Oklahoma Furniture Manufacturing Co.

OKLAHOMA FURNITURE MANUFACTURING COMPANY 771 WE WILL make whole the following because of the discrimination against them: Winn Burgin Marion McReynolds Russell Fugatt WE WILL recognize and bargain with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America , Local No. 878 , AFL, in behalf of all beer driver-salesmen , relief drivers , and warehousemen. MIKE AND JOE CALDARERA, PARTNERS, d/b/a FALSTAFF DISTRIBUTING COMPANY, Employer. Dated ...... . (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. OKLAHOMA FURNITURE MANUFACTURING COMPANY and RAY WIGGINTON, DON HUGHES, LEROY SNEED, W. W. BARKER, JR., and WM. A. McGLONE and GENERAL DRIVERS, CHAUFFEURS AND HELPERS, LOCAL 886, AFL. Cases Nos. 16-CA-470, 16-CA-471, 16-CA-473, 16- CA-474, 16-CA-477, and 16-CA-489. May 5, 1953 DECISION AND ORDER On February 5, 1953, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled consolidated pro- ceedings , a copy of which is attached hereto, finding that the Re- spondent had not engaged in any unfair labor practices and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. The Boards has reviewed the rulings made by the Trial Ex- aminer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the General Counsel's ex- ceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifica- tions: 1. We agree with the Trial Examiner that the Respondent did not violate Section 8 (a) (1) and (3) of the Act by discharging em- ployees Ray Wigginton, Don Hughes, Leroy Sneed, and W. W. Barker, Jr. We have carefully considered the evidence in these cases, particularly the failure of the Respondent to discharge the above- named employees until more than 6 months after their dishonest conduct and the coincidence in time of a 6-day interval between 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Houston, Murdock, and Styles]. 104 NLRB No. 89. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent's rejection of the Union's request for recognition and the Respondent's letter of discharge to these employees. While the evidence adduced by the General Counsel raises, in our opinion, doubt and suspicion as to the motivation of the Respond- ent, twe cannot find on a preponderance of the evidence that these employees were discharged because of their union activities rather than for cause.3 2. We have further considered the evidence in the record re- lating to the alleged independent violations of Section 8 (a) (1). Witnesses for the General Counsel testified that agents of the Re- spondent interrogated them and made statements to them which, if true, would be clearly violative of the Act. While the Trial Examiner discredited specifically only one of these witnesses,he found that the testimony of the remaining witnesses was, in effect, unworthy of belief. The Board has traditionally held that the Trial Examiner's rulings on credibility are entitled to particular weight and it has therefore refrained from overruling such find- ings except where a clear preponderance of all the relevant evi- dence convinces the Board that the Trial Examiner's resolution was incorrect." The record does not warrant such a conclusion in these cases. Accordingly,we affirm the Trial Examiner's finding that the Respondent has not violated Section 8 (a) (1) of the Act. 3. The General Counsel excepts to the Trial Examiner's find- ing that employee McGlone made no offer to return to work either for himself or on behalf of all the strikers during the strike at Respondent's plant beginning February 1, 1952. As the Trial Examiner found, McGlone originally testified that he had never made application for reinstatement to his job after he joined the strikers. Recalled by the General Counsel, McGlone explained that, while he had never asked that he himself be put back to work, he had requested reinstatement for all the drivers as a group. We do not believe it necessary to find, as did the Trial Examiner, that McGlone's later explanation unmistakably repudiated his earlier testimony as to this topic. Accepting Mc- Glone's modification of his original statement as true, his offer to return to work was, in any event, conditioned upon the rein- statement of the four employees found above to have been prop- erly discharged. It must therefore be viewed as a conditional rather than an unconditional request for reinstatement.$ Ac cord- ingly, we agree with the Trial Examiner's conclusion that Mc- Glone was not unlawfully refused reemployment. 2 We do not adopt the statement of the Trial Examiner on page 782 of the intermediate Report to the effect that in cases of this character an employer 's motive in discharging its employees is immaterial. As the Trial Examiner subsequently explains, citing the Board's Fifteenth Annual Report, an employer may discharge its employees for any reason other than those forbidden by the Act. 3 The Trial Examiner made no finding concerning the General Counsel's allegation in the complaint, as amended at the hearing, that the Respondent unlawfully discharged Alex Sokolsky. As no exception was filed to the Trial Examiner 's failure to make such a finding, we shall not pass upon this issue. 4Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C. A. 3); The Hills Brothers Company, 76 NLRB 622. 5Gazette Publishing Corp., 101 NLRB 1694; Myers Products Corporation, 84 NLRB 32. OKLAHOMA FURNITURE MANUFACTURING COMPANY 773 ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby orders that the complaint herein be, and it hereby is, dismissed. Intermediate Report STATEMENT OF THE CASE Upon separate charges filed with the Regional Director for the Sixteenth Region (Fort Worth, Texas), by each of the above-named individuals and General Drivers, Chauffeurs and Helpers, Local 886, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, i by the Regional Director, pursuant to an order consolidating the six cases, issued a consolidated complaint, dated August 22, 1952, against Oklahoma Furniture Manu- facturing Company, herein called the Respondent or the Company, alleging in substance that the Respondent had unlawfully discharged seven of its employees and had interrogated its employees concerning their union affiliations and threatened and warned them to refrain from assisting, becoming members of, or remaining members of, the Union. By reason of these acts the Respondent engaged in conduct in violation of Section 8 (a) (3) and (1) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges and the complaint and notice of hearing were duly served upon all the parties. The Respondent filed an answer to the complaint denying the commission of the unfair labor practices alleged. Pursuant to notice, a hearing was held in Guthrie, Oklahoma, from October 6 to October 9, 1952, before the undersigned Trial Examiner. All parties were represented at 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 preliminary motions of respective counsel to strike certain portions of the complaint and answer. The undersigned also denied the Respondent's motion to dismiss the complaint for lack of evidence upon the completion of the General Counsel's case, which motion was re- newed at the conclusion of the hearing and was taken under advisement. Since the undersigned must now consider all the evidence, the motion is denied. At the conclusion of the hearing the parties waived oral argument before the undersigned and were advised of their right to file briefs in the case. Thereafter, the General Counsel and counsel for the Respondent sub- mitted briefs which have been fully considered. Upon the entire record in the case, and from his observation of the witnesses , the under- signed makes the following. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The complaint alleges, and the answer admits, that the Company is a Delaware corporation and maintains its principal office and place of business at Guthrie, Oklahoma, where it is en- gaged in the manufacture, sale, and distribution of household furniture and related products. During the 12-month period ending June 1, 1952, the Company purchased raw materials, such as lumber, fabrics, and equipment, valued in excess of $ 750,000, of which more than 50 per- cent was shipped to it from places outside the State of Oklahoma. In the same period the Company sold products valued in excess of $2,000,000, of which more than 50 percent repre- sented shipments to customers located in States other than the State of Oklahoma. The Company admits that it is engaged in commerce as defined in the Act, and the undersigned so finds. II. THE LABOR ORGANIZATION INVOLVED General Drivers, Chauffeurs and Helpers , Local 886, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. i The General Counsel and his representative at the hearing are called the General Counsel, and the National Labor Relations Board is referred to as the Board. 