. The rule was not changed but Emmett testified that he "bent over
backwards to give [the drivers] a little consideration" 13 and that after a time
he permitted smoking for a short distance at the Plymouth end of the route
when there were no passengers aboard. However, he also testified that during
the period from July to December 1948, he had occasion to reprove most of his
drivers for infractions of the rule.
Another dispute arose in connection with Arquillo's rate of pay for charter
bus trips and Emmett's method of selecting drivers for them Under the previous
owner the drivers had only infrequent opportunities to make charter trips. Ar-
quillo, however, carried on extensive charter operations and after taking over
the Plymouth Coach Company began to use its equipment and drivers on this
11 This finding is based on the credited , undenied testimony of Sinta. The quotations
are from his testimony
12 The quotation is from, the contract
11 The quotation is from Emmett's testimony.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
type of work, in addition to the maintenance of the regular intercity schedule.
When Emmett announced that the drivers would be paid a flat rate of $8 25 per
clay on what was known as "short runs" 14 the drivers objected to him that they
were entitled to an hourly rate A further objection was voiced when Emmett
made no effort to post announcements of pending charter trips or to follow
seniority in selecting the drivers needed. As a result, the shop committee for
the union protested to Emmett about these practices and in September 1948 he
agreed to post subsequent charter opportunities and to assign drivers on a senior-
ity basis.
Sometime in the fall of that year the union committee sought a wage raise
for the Plymouth Division employees. This demand, coupled with the union's
insistence that Plymouth comply with all provisions of the CIO contract, es-
pecially the overtime and chartered runs provisions, finally reached the Mich-
igan State Mediation Service. In November, a committee appointed by the Gover-
nor of Michigan held a hearing on the matter. At that time the CIO, in addition
to pressing its demand for a wage raise, alleged that Arquillo was violating
some of the contract provisions and bypassing past practices instituted under
the old management. On November 19. the mediation committee recommended
that Arquillo recognize all provisions of the contract which the CIO and the
former owner had executed; and it further recommended that Arquillo grant
his employees a wage raise. In December, Emmett signed a contract with the
CIO granting all employees a 10-cent an hour raise. Subsequently, the CIO com-
mittee, of which Karnatz was a member, E mmett, and Robert A. Sullivan, counsel
for the Respondent, met several times to negotiate the remaining terms of a new
contract, but insofar as the record indicates no agreement was reached as to
any of the terms discussed'"
Early in May 1949, following protests from the employees that Emmett was
no longer posting notices of pending charter trip opportunities or assigning
drivers to them on a seniority basis, Karnatz, along with Alfred Brewer, the shop
steward, and Roy Moore, president of the CIO local, demanded and obtained
a conference with Emmett. At this meeting Emmett agreed that thereafter he
would post charter trip announcements but when Karnatz asked that this agree-
ment be reduced to writing Emmett refused to do so. Later in May, Karnatz
and other union representatives met with Emmett and Sullivan to demand that
Arquillo adhere to a clause in the CIO agreement providing for paid vacations.
The Respondent's representatives refused to do so, pleading financial inability to
bear the cost, and the meeting ended abruptly after a sharp verbal exchange
between Karnatz and Sullivan.
In the spring of 1949 the employees of the Plymouth Division became dis-
satisfied with what they considered to be ineffectual support from the CIO. The
shop committee therefore solicited the help of the AFL and when this was forth-
coming the committee endeavored to enroll the employees in that union. The
first organizational meeting, held at Karnatz' home on the evening of May 17,
was attended by all the employees of the Plymouth Division, with the excep-
tion of two drivers then on duty. All those in attendance signed cards in the
AFL and paid their initiation fees that night. On June 9, its organizational
campaign having been carried into the ranks of the Chicago Division as well,
the AFL notified Arquillo by letter that it had organized a majority of his
employees and requested recognition as well as a meeting to discuss the matter.
No reply to this letter was ever received. On the same day the AFL filed with
14 These were charter trips which might last for as little as 4 or as much as 16 hours
15 At some time in December, however, the Respondent put into effect the checkoff pro-
vision of the CIO contract. -
DELUXE MOTOR STAGES 1433
the Board a representation petition looking toward certification as the bargaining
agent for Arquillo's employees.
Early on the morning of July 8, 1949, as he reported for work, Karnatz found
a letter from Emmett on the bulletin board in which the general manager in-
formed him that he was being terminated as of July 7, for "laxity in performing
regular duties, disobedience and [a] discourteous sai castle attitude toward the
passengers." Karnatz (lid not leave immediately but waited for Emmett's ar-
rival to obtain an explanation for the discharge However, after some time had
elapsed anc$ Emmett had not appeared, Karnatz left the terminal.
B. The discharge of Karnatz
The General Counsel contends that Karnatz was discharged by the Respondent
because of his participation in concerted activities and his membership in the
AFL The Respondent, on the other hand, earnestly contends that Karnatz was
dismissed for justifiable cause and only after a series of incidents had trans-
pired which rendered intolerable his continued employment 36
At the time of his discharge Karnatz had been employed as a bus driver by
the Plymouth Division and its predecessors for almost 6 years. Only two drivers
had more seniority with the line than he and Karnatz credibly testified that at
no time during the course of his employment under Emmett had the latter repri-
manded him for any of the conduct which allegedly served as the basis of his
discharge." Karnatz' assertion that he was never reprimanded prior to his dis-
missal is supported by the credited, undenied, testimony of Alfred Brewer, union
steward for the Plymouth Division. As noted above, Karnatz did not see Emmett
on the day he received notice of his discharge. Later that day, however, Brewer
sought out Emmett to ascertain the reasons for Karnatz' dismissal. After Em-
mett told him it was for "failing to change a large denomination bill and [not]
leaving people off at designated stops," Brewer asked whether Emmett had ever
reprimanded him. Emmett gave only a noncommittal response to this question
and ended the conversation with the statement that "a man of his age who has
been in business for himself knows right from wrong."
Prior to July 1948, Karnatz had been a member of the CIO shop committee
and after Arquillo assumed control of the Plymouth Division, Karnatz quickly
distinguished himself in the eyes of the new management by the aggressive
manner in which he insisted that Arquillo recognize the existing CIO contract.
Although Arquillo finally yielded to the demands of his employees for a wage
increase, pursuant to the recommendation of the Michigan Mediation Service,
it appears that he never gave full acceptance to the contract which the CIO
had negotiated with the former owner. His failure to grant his employees
any vacation pay as provided for in the contract and Emmett's disposition
to ignore its seniority provisions in the assignment of charter trips were a
source of continuing irritation to the drivers and in May and June 1949 Karnatz
vigorously presented their views on these matters to the management. When
10 At the hearing the Respondent offered to prove that in proceedings before the Michi-
gan State Unemployment Commission that body, in passing upon Karnatz ' claim for un-
employment benefits, found that he had been discharged for cause . An objection to this
testimony by the General Counsel was sustained by the Trial Examiner . "The decisions
of [a state agency] are not binding upon the Board, which has paramount initial juris-
diction over the subject matter herein " Horn Manufacturing Company, 83 NLRB 1177,
footnote 4, Union. Screw Products, 78 NLRB 1107-1108, 1125, footnote 18; see also
N L. R B v Hearst Publications, Inc, 322 U. S 111, 123, and Myers et al v. Bethlehem
Shipbuilding Corp Ltd, 303 U. S 41.
17 Karnatz , by his demeanor on the stand , impressed the undersigned as a frank and
truthful witness
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee dissatisfaction with the CIO resulted in a shift to the AFL, Karnatz
was likewise a leader in the transition and it was at his home that the first
AFL organizational meeting was held on May 17.
It is plain from the record that the Respondent was acquainted with Karnatz'
union activities and affiliations. Shortly after Deluxe Motor Stages began
operation of the Plymouth Division both Arquillo and Emmett questioned
their bookkeeper, Edward Smta, to determine the union leadership among the
employees. Sinta gave them the names of Karnatz, Arthur Calhoun, and twa
others. At the time, Arquillo advised Emmett that he had "better get rid
of those guys " 18 Subsequently, in Karnatz' active representation of the em-
ployees as a member of the union's shop committee, it was to Emmett, as the
general manager, that Karnatz and the committee presented their requests
and grievances. Emmett conceded that lie was aware of Karnatz' identification
with the CIO but he denied any knowledge of Karnatz' affiliation with the
AFL. It appears, however, that Emmett was apprised of the employee shift
of allegiance to the AFL and that he was aware of Karnatz' prominence in the
movement. Emmett testified that he knew the AFL was seeking to organize
the employees although not until he was "notified by the boys that they were
going to petition for an election." Y9 Further, he testified that during this period
several of the drivers asked him what he thought of the AFL. It is clear that
the movement met with his strong disapproval and that he sought to discover
through interrogation of the employees how far the trend had progressed.