283230 0 - 54 - 50 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Background of the alleged unlawful practices At the hearing the General Counsel adduced testimony pertaining to events which occurred more than 6 months prior to the filing and service of the charges, which evidence was received for background purposes to explain and clarify the events occurring within the 6-month period The so-called background evidence relates to a meeting or dinner party arranged by the Company for its truckdrivers at the Rail Fence Restaurant near Oklahoma City, about May 18, 1951 It is undisputed that R. H. Walker and L M. Poet, vice president and secretary- treasurer, respectively, of the Company, as well as practically all of the drivers, attended this meeting Walker stated that the purpose of the meeting was to discuss various business problems and after dinner he gave a short talk on the operations of the Company In the course of his talk Walker said that it had been rumored that the drivers were interested in organi- zation and he informed them that they were free to join any union He further stated that the Company had had a union in the plant for several years and "had gotten along very well with them." At the conclusion of his talk, Walker inquired if the drivers had anything to say where- upon Luther Bates stated that in view of increased expenses and living costs the Company should grant an increase in their pay. Walker agreed with Bates but pointed out that any in- crease might be subject to governmental approval However, he told the drivers he would look into the matter and see what could be done Walker made no reference to the amount of any such increase, although Bates, or one of the drivers, did mention an increase of half a cent per mile. The week following the meeting Walker conferred with his attorney concerning this matter and upon being advised that it was unnecessary to obtain Government approval if the increase did not exceed 10 percent, thereby determined to increase the pay rate from 4} to 5 cents per mile. The increase, according to Poer, became effective for the weekly payroll period ending May 26 Walker further testified that the Company' s agreement with the United Furniture Workers of America, Local No 272, CIO (herein called the Furniture Workers), had expired on May 15, and the parties were then engaged in negotiating a new agreement. Walker advised the Furniture Workers that the Company desired to grant the above increase to the drivers and their representatives stated that it was agreeable to them, so the rate was included in an agreement subsequently executed by the parties. This agreement terminated May 16, 1952. W. W. Barker, Jr., a witness for the General Counsel, testified that there was some talk among the drivers concerning the Union in May. Barker attended the meeting and stated that there was some discussion about increasing the pay rate from 41 to 5 cents per mile. He further stated that Walker told the drivers "if there was a union involved" he would sell all of his trucks. Don Hughes related that Walker informed the group he did not want the Union because the Furniture Workers was in the plant and he did not want the two unions "mixed up together." LeRoy Sneed stated that the question ofwage raises was discussed and that Walker suggested an increase of one-half cent per mile. He also informed the group he could not afford to pay the union scale, that he did not desire any union and rather than take orders from such an organization he would sell his trucks. Barker, who had also worked in the plant, said he had never heard of the Furniture Workers until the drivers became interested in the Union. While Hughes knew the Furniture Workers had an agreement with the Company he did not believe the drivers were included under the same. A V. Streeter, representative of the Union, said that about April 1951, employee Horseman talked to him about organizing the drivers and that he gave Horseman some authorization cards Streeter heard nothing further from the employees until the following December. Bates, testifying on behalf of the Company, stated that he brought up the subject of wage increases and Walker replied that some adjustment should be made. Nathaniel Clark Newman said that one of the drivers pointed out that living expenses on the road had increased and therefore wages should be increased. Walker admitted that living costs had gone up and stated he would see what could bedoneabout increasing the wage rate Walker also stated that he had heard some of the drivers were considering a union and that he had no objection to this action and that it was their privilege to join any union they desired. Doyle Pritchett said Bates spoke of the increased living costs while on the road and that the drivers were entitled to a raise to cover these costs Pritchett stated that the subject was discussed generally, and Walker declared he would give the matter consideration. _ B. Employment conditions of the drivers Walker stated that the Company delivered its furniture in its own trucks and that deliveries were made in about 25 States. At the time in question the Company employed 12 drivers. These OKLAHOMA FURNITURE MANUFACTURING COMPANY 775 drivers , as well as other employees of the Company, were covered by a Primary Commercial Blanket Bond, issued by United States Fidelity and Guaranty Company of Baltimore, Maryland, (herein referred to as USF&G) effective March 29, 1948. the condition thereof being to in- demnify the Company to the extent of $ 100,000 for any loss sustained by it through any fraudu- lent or dishonest act or acts committed by any one or more of its employees. While the bond also covered the employees of four other companies, Walker explained that these companies were, and are, separate and distinct from the Respondent and the only purpose in all of these parties being included in the bond was to obtain a lower premium rate. Walker stated that the bond remained in effect from the above date until approximately March 1, 1952.2 It is clear from the record and from the nature of the Company's method of delivery that the drivers were required to make purchases of gasoline and oil, and perhaps incur mainte- nance expenditures , at various points throughout the States in which the Company operated. It seems reasonably well established through the testimony of Walker that the system used by the drivers in making purchases, insofar as it applied to 4 major oil companies and 1 com- pany in Guthrie, was to sign tickets for the same which were charged to the Company's account. C. Evehts preceding the alleged discriminatory discharges Walker testified that for some time he was suspicious that the drivers were "padding" their tickets, i.e., charging the Company for gasoline or oil that was not put into the truck and receiving cash or goods from the station operator for the excess amount, or purchasing regular gasoline at high-test prices and securing the difference in money or goods from the seller. In addition thereto, the drivers, or at least some of them, accepted and retained cash discounts on purchases of gasoline, which averaged about 2 cents per gallon Accordingly, Walker on June 17, 1951, engaged a private detective, A. B. Cooper, to investigate the matter. Cooper followed some of the trucks and caught several drivers in the act of padding their tickets Walker and Cooper thereupon questioned the drivers in regard to padding their tickets and subsequent investigation disclosed that 11 of the 12 drivers then employed, as well as the truck foreman, had engaged in this practice. In the early part of July, Walker notified USF&G of the practices discovered which might result in losses covered by the bond. The drivers alleged to have been unlawfully discharged, who appeared as witnesses for the General Counsel, uniformly conceded that they had padded (heir tickets or accepted discounts on. purchases, except William McGlone who was not employed by the Company until about the middle of July. Thus, Barker, employed as a driver for 3 years, stated that during June he was called to the office, where he met Cooper who accused him of having padded tickets. Barker admitted he had done so, whereupon Cooper informed him that none of the employees would be fired, that the Company was trying to recover the losses from USF&G and if he would sign his tickets he would still have a job. Cooper then gave him a batch of tickets and told him to sign all tickets showing purchases of 80 gallons of gasoline or more, which he did. Barker said he did not pad each and every one of the tickets he signed but he could not estimate the amount, whether $ 500, $1,000, or $ 5,000, he had obtained through this method, which he had pursued for 5 or 6 months prior thereto. He further admitted that he had taken cash discounts on purchases during the entire time he was driving for the Company. Appar- ently, Barker learned for the first time that he was under bond. About 2 days later Barker went to Walker and explained that he had to have a job since he had a wife and 3 children, and asked if he was to be fired because of his padding activities Walker told Barker he would not be discharged and if he ceased these practices