During the period he questioned Ray Goodman, one of the drivers who was
most active in the AFL campaign, to find out whether Goodman had joined
the AFL When Goodman replied in the affirmative, Emmett stated, "If the
union does come in and there is any trouble, we'll just lock the doors; there
wont's be any Plymouth Coach ; that will be the end of it that day.'0 In the light
of the foregoing, Emmett's denial that he knew of Karnatz' role in the transi-
tion to the AFL is unconvincing It is made even more so because Emmett's
knowledge of Karnatz' union activities is reasonably inferable from the fact
that at the time the Plymouth Division had only a small gioup of employees,
with all of whom the general manager was in close daily contact. N. L. R. B. v.
Abbott Worsted Mills, 127 F. 2d 438, 440 (C A 1) ; Quest-Sh.on Mark Bgasseere
Company, 80 NLRB 1149, 1150, enforced November 9, 1950, 185 F. 2d 285 (C. A. 2).
For some time prior to Karnatz' discharge, General Manager Emmett main-
tained a notebook record " of employee irregularities. From this, in support
of his assertion that Karnatz was discharged for cause, Emmett testified that:
(1) On March 25, 1949, a passenger complained to him that Karnatz had been
rude to her and had refused to make change on a $10 bill; (2) on May 18, Karnatz
complained to bus passengers that a new time table which had just become effec-
tive was difficult to maintain; (3) on May 31, Emmett observed Karnatz arrive
4 minutes ahead of schedule at one bus stop and 3 minutes ahead of schedule at
another; (4) on June 23, a passenger complained that Karnatz refused to let
her off his coach at Ohio Street and that later three people told Emmett they had
quit riding Plymouth coaches because Karnatz would not let them off at Ohio
Street; (5) on June 28, Emmett received a complaint that Karnatz had failed
to let a colored passenger off at her stop; and (6) on July 7, Emmett observed
"This finding is based on the credited ,testimonv of Sinta The quotation is from his
testimony Emmett's denial that he interrogated Sinta regarding the union affiliations of
the employees was not convincing Arquillo did not testify with respect to this incident.
19 The quotation is from Emmett's testimony.
20 This finding is based on Goodman's credited, undenied testimony.
11 Referred to thioughout the hearing as Emmett's "black book "
DELUXE MOTOR STAGES 1435
Karnatz smoking while he had passengers aboard his bus. The testimony offered
with respect to these incidents will now be considered.
March 25: According to Emmett, on this day a Mrs. Kisibeth telephoned him to
complain that Karnatz had been rude to her, refused to make change on a $10
bill, and told her she would have to leave his bus. Emmett had an extensive
entry in his notebook on the matter, including the statement that he "warned"
Karnatz about his conduct on this occasion At the hearing, however, Emmett
did not claim to have reprimanded Karnatz but asserted only that he had spoken
to Karnatz about having received a complaint. On the other hand, Karnatz
credibly testified that Emmett never mentioned such an incident to him.
May 18: On May 16, Emmett put into effect a new timetable which shortened
the schedule between Plymouth and Detroit from 1 hour to 45 minutes. On May
18, Emmett wrote in his notebook that "Karnatz claimed to passengers that sched-
ule was too fast, that he could not stop everywhere Karnatz told about this
again " Emmett testified that on this occasion he spoke to Karnatz because the
passengers were complaining to the other drivers that Karnatz was telling them
that it was impossible to maintain the new schedule. It clearly appears from
the record, however, that all of the drivers were having difficulty adhering to
the new schedule, especially during the early morning rush hours. Karnatz
credibly testified that, as a union committee member and on behalf of all the
drivers, he met with Emmett both before and after the new timetable went into
effect to protest that it would be difficult for the drivers to adhere to it. Accord-
ing to Karnatz, at these meetings Emmett. while refusing to change the new
schedule, assured Karnatz that it would work out satisfactorily after the drivers
grew accustomed to it
May 31: Emmett testified that on this particular morning he went to the Detroit
end of the line and parked about a block from the bus stop to check on whether
the drivers were complying with the new timetable. While there he observed
that Karnatz arrived at the terminus 4 minutes ahead of schedule and left 1
minute late. Sometime thereafter that morning and at the other end of the line
he noted Karnatz arriving at a stop 3 minutes ahead of schedule. Although
Emmett insisted that he had not made these observations for the sole purpose
of building a record on Karnatz and that he had checked on two other drivers:
that same morning, he could not recall with certainty who those drivers were,
Emmett did not assert that he had talked with Karnatz about this incident and
the latter credibly testified that Emmett never had.
June 23: Emmett testified that on this day he received a phone call from a
-woman who claimed to have been a passenger on Karnatz' bus that day and who
alleged that he had refused to let her off at Ohio Street near the Detroit terminus
of the line. On either that day or the following morning Emmett went to this
point on the route and there, by chance, met three people who told him they had
quit riding Plymouth Division busses because Karnatz refused to let them off
at Ohio Street.22 Emmett testified that shortly thereafter lie mentioned to Kar-
natz that he was not letting off passengers at this intersection, but that Karnatz
did not give him "much of an answer " 23 Karnatz, on the other hand, credibly
testified that Emmett never discussed the matter with him.
n Emmett testified that he had merely talked with these three people at the time and
that he was relying on their statement that Karnatz had refused to stop at Ohio Street
for them Prior to the hearing before the undersigned, however, Emmett had given a
contradictory account of this incident. This was at a hearing before the Michigan Unem-
ployment Compensation Commission to which Karnatz appealed in October 1949 There,
Emmett testified , under oath , that on the morning in question lie had personally observed
Karnatz refuse to let these three people off his bus at their desired stop.
23 The quotation is from Emmett ' s testimony.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 28: Emmett had a statement in his notebook under this date to the effect
that "again Driver Karnatz displayed his unwillingness to cooperate with the
passengers." This was followed by an entry describing in some detail an
occasion on that date when Karnatz allegedly carried a passenger some distance
beyond the point where she wanted to alight. Emmett testified that he first
heard about the matter on receiving a written complaint from a Air Stacey, and
that later he learned the details of the occurrence in a conversation with Stacey.
According to Emmett, he spoke to Karnatz about the matter the next day but
the latter could not recall having any such passenger the day before, although he
could recall an incident 2 weeks previously when he had carried a colored pas-
senger several blocks past her stop. Karnatz credibly testified, however, that
about this time in a brief conversation with Emmett, the latter asked him if he
recalled forgetting to leave a colored lady off his coach, and that when he told
Emmett he could not recall such an occasion nothing more was said.
July 7: Emmett testified that at about 11 a. in. on this date he observed Karnatz
smoking while on duty, thus violating a strict company rule, and that as a result,
later that day, he resolved to discharge him. He then prepared the letter,
quoted above, which Karnatz found on the bulletin board the following morning.
Since Karnatz was never reprimanded for any of the alleged deficiencies which
Emmett purportedly observed over a period of several months, Emmett's compila-
tion of incidents assigned as the reason for the dismissal is far from convincing.
It is true that several of the alleged irregularities, if supported, would have been'
ground for reprimanding Karnatz. For instance, smoking by the driver while
passengers are aboard is forbidden by the company as well as by the rules
of the Michigan Public Service Commission. On the other hand, it is clear from
the record that many, if not all, of the drivers violated the rule at one time
or another and that although several had been reprimanded for doing so, no one
had ever been discharged. Likewise, if Karnatz had deliberately refused to
let off passengers at a scheduled stop a severe reprimand might have been
anticipated. This could not be the case with respect to the Ohio Street incident,
however, for the Respondent had never designated that intersection as one at
which all drivers were required to stop. Emmett conceded that it was not
necessary to stop there "automatically." ^ The drivers often discharged pas-
sengers at Ohio Street but since it was less than a block from the end of the line,
several Plymouth Division employees testified that it was sometimes more con-
venient for the greater number of passengers aboard a crowded coach to stop
only at the end of the route. From the testimony of other drivers as well as
that of Karnatz it appears that the decision as to where to discharge passengers
at such points was left up to the discretion and good judgment of the driver,
who was expected to satisfy the passengers, if possible, and at the same time
comply with all traffic and safety regulations. It is clear from the record that
Karnatz' practice in connection with stopping at this particular intersection was
in keeping with the practice of the other drivers and that he had never been
told to do otherwise. The same is true with respect to the allegation that
Karnatz had carried a passenger by her stop, for Emmett gave no convincing
testimony that Karnatz had ever done this deliberately. He might have done
so inadvertently, but from the record it plainly appears that this would riot
have been out of the ordinary. Emmett himself conceded that this happened
"now and again" 26 and that no one had ever been fired for it. As to Karnatz'