and did right by the Company, he would have a job as long as he wanted to work. Barker continued to work and about October or November he was interviewed by Truman Simpson, adjuster for USF&G, concerning the padding and gave Simpson a signed statement. Simpson informed Barker that the bond terminated as to him as of the time he was caught padding and'that he was no longer covered thereunder. Hughes, employed as a driver since August 1936, stated that during June he was interviewed by Cooper in regard to padding and accepting discounts. Cooper gave Hughes a batch of tickets and told him to check the same and sign the ones that he had padded. Hughes did so and signed about 10 tickets. During the interview Cooper informed Hughes that neither he nor any of the drivers would be discharged and the Company simply wished to recover its losses from the oil companies. Shortly thereafter, Hughes also talked to Walker who stated that no one would be discharged, that the matter was not being reported to USF&G, and that the Company had requested the drivers to sign the tickets in order to recover its losses from the oil companies. About October, Hughes was interviewed by Simpson and in the course of their discussion Simpson inquired if Walker had told him the drivers would be discharged. Hughes 2 The bond contans no termination date but provides that the terms thereof end as of mid- night "on the effective date of the cancellation of this bond in its entirety." 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied that Walked had assured him such action would not be taken and Simpson stated the Company knew better since the drivers involved were automatically excluded from the bond. Hughes said he did not receive very much money through padding and accepting discounts, usually 2 cents per gallon, and admitted that he had engaged in such practices for approxi- mately 1 year . Following the discovery of these acts. Hughes declined discounts offered by station operators because he was not allowed to accept the same . Sneed, employed since May 1948, met with Cooper who told him to go through a batch of tickets and sign those on which he had received a discount . Sneed signed some of the tickets and when Cooper indicated he should sign more he refused to do so . Cooper made no mention as to whether the acceptance of discounts would affect his employment. Sneed was not accused of padding. A few days later Sneed admitted to Walker that he had taken discounts and that he was sorry he had betrayed his confidence and that he would do everything to regain it. Walker told him it was all right and no one would be fired . He also informed Sneed that he wanted the tickets signed in order to collect from the oil companies . Walker, according to Sneed, made no mention of any bond and he did not know at that time that he was covered by a bond . Ray Wigginton, employed since the middle of 1940, was also interviewedby Cooper and at the latter 's request examined a number of tickets , going back to 1948 and 1949, and signed a number of them which he had padded or on which he had received discounts . During the interview, and also on one previous occasion. Cooper told Wigginton that Walker had assured him that he would not be discharged because of the padding or by accepting discounts and that he wanted the tickets signed so that the Company could recover against USF&G. Wigginton said that he padded about 4 tickets and netted between $75 and $100 through the padding method. He also informed Cooper that all the drivers were engaging in the same activities . A few weeks later Walker called Wigginton to his office but he could not remember the discussion other than he requested Wigginton to sign more tickets, which Wigginton refused to do. Sometime later Wigginton went to Simpson's office and signed a statement for him. While he could not recall the discussion with Simpson, he stated that Simpson asked him if the Company had advised him that the drivers were not to be discharged. Wigginton replied that was correct and Simpson said that was a "damn lie." He further inquired if Wigginton knew he was no longer included under the bond and he answered he did not so understand . Simpson then told him he was no longer covered and he did not know how the Company could employ drivers who were not bonded. In substance Walker testified that he and Cooper talked to the drivers and obtained state- ments from six of them concerning the above practices . During these interviews Walker in- formed the men that the Company did not intend to prosecute anyone , although that did not mean USF&G would not prosecute, nor did the Company intend to discharge any drivers at that time. Since none of the drivers could estimate the amount he received from padding or taking discounts, the Company placed checkers on each truck in order to obtain an accurate account of the purchases incurred by the driver on all of his trips . These figures were then compared with expenditures on similar trips covering the preceding 3 years and the result disclosed that the operating cost per gallon mile had increased substantially . The Company computed its padding claim on the basis of the excess as disclosed by comparison of the tickets covering the interval involved with tickets covering the previous period . Walker stated there was no accurate method to check the amounts secured through discounts so the Company averaged the discount at 2 cents per gallon and apparently applied that figure to all gasoline purchases over a period of 3 years, except for purchases made at Peeler Oil Com- pany in Guthrie. Upon completion of its investigation the Company filed its claim with USF&G, in the latter part of September , in the approximate sum of $27,000 . Walker said he con- ferred with officials of Peeler Oil Company , who admitted the company had engaged in padding practices on a large scale, and in August the Company settled its claim against Peeler for about $9,700. This amount, excluding about $2,000 for expenses , was credited to USF&G and deducted from the claim, thereby reducing the same to approximately $20,000 . USF&G con- ducted its own investigation of the loss and as late as December 10, according to Walker, it had not admitted any liability under the bond . However, about December 14, the claim was settled for $15,000. At that time the Company was indebted to 4 major oil firms in the approximate sum of $7,500 for purchases of gasoline and oil, which it had refused to pay because of the padding practices . Accordingly, the Company and USF&G agreed, as part of the settlement, that any sum that they could "salvage" from the oil firms would be divided between them on the basis of 25 percent to the former and 75 percent to the latter . As of the date of this hearing Walker stated they were "still wrangling " with these firms . Attorney Hanson said he had several conferences as well as correspondence with officials of USF&G during the period September to December , and as late as December 7, Harry Palmer, claim superintendent of USF&G, refused to admit any liability under the bond. However, Hanson stated that on December 14 the claim was settled on the terms set forth above, and on De- cember 17, the Company received payment from USF&G. OKLAHOMA FURNITURE MANUFACTURING COMPANY 777 Edgar W. Adams, adjuster for USF&G, stated that in early July he was assigned to investi- gate and decide whether the Company sustained a loss covered by the bond ; if so , the amount thereof and to then attempt to reach some settlement of the matter. Adams admitted the in- vestigation was difficult and protracted and in the course thereof, he or his subordinates interviewed and secured statements from the 11 drivers involved in the loss . About September or October , Adams met with Walker and informed him that the Company had no coverage on the drivers involved , " since first notice of their infidelity." This presented a great problem as the Company had equipment scattered all over the country and Walker was in no position to discharge the drivers ; besides he wanted to keep these men in his employ so that the in- vestigation could be completed . Adams testified he could not recall "the exact date when he admitted liability to Mr. Walker, if we ever did." He further stated that he realized there was "some liability" but the amount could not be ascertained until an audit was completed, which was based on trial runs made on all the trucks during September and October . Adams did not know whether Palmer had ever denied liability under the bond, nor could he recall Palmer having mentioned any conversation in December which he, Palmer, had had with Hanson. The testimony of Adams with respect to the date and terms of the settlement of the claim is sub- stantially the same as that of Walker and Hanson. Adams stated that about that time Hanson talked to him in regard to the so-called " Wilmark theory," i.e., some bonding companies continue to bond employees who have engaged in dishonest acts for the reason that they may make better risks , but that Adams opposed this theory because from his experience it had not worked out satisfactorily. Adams testified to the same effect as Walker, as set forth below, concerning their correspondence on continued bond coverage of the drivers in question. D. The alleged discriminary discharges The complaint , as amended at the hearing, alleges that the Company unlawfully discharged Barker , Sneed , Hughes, and Wigginton about January 26, 1952, and William McGlone and Alex Sokolosky about February 3.3 As already stated the investigation conducted by the Company revealed that 11 of its 12 drivers had engaged in padding tickets or accepting discounts , or both. Walker also said that 6 of the drivers quit their employment , at various times, in the course of the investigation. These drivers were replaced with new men and Walker said it required from 1 to 2 years to train a driver to become efficient in loading and unloading furniture and to become familiar with the location of customers in large cities . The Company was having difficulty with re- placements which affected its shipping operations so Walker was desirous of keeping its ex- perienced drivers . Walker was of the opinion that these drivers had learned their lesson and would made good and honest employees in the future. He further stated that it was his in- tention to continue these drivers in his employ until USF &G had settled the matter, and he deemed it impracticable to raise the question of reinstatement under the bond at a time when USF&G had not even admitted liability for the loss, much less made any offer of settlement of the claim.4 About September Walker discussed the question of having the drivers rein- stated under the bond with Messrs. Blakeney and Neely , both of whom were engaged in the insurance and bonding business in Oklahoma City. Neither of these individuals was associated or connected with USF&G and Walker was simply asking their advice in the matter as dis- tinguished from applying to them for bond coverage . In substance Blakeney told Walker that he knew of cases where bonding companies had reinstated defaulted employees when the latter furnished indemnification agreements to the Company . Neely expressed the opinion that where the employee was under proper supervisory control and indicated an honest course in the future it was normal practice for the bonding company to reinstate him under the bond. Walker deemed it inadvisable to request USF&G to reinstate the drivers until a reasonable period after payment of the claim , so he waited until January 18, 1952, before taking the action set forth below. Shortly after the settlement was effected , Walker said that on December 22 the Company discharged Pritchett , who was involved in padding, when he admitted he recently raised a $ 2 ticket for starting his truck to show a $ 15 towing charge. This left the Company with but 4 experienced drivers . About January 3, Walker went to the furniture market, or show, in Chicago and remained there for about 10 days. The record is clear that the drivers did not display any interest, or perhaps further in- terest, in union organization until sometime in December . Thus, McGlone, who had a with- 3 The undersigned granted the General Counsel 's motion to dismiss the complaint as to Clarence H. Sharp. 4 The bond provides it shall be deemed canceled as to any employee, "Immediately upon discovery by the insured... of any fraudulent or dishonest act on the part of such em- ployee." 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drawal card from another local of the international Union, stated that after his employment in July he unsuccessfully talked to the drivers about union organization . About December McGlone told several drivers he was going to join and thereafter a group did sign authoriza- tion cards, about January 6, which he turned over to Streeter . Streeter said that in December, Horseman, McGlone, and Sokolosky obtained authorization cards which were returned to him on January 7. At that time Streeter was informed that the Company had 10 drivers , 8 of whom had signed cards, so on January 7 he sent a telegram to the Company stating that the Union had been designated as the bargaining agent for the drivers and requested recognition as such for this unit On January 10, the Union filed a representation petition with the Regional Di- rector . About January 15, Walker and Hanson conferred with the Regional Director at Fort Worth concerning the petition and advised him of the Company's agreement with the Furniture Workers . Copies of various agreements with the Furniture Workers were submitted to the Regional Director Thereafter , on January 18, Walker wrote to Streeter and, after explaining the reason for the delay in answering his telegram , stated the Company could not grant recognition to the Union because it had an agreement with the Furniture Workers covering drivers. On the above date Walker also sent a letter to USF&G wherein he requested that Barker, Hughes, Sneed , and Wigginton be reinstated under the bond By letter dated January 23, USF&G confirmed the fact that the 4 individuals were no longer covered by the bond and refused to accede to Walker' s request to have them reinstated -In view of the position taken by USF&G and the fact that the Company had carried a blanket bond covering all its officials and employees for 20 years , Walker prepared and delivered identical letters, dated January 24, to each of the 4 drivers , the context thereof being as follows: All of the employees of the Oklahoma Furniture Manufacturing Company are covered in a corporate surety bond to the extent of $ 100 ,000.00 each You have heretofore admitted the padding of gasoline tickets and the retention of dis- counts on gasoline for your own benefit , by reason of which the company has made a claim against the bonding company By reason of this claim, the bonding company has now advised that they will no longer bond you as an employee of the Oklahoma Furniture Manufacturing Company . We have requested the bonding company to reconsider this but they have refused to make an exception in your case. As we have required a corporate surety upon all of our employees for many years , it will be necessary , if you continue in the employ of the Oklahoma Furniture Manufacturing Company, that you furnish such bond As stated above, while the other employees are covered by bond to the extent of $ 100,000 00 each, in your case the company is willing to retain you in its employ if you can furnish within ten days a corporate surety bond executed by a surety company duly licensed to transact business in Oklahoma in the amount of $25,000 . 00 The company will also reimburse you for the premium paid for such bond upon presentation to the company of a bond and an invoice marked " paid." Effective Saturday , January 26, 1952, your employment with the company is terminated. If within a period of ten days you furnish us with a bond executed as above outlined, you will be reinstated and will be paid for the lost time at your average rate of earnings. Barker stated that upon receiving the letters the drivers talked it over to see what could be done in the matter . McGlone said that as soon as Barker received his letter he called Streeter and advised him the four men had been discharged until they could raise the required bond. Streeter contacted Poer and requested him to put the men back to work or to recognize the Union as the representative of the drivers Poer told Streeter the Company could not recog- nize the Union because it had an agreement with the Furniture Workers Streeter also made similar requests to Walker , which were declined None of the drivers attempted to secure bond although Sokolosky , on behalf of the group , made inquiry of one bonding company which apparently refused to bond these employees . None of the four drivers worked for the company after receiving the above letters. Walker stated he heard nothing whatever from the four drivers until about February 1. E. The strike In the latter part of January , Streeter held a meeting of the drivers and announced that he was leaving it entirely up to them as to whether or not any action should be taken in the mat- ter, whereupon the drivers stated they were in favor of strike action About February 1 the drivers telephoned Streeter and advised him they had established a picket line at the plant. Streeter stated that picketing continued for about 90 days, when it was abandoned, and dur- OKLAHOMA FURNITURE MANUFACTURING COMPANY 779 ing this time he did not contact the Company although Oscar Lair, vice president of the Union, did meet with Hanson on 1 occasion. Walker said that on February 1, the 4 dischargees and 3 other drivers began picketing the plant. Hanson testified that about January 28 Streeter made an appointment with him for the following day Streeter did not appear, but Lair met with Hanson, Walker, and Curtis, a representative of the Furniture Workers. Hanson and Walker advised Lair of the