alleged rudeness to Mrs. Kisibeth on March 25, it appears that although Emmett
23 The quoted word is from Emmett's testimony.
26 The quotation is from. Emmett's testimony
DELUXE MOTOR STAGES 1437
never spoke to Karnatz about the matter , late in March , Edward Sinta, the
bookkeeper for the terminal office, casually mentioned to Karnatz that a pas-
senger had complained to the office that he had ordered her off his coach. At
the time, Karnatz denied doing anything of the sort , but he did recall that
during a period on the preceding day when he did not have an appropriate
amount of change, a woman had proffered a $10 bill in payment of her fare
on boarding his bus . Karnatz credibly testified that he did not ask her to
leave the bus. Instead , lie permitted her to remain aboard and ride free. In
doing so, he was following a common practice of the drivers , a practice which,
from Emmett ' s testimony , the Respondent approved . If Emmett had been
earnestly concerned about the incident it is inconceivable to the undersigned
that he would have passed the matter by without bringing the complaint to
Karnatz ' attention and demanding an explanation . The same conclusion applies
with respect to Emmett ' s assertion that on May 31, he had observed Karnatz
3 to 4 minutes ahead of schedule . Here also , in the view of the undersigned, if
Emmett had been honestly disturbed about the matter he would have asked
Karnatz to account for his conduct immediately instead of never mentioning
the matter to him. Finally , to the undersigned , Emmett 's testimony that Karnatz
had a "discourteous sarcastic attitude toward the passengers ," as alleged in
his letter of dismissal , is unpersuasive , not only because of the manner in
which it was given at the hearing but for the further reason that throughout
the period when Emmett was compiling his record of complaints about Karnatz
the latter was never reprimanded or given an opportunity to meet any such
allegations of misconduct.
The good faith of Emmett 's record-keeping on Karnttz ' alleged misconduct
was further impugned by the testimony of Edward Sinta. According to Sinta,
on several occasions during the summer of 1949 while he was at work in the
terminal office, Arquillo and Emmett discussed , in his presence , the union activi-
ties of certain employees then active in the AFL campaign . In one of these
conversations , Arquillo told Emmett to get rid of Goodman because he was
soliciting union members at Arquillo's garage in Detroit, whereupon Emmett
assured Arquillo that he had "quite a little bit on Goodman " but that it would
be necessary to have more to justify his discharge . On another occasion, in May,
Arquillo , after observing Arthur Calhoun in conversation with the other em-
ployees, asked Emmett, `How has he been behaving himself as far as union ac-
tivity'? " Emmett replied that Calhoun 's conduct in this respect was not "too
bad" but at the same time he added, with a reference to his black book, that he
had a lot against Calhoun . On still another occasion , from 4 to 6 weeks before
Karnatz ' discharge , Emmett mentioned to Arquillo that he had some complaints
on Karnatz , one being to the effect that he had refused to make change for a
passenger . Arquillo then demanded why he had not been fired and Emmett re-
plied that "You can't get rid of a man for something like that ; you have got to
have something more definite on him." After showing Arquillo his black note-
book , however, Emmett added, "I'm getting it, just take a little more time, I'm
getting it on him. " Later, at about the time that Emmett testified a passenger
had telephoned to complain that Karnatz refused to let her off at Ohio Street,
Sinta was present during another conversation between Emmett and Arquillo.
Emmett stated at the time , "Well, I think that is as good a thing as anything
to let him go." In fact, however , Karnatz was not discharged until almost 2
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weeks thereafter. In the meantime, Emmett trained some extra bus drivers. e
Emmett's abrupt dismissal of Karnatz, without warning or reprimand, con-
trasts sharply with the method in which lie effected other discharges during the
first 8 months of 1949. In March, Emmett discharged a driver named Robert-
son, but the dismissal was neither abrupt nor unexpected. On numerous oc-
casions during the preceding 6 months Emmett had reprimanded Robertson and
once had laid him off for 5 days for offenses that included frequenting a tavern
while on duty, leaving his bus unattended, not wearing a regulation uniform,
mishandling of fares, leaving his bus motor running at a dangerous speed, and
failing to follow the prescribed bus route. In August 1949, Emmett dismissed a
driver named Wells for numerous irregularities including the failure to report
for work but here again the employee was discharged only after he had been
reprimanded and laid off for 3 days.