con- tract with the Furniture Workers and that the Company could not "deal" with the Union. Walker said Lair had little to say and the meeting terminated as stated above. Hanson stated Lair called him on January 31, and he again advised him he could not discuss the matter with him Lair then said that the drivers were entitled to present their grievances and Hanson replied he believed this to be correct and agreed to meet with him. Lair said the Union was not going to take any part in the matter, except perhaps for some financial assistance, and the discussion concluded with Lair to make an appointment for some future date. About February 1, McGlone and Sokolosky called at Hanson's office but due to prior appointments he was unable to meet with them at that time. However, he agreed to confer with them on February 6. On this date Hanson, Walker, Curtis, and a court reporter were at Hanson's office but neither McGlone nor Sokolosky put in an appearance Subsequently, about February 12, the same group met at the Company's office in Guthrie. Hanson said that McGlone and Sokolosky stated they were representing the drivers and the parties had a lengthy discussion on grievances. The complaints were directed against the method in which the trucking department operated, particularly Reel, and the fact that the trucks were improperly loaded which required drivers .., spend unnecessary time and trouble in unloading. McGlone stated that he had been receiving the best trips and that these runs should be equalized and all drivers should receive the same treatment . Hanson related that there was no discussion concerning recognition of the Union by the Company and the subject of unions was not mentioned, except that McGlone said if he had known the Furniture Workers was in the plant he would not have accepted employment, and Sokolosky stated he did not care about the Union one way or the other and that he had informed Reel he was a union driver when he was employed. Walker testified substantially the same as Hanson with respect to the discussion of grievances. McGlone testified that on February 1, the 4 dischargees and 3 other drivers, Tommy Risenhoover, Sokolosky, and himself, went on strike. McGlone asserted that he was unaware of any contract between the Company and the Furniture Workers until after the commence- ment of the strike. During the course of the picketing McGlone said that he and Wigginton met Curtis who informed him of the contract *ith the Company. Apparently, McGlone made a cursory examination of the agreement. Subsequently, about 2 or 3 weeks later McGlone called upon Curtis and read the agreement which he admitted purportedly covered the drivers. However, McGlone stated the contract was signed after he was employed by the Company and he knew nothing of its execution. McGlone said that while the strike was in progress he and Sokolosky met with Hanson. Walker, and Curtis at the Company's office Although McGlone's version of the events transpiring at this meeting is not too clear, he did state that there was dissatisfaction among the drivers over the way Reel was handling truck operations, par- ticularly in the improper loading of trucks and the assignment of trips. McGlone also re- lated one instance when Reel assigned him to a "junker" tractor, which he did not take but used the tractor regularly assigned to him on that particular trip McGlone also stated that lie had been favored with long trips until January5 but at the meeting he made no mention of thereafter having been assigned short trips. He further admitted that Curtis offered to take up any grievances they might have McGlone admitted he was never discharged by the Company and, in response to interrogation by the undersigned, stated he never made ap- plication to the Company for reinstatement. He was then excused as a witness. The follow- ing day he was recalled by the General Counsel and testified that just prior to the conclu- sion of the above meeting he and Sokolosky offered to return each of the striking employees to work, upon the same terms existing prior to the strike, without any conditions attached to the offer and that the offer was a continuing one. Walker, according to McGlone, answered, "My hands are tied, I can't do a thing." Sokolosky was not called as witness at the hearing. Walker testified that all of the drivers did not engage in the strike and that within several weeks all of the strikers had been replaced by new employees. 5Poer, testifying from company records, stated that McGlone was paid for the mileage indicated on trips terminating on the following dates: December 3, 529 miles; 10th, 696; 12th, 1,095; 18th, 1,376; 25th, 1,107; 31st, 1,563; January 6, 204; 9th, 1,195; 15th, 522; 17th, 1,126; 23rd, 807; and 27th, 1,422 miles. This evidence was not disputed and is accepted by the undersigned. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The alleged acts of interference , restraint , and coercion The acts of interference relate primarily to the activities of Reel , truck superintendent, whom the Company admits was employed in a supervisory capacity. Barker stated that, in December , Reel asked him if he was going to join the Union and he replied that he was strictly against it . Reel remarked , " If you do, it sure as hell will mess you up." Barker said that after he signed the union card in January , Reel began to drive the boys by sending them out on trips without any rest . About the same time Reel also asked Barker the names of the drivers who were interested in the Union or who had signed cards but he refused to give this information to him . Sometime in March or April , after he had filed his charge against the Company , Barker stated that Reel came to his home in Guthrie about noon and persuaded Barker to get in his car and ride around town. Barker said Reel purchased a pint of whiskey and offered him a drink , which he refused because he was work- ing for his uncle that day. However , Barker yielded and took " a drink of two to satisfy" Reel, for he is the type "you can't do anything with ... and can't take no for an answer." Reel then suggested that they drive to Oklahoma City, a distance of some 20 miles, to see Walker and Hanson and while Barker resisted the invitation , he nevertheless wound up in Oklahoma City . During this trip Reel offered Barker $100 or $150 if he would withdraw his charge, which he refused to do . Upon arriving at their destination , Reel and Barker went to Hanson' s office but wuen they were informed he was out (he later stated Hanson told them to come back) the two of them proceeded to a "beer joint, " where they consumed a bottle or two of beer. While thus engaged Reel increased his previous cash offer to withdraw the charge to $350 , which Barker refused. Barker and Reel then returned to Hanson 's office where they met Hanson and Walker . Barker could not remember the conversation " too distinctly," although they wanted him to withdraw his charge , despite the fact that Walker "didn't ask me" and " never told me to withdraw my charge " Barker said he told.Walker the boys would withdraw their charges if they were returned to work . Walker replied that his hands were tied and he could do nothing at that time The meeting ended and Reel drove Barker back to Guthrie. Hanson said that Barker inquired if he could return to work in the event he withdrew his charge and Hanson informed him the question of withdrawing his charge was up to him but the Company could not promise him any job . Hanson said Barker told them he was having difficulty getting a satisfactory job and Hanson said he would give him a letter to the effect that he voluntarily left the Company and that his services as a truck- driver were satisfactory McGlone testified that at the time he was hired Reel asked him if he was a union member and he replied that he had a withdrawal card from another local of the international Union Reel then told him not to mention it because he would be fired immediately . McGlone further stated that about the middle of January he told Reel, in response to the latter's inquiry, that he was organizing for the Union . About the same time Reel propositioned McGlone that if the drivers would forget about the Union he would make arrangements for them to make deliveries , in large cities , to warehouses rather than to customers, which would save the drivers considerable time in unloading. McGlone declared that after January 7, when the Union sent a telegram to the Company , Reel was not friendly towards him and gave him short hauls , whereas prior to that time he received long, profitable trips. Risenhoover stated that Reel hired him about October 7, 1951, and as he was to start his first trip, Reel said if he was a member of the Union he did not want him. Risenhoover told Reel he had a withdrawal card but nothing further was said and he made his trip. Reel made no furhter mention of the Union until the middle of January when he asked Risenhoover what had happened to the Union and remarked he hoped the Company " did go union" because it would be better for him. Wigginton testified that Reel knew he had signed a union card and told Wigginton it made no difference to him whether or not the drivers joined the Union. Bates said he had a withdrawal card from the Kansas City local of the International Union and so informed the Company when he was employed in the latter part of 1948 . Bates stated that Reel never discussed the Union with him and he never heard Reel mention the Union to any of the drivers. Pritchett stated that he had made trips to Kansas City and had been unable to unload be- cause he was not a member of the local union. Accordingly , in September he discussed the matter with Reel whereupon he and Horseman joined that local. The Company paid the initiation fees and dues to the local for Pritchett and Horseman . Pritchett said he was not interested in the Union at Oklahoma City and that Reel never discussed his joining the Union with him OKLAHOMA FURNITURE MANUFACTURING COMPANY 781 Newman, who replaced Reel as truck foreman in early spring of 1952, said he was never interested in the Union and that Reel never discussed the Union with him , nor any other drivers in his presence J. B. Rice stated that he engaged in padding tickets and quit the Company about July 23 to obtain a job in Odessa, Texas . In November , Rice became a member of the El Paso local of the international Union, but later took out a withdrawal card and returned to Guthrie the following month Rice asked Reel for a job and Reel told him he could work but he could not guarantee him employment for any definite period in view of the fact that Walker and USF&G were still discussing the losses caused by the padding practice . Reel made no mention of the Union and at the time Rice talked to Reel he wore a union button or insignia on his cap. Rice worked for about 1 month when he was "picked up" by the police for driving while intoxicated and as a result quit his employment. Sneed said that during January , Dick McLaughlin , whom he referred to as shipping clerk and apparently in charge of that department , asked him if most of the drivers had "gone union." Sneed stated they had and inquired if that would affect him . McLaughlin answered yes, that if it were not for additional income from the Company he would have to look for another job Sneed understood this to mean that McLaughlin received a bonus or a percentage of the amount of furniture that passed through his department. Reel did not testify at the hearing. The Representation Petitions The record herein discloses the filing and action taken on the following petitions On January 10, 1952, the Union filed its petition, 16-RC -943, alleging the Company had refused to grant recognition for its drivers. The Furniture Workers was duly notified of the filing thereof. On February 5, the Union requested permission to withdraw its petition, which request was granted because it had been untimely filed. On March 11, 1952, the Furniture Workers filed a petition , 16-RC-1025 , and later requested permission to withdraw the same, which was approved The case, according to the General Counsel, was closed and the " file was referred over to" the case listed below. The official records of the Board disclose that on April 29 , 1952 , the Furniture Workers filed its first amended petition, 16-RC- 1045, wherein it alleged that all production and main- tenance employees , including truckdrivers , with the usual exclusions , constituted a unit appropriate for the purposes of collective bargaining Following a hearing on the questions raised by the petition6 the Board , on July 23, 1952 , issued its Decision and Direction of Elec- tion in which it directed that an election be conducted among the employees in the above unit to determine whether or not they desired to be represented by the Furniture Workers for the purposes of collective bargaining After the election had been conducted the Board , through the Regional Director , certified the Furniture Workers as the bargaining agent for all of the employees in the unit Concluding Findings From the foregoing evidence the undersigned finds that during June 1951, Walker became suspicious as to the cause of the increased operating costs of the trucks and after conducting an investigation thereof learned that 11 of the 12 drivers had been engaging in the practice of padding tickets or accepting discounts on purchases , or both. The investigation revealed that these drivers had been engaged in wholesale thievery from the Company which resulted in a loss to it in the approximate sum of $27,000 . During the time in question , and for many years prior thereto, the Company had all its employees covered by a blanket position bond with USF&G indemnifying it, to the extent of $100,000, for any loss sustained through fraudulent or dishonest acts on the part of any of its employees . The 11 drivers admitted they had engaged in the above practices and at various stages of the investigation 6 of them quit their employ- ment . In December another 1 of these drivers was discharged because he padded a ticket at that time. The 4 dischargees , Barker , Sneed, Hughes , and Wigginton, admitted they had com- mitted thefts from the Company but remained in its employ until they received the letter dated January 24, set forth above. The letter makes it abundantly clear that each of these drivers was being discharged as of January 26 because he were no longer covered by the bond. 6Streeter admitted that he and Lair were present at the hearing on May 13, that the hearing officer asked Lair , as representative of the Union, if he wished to intervene in the proceed- ings, and Lair stated he did not wish to do so. 7 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the Company advised these individuals that it would, within 10 days, reemploy them upon their obtaining bond and that the Company would pay the premium thereon as well as reimburse them for their loss of earnings during this period. The dischargees admitted that they made no effort to obtain bond coverage, other than they discussed the matter with Sokolosky. Although Sokolosky was present throughout the hearing, he was not called as a witness by the General Counsel. t In view of all the circumstances under which the four drivers were discharged the under- signed is of the opinion that in cases of this character, an employer is not only fully justified in discharging his employees but his motive therefor is immaterial Thus, the Board in Lloyd A. Fry Roofing Company, 85 NLRB 1222, held that the employer was justified in dis- charging an employee who had been grossly insubordinate and threatening to his superior, and stated: O This conduct was of the kind that would be made the subject of disciplinary action by most employers. There is not the slightest evidence that the Respondent tolerated such conduct by its employees, whether pro-union or anti-union. Under such circumstances, we are unable to say with the Trial Examiner that the reason assigned for Cornett's discharge... was only a pretext Cornett was a union leader, and the Respondent may well have welcomed the opportunity of getting rid of him, but neither his activities nor the Respondent's attitude, gave him privileges greater than those of other employees. (Cases cited.) However, the representative of the General Counsel in his brief argues in substance that since the discharges took place some time after the thefts had been discovered and as they occurred in a background of union hostility, the Company merely used the thefts as a pretext to eliminate union adherents from its employ. He further points out, as related by the indi- viduals, that Walker and Cooper assured them that they would not be discharged by reason of the thefts. In this respect Barker testified that he went to Walker and told him that he h, ,d to have a job since he had a wife and three children to support and asked Walker if he was going to be discharged. Walker thereupon assured Barker if he did not pad any more tickets he could work for the Company as long as he wished. Walker denied that he ever made any such statements but simply informed these drivers that while the Company did not intend to prose- cute them he could not give any assurances that USF&G would not do so, and further advised the employees that he did not intend to discharge them at that time. The testimony of the witnesses for the General Counsel concerning Walker's alleged promises of continued em- ployment seems highly improbable and implausible. On the other hand, Walker's version of his position as expressed to the drivers is reasonable, convincing, and entirely consistent with the uncontroverted facts. The undersigned therefore finds that neither Walker nor Cooper advised the drivers that they would not be discharged for their misdeeds or that they would remain indefinitely in the employment of the Company. Nor does the undersigned attach any significance to the fact that the termination letters were not delivered to the dischargees