C. Conclusions
In view of Karnatz' experience as a bus driver, Emmett's failure to reprimand
him for any of the alleged irregularities which Emmett carefully noted, the
insubstantial character of several of the alleged acts of misconduct, even if
Emmett's testimony is credited, and the fact that no employee had ever before
been discharged for any of them, the undersigned does not believe that Karnatz
was dismissed for the reasons assigned. When consideration is given to Karnatz'
prominence in concerted activities, his leadership in the AFL campaign of which
the Respondent was aware, and the fact that it was not until the day after the
organizational meeting at Karnatz' home that Emmett began to note that
Karnatz' attitude and work were intolerable, the undersigned is convinced that,
absent his union activities, Karnatz would not have been discharged without
reprimand or warning when on July 7, Emmett allegedly saw him smoking while
on duty. Further, when consideration is given to Emmett's threat to Goodman
that if any trouble accompanied the advent of the AFL he would "lock the doors ;
there won't be any Plymouth Coach," and the interrogation of employees as to
their union interests and those of other employees conducted by both Arquillo
and Emmett, as well as the antiunion attitude of the owner and the general
manager of the Plymouth Division, the undersigned is convinced and finds that
Karnatz was dismissed for his participation in concerted activities and for his
active leadership in the AFL campaign. In so doing the Respondent discrimi-
nated with regard to Karnatz' hire and tenure of employment in order to dis-
courage membership in a labor organization and thereby interfered with, re-
strained, and coerced the Plymouth Division employees in the exercise of the
rights guaranteed by Section 7 of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section IV, above, occurring in
connection with the operations of the Respondent, set forth in Section I, above,
26 The quotations in this paragraph are from Sinta's testimony. Sinta had been the
manager of the Plymouth Coach Company when it was operated by Arquillo's predecessor.
When Emmett took over the management he kept Sinta as a bookkeeper in his office.
Sinta's credibility was heavily assailed by counsel for the Respondent who asserted that
by his testimony Sinta was seeking to avenge his displacement from the manager's position.
In weighing the credibility of Sinta's testimony the undersigned has considered this
possibility but is satisfied that it is without foundation, for Sinta, while on the stand,
impressed the undersigned as being completely honest and forthright Emmett denied
generally Sinta's version of his conversations with Arquillo, but his denial was not per-
suasive. Arquillo was not questioned as to this aspect of the case.
DELUXE MOTOR STAGES 1439
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire
and tenure of employment of Arthur Karnatz, it will be recommended that
the Respondent offer him immediate and full reinstatement to his former or
substantially equivalent position 27 and make him whole for any loss of pay he
may have suffered by reason of the Respondent's discrimination against him
by payment to him of a sum of money equal to that which he normally would
have earned as wages from the date of his discharge to the date of the Respond-
ent's offer of reinstatement, less his net earnings during said period .2' Loss
of pay shall be computed on the basis of each separate calendar quarter or
portion thereof during the period from the Respondent's discriminatory action
to the date of a proper offer of reinstatement. The quarterly periods, herein
called quarters, shall begin with the first day of January, April, July, and
October Loss of pay shall be determined by deducting from a sum equal to
that which each employee would normally have earned for each such quarter or
portion thereof, his net earnings, if any, in any other employment during that
period. Earnings in one particular quarter shall have no effect upon the
back-pay liability for any other quarter29 It will also be recommended that the
Respondent, upon reasonable request, make available to the Board and its agents
all payroll and other records pertinent to an analysis of the amount due as
back pay.
Since a discriminatory discharge "goes to the very heart of the Act" (N. L.
B. B. v. Entwistle Mfg Co., 120 F. 2d 532, 536 (C. A. 4) ), the undersigned will
recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon the rights of employees as guaranteed by Section 7 of
the Act. See May Department Stores v. N. L R. B., 326 U. S. 376, 386-392.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1 Local 1303, Amalgamated Association of Street, Electric Railway and
Motor Coach Employees of America, AFL, is a labor organization admitting
to membership employees of the Respondent.
2 By discriminating in regard to the hire and tenure of employment of Arthur
Karnatz, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
27 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
,65 NLRB 827.
28 Crossett Lumber Company, 8 NLRB 440.
29 P. W. Woolworth Company, 90 NLRB 289.