until some 6 months subsequent to the initial discovery of the padding and discount practices. It is readily understandable from the scope of the Company's operations and the nature of the transactions in which the dischargees were participating , plus the fact that they them- selves could not approximate the amounts they had unlawfully obtained, perforce required difficult and lengthy investigation to determine the loss suffered by the Company. The testi- mony of Walker and Hanson concerning the extent of the investigation and their dealings with USF&G fully explains the reasons for the alleged delay, which testimony, without repeating the same, is accepted and credited by the undersigned. The testimony of Adams on this phase of the case is to the same effect Here it cannot be seriously disputed that the Company had valid reasons for discharging the drivers, hence it cannot be said that this action was discriminatory unless precipitated by antiunion considerations. The Board has long recognized the principle that the Act does not circumscribe the right of an employer to select, discharge, or discipline his employees, or to otherwise alter their employment status, for reasons other than those forbidden by the Act. In commenting upon this principle the Board, in its Fifteenth Annual Report for the fiscal year ended June 30, 1950, stated In each case, therefore, the Board scrutinizes the facts to determine whether or not the treatment of the employees involved was motivated by a desire on the part of an employer to encourage or discourage union membership or other activities protected 7 The General Counsel did not deny the assertion by counsel for the Company to the above effect. The undersigned entertains no doubt concerning Sokolosky's attendance at the hearing. OKLAHOMA FURNITURE MANUFACTURING COMPANY 783 by the statute. For the Board to find a violation of this section a preponderance of the evidence must show that the employer acted from an illegal motive ... [and] the General Counsel at all times has the burden of establishing illegal motivation . Thus, the Board found no violation when the evidence established that an employer discharged employees for refusal to obey normal orders of a supervisor , or solely on the belief that they had falsified time cards , or in another case , because the employees , after warnings , violated a company rule against leaving work without permission of their supervisors... Nor does an employee's known prominence in union activities offer him immunity against discipline. (Cases cited.) Applying these principles in the instant case, the undersigned has no difficulty in reaching the conclusion that the Company did not resort to the cancellation of the bond as to these dis- chargees as a pretext for eliminating drivers who were promoting the Union or because they were engaging in concerted activities . The evidence adduced by the General Counsel in regard to the gathering at the Rail Fence in May 1951 is anything but persuasive or convincing. While Barker and Sneed asserted that Walker threatened to sell his trucks in the event of unioniza- tion and Hughes declared that Walker did not want the Union because the Furniture Workers was already in the plant , their testimony is in direct conflict with that of witnesses produced by the Company Upon consideration of all the evidence the undersigned is of the opinion, and concludes , that the so-called meeting at the Rail Fence amounted to no more than a gathering of the employees for the purpose of discussing certain problems in respect to making deliveries and that in the course of the meeting the drivers brought up the subject of increased compensation . The credible evidence is to the effect that Walker did not agree to any in- creases at that time in order to discourage union activities but simply promised to give the matter consideration. While Walker mentioned he had heard rumors of organization among the drivers he advised them that they were free to join any labor organization of their own choosing. He further pointed out that the Company had had contracts with the Furniture Workers and his relationship with that union had been friendly The evidence , therefore, not only fails to establish any background of hostility towards unionization on the part of the Company but affirmatively indicates that it accepted its responsibilities under the Act and executed collective-bargaining agreements with the representatives of its employees. In furtherance of his theory that the discharges were motivated by illegal considerations, the General Counsel produced certain witnesses who testified as to various acts of inter- ference, restraint , and coercion occurring within the 6-month statutory period . The General Counsel does not discuss this evidence in his brief for the reason that it was not controverted and must be accepted as true since it came from credible witnesses. The alleged acts of interference are directed principally against the conduct and state- ments of Reel , truck superintendent or foreman. The evidence of the General Counsel bearing on this phase of the case is so inconsistent , contradictory , and implausible that absent any denial whatever it would be difficult to accept . Thus McGlone said when he was hired in July he told Reel, in response to the latter ' s question , that he held a union withdrawal card whereupon Reel warned him not to mention it for he would be immediately discharged. Apparently . McGlone paid no attention to the warning for he stated he was active in promoting the Union and conceded he was never discharged by the Company . Moreover , McGlone admitted he received long, profitable runs at least until sometime in January, and his complaint that he was then given short trips is certainly not supported by the record . This is indeed a unique form of discrimination. Again, Reel's alleged offer to have the drivers unload at warehouses in large cities instead of unloading at each customer ' s place of business provided they ceased their union activities , is strange and surprising to say the least It is undisputed that the drivers were having difficulty in unloading in large cities because they were nonunion and to overcome this situation Reel advised two of the drivers to join the Kansas City local and the Company paid the initiation fees and dues for these men. Risenhoover testified that during October he was questioned about his union membership and informed Reel that he , too, had a withdrawal card . Nevertheless he continued to work for the Company and Reel made no further mention of the Union until January when he told Risenhoover he hoped the Company "did go union" because he would be - benefited by such action . Wigginton said Reel knew he had signed a union card but stated it made no difference to him whether or not the drivers joined the Union . Somewhat in line with the testimony of McGlone , Barker related that in December , Reel inquired if he intended to join the Union and when he replied he was opposed to it , Reel warned him the Union " will mess you up." Again , in January , Reel asked Barker for the names of the drivers who were interested in the Union or who had joined the same but he refused to disclose this information . Barker 's saga of his encounter with Reel wherein he describes his unwilling noonday ride from Guthrieto Oklahoma City, his enforced imbibing of alcoholic beverages , and the cash offer , the amount of which increased with the con- 7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sumption of the beverages , in exchange for the withdrawal of his charge is indeed interesting and entertaining. But the undersigned has no difficulty reaching the conclusion that when these declarations must be considered as evidence in support of a charge of unfair labor practices they are anything but persuasive or convincing, irrespective of any denial thereof and, therefore, they are rejected. Further, Barker's version of his meeting with Walker and Hanson is contradictory and confusing . Thus, in the opinion of the undersigned, he sought to create the impression the Company attempted to obtain withdrawal of his charge when he asserted its representatives were "wanting me to,withdraw my charges ." although he quickly stated neither Walker nor Hanson asked or told him to do so, and he ended by offering to withdraw all charges, provided the dischargees were permitted to return to work. Walker, according to Barker, said his hands were tied and he could do nothing at that time. In short; Hanson stated Barker inquired if he could be reemployed if he withdraw his charge. and Hanson informed him such action was entirely up to him but the Company could give no assurance as to future employment. It seems sufficient to say that the undersigned finds Barker to be an unreliable witness and, accordingly, his testimony, except when it is fully corroborated and is consistent with the facts, is rejected. In opposition to the foregoing evidence the Company produced three former drivers, who had engaged in the padding practices, all of whom testified that Reel never discussed the Union with them. Of these drivers. Bates and Rice had withdrawal cards from other locals and Pritchett (together with Horseman) joined the Kansas City local after discussing the matter with Reel. Newman, who replaced Reel, likewise testified that the latter never mentioned the Union to him. Of course, a finding of unfair labor practices does not turn on the question of the effectiveness of the unlawful conduct, or the fact that such acts may not have been directed against each and every employee of the employer. However, evidence of latter character may be considered as a circumstance where, as in this case, a somewhat flagrant and illegal course of action is attributed to a representative of the employer, albeit the testimony be doubtful, and it is essential to evaluate the evidence as a whole to reach any determination with respect to the alleged unlawful conduct. The undersigned, therefore, concludes and finds that the evidence is insufficient and inadequate to warrant a finding that the Company engaged in any conduct in violation of Section 8 (a) (1) of the Act. 8 The undersigned further finds that Barker, Sneed, Hughes, and Wigginton were discharged for reasons other than their union membership or activity, or because they engaged in con- certed activities It is undisputed, and found, that following the receipt of the termination notices McGlone reported the matter to Streeter, who requested Walker and Poer to reemploy the men and to recognize the Union as the bargaining representative for all the drivers, which requests were declined. In the latter part of January, Streeter called a meeting of the drivers and announced that it was entirely up to them whether any action should be taken, whereupon the men stated they were in favor of strike action. About February 1, the drivers informed Streeter they were picketing the Company, which action continued for about 90 days when it was abandoned. Streeter had no further contact with the Company. However, Lair met with Hanson, Walker, and Curtis, which Hanson fixed as January 29. and the substance of the meeting was that the Company would not deal with the Union because of its contract with the Furniture Workers. Later, on January 31, Lair telephoned Hanson and, after being advised the Company could not discuss the matter with him, requested a meeting for the purpose of discussing grievances on the part of the drivers. Hanson agreed to such a meeting, with the understanding that Lair would make arrangements for the same, but he heard nothing further from Lair. Meantime the 4 dischargees made no attempt to obtain bond nor did they contact the Com- pany, but along with 3 employees, including McGlone and Sokolosky, established a picket line at the plant. In accordance with the foregoing findings the undersigned further finds that the strike was economic in its origin and was neither prolonged nor converted into an unfair labor practice strike by any conduct or acts on the part of the Company. It is, of course, well estab- lished that in such instances the employer has the right to permanently replace any of the striking employees with new workers at any time prior to their unconditional application for reinstatement. (N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, 345.) There is no evidence that the Company solicited any of the strikers to return to work and by the end of the first week of the picketing the Company had operators for 5 of its 10 trucks and within several weeks from the inception of the strike, it had a full complement of drivers. While the strike was in progress about February 12, McGlone and Sokolosky met with Hanson, 8 The undersigned has considered the testimony of Sneed concerning his conversation with McLaughlin and finds this testimony inadequate to support a finding of interference, assuming McLaughlin was employed in a supervisory status. OKLAHOMA FURNITURE MANUFACTURING COMPANY 785 Walker, and Curtis at the company office. The evidence of the Company is to the effect that there was no discussion concerning recognition of the Union and the only subjects discussed related to complaints or grievances directed against Reel and the manner in which the trucking department operated. McGlone's testimony, while not clear in other respects, discloses that complaints were made as to the way Reel handled truck operations, especially on the loading of trucks and the assignment of trips. The undersigned is of the opinion, and finds, that this meeting was devoted primarily, if not exclusively, to the discussion of grievances. No further meetings were held between representatives of the Company and the strikers. It is undisputed that McGlone was not discharged but ceased working on February 1 to engage in the strike. As a consequence McGlone assumed the status of an economic striker and the question of whether the Company had unlawfully discriminated against him depended upon the corollary question of .whether he made a valid offer to return to work at a time when the Company had vacancies for which he was qualified. Since neither counsel interrogated McGlone on this subject, the undersigned asked him if he had ever made application for rein- statement to his job, and he answered he had not done so . At that point he was excused as a witness. The following day McGlone was recalled by the General Counsel and, in response to a series of leading questions , testified with respect to the meeting on February 12, as follows: Q. (By Mr. Rhea) Now, Bill, I simply made that statement to bring you up to date as to what I wanted you to testify about, but I want to direct your attention specifically to the closing portion of that conference in which offers , if any offers were made, to return the employees to work was discussed. Now, is that clear to you as to what I would like to have you cover? A. Yes. Upon the closing of the meeting, why, we asked that not for--I never asked at any time that me myself be put back to work, but I asked as a group that all drivers be put back to work , and Mr . Walker stated that "My hands are tied, I can't do a thing." Q. (By Mr. Rhea) All right, now, were there any conditions attached to your offer to return these employees to work? A. There were no conditions except they return to work. Q, Was it to be a continuing offer or was it to expire at any time? A. It was continuing. The divergent testimony of McGlone can only be characterized as irreconcilable for, in the opinion of the undersigned, the very simplicity and clearness of the subject matter affords no basis for believing that he may have been confused, misguided, or honestly mistaken in de- scribing the details of this important phase of the case. McGlone was an intelligent, alert, and capable witness and the undersigned entertains not the slightest doubt that he fully understood the original question propounded to him, namely , whether he had ever made application for reinstatement , and which he answered in the negative . His later averral that a valid appli- cation 9 was made unmistakably repudiated his prior testimony on the same topic . Manifestly, only one of these versions may be credited as truthful and forthright. Considering all the circumstances, the undersigned accepts McGlone's original testimony and finds that he made no offer to return to work, either for himself or on behalf of all the strikers. The undersigned, therefore, finds that McGlone was not discharged, nor refused reemployment, by reason of his union membership or activity or because he engaged in concerted activities with other employees. As set forth above, the Union on January 10 filed its petition for certification in a unit con- sisting of drivers, and on February 7, the Regional Director granted permission to it to withdraw the same because of untimeliness. At the hearing there was testimony to the effect that the current agreement with the Furniture Workers did not include truckdrivers , and that they were unaware of the existence of any such agreement . Suffice it to say that if there was any bona fide question concerning the representation of the truckdrivers it could have been resolved in that proceeding. It is abundantly clear from the record that the gravamen of this case is the discharge of the four drivers . It is equally clear that these employees had engaged in unlawful practices resulting in a great loss to the Company, for which any employer would have been fully justified in immediately discharging them . However , for various compelling reasons, the Company did not exercise this prerogative at once but retained the drivers in its employ 9The offer was certainly valid insofar as it related to unfair labor practice strikers. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until after the settlement of its claim against USF&G, and until such time as it was definitely advised that the defaulting employees were no longer covered by the bond and that company would not consent to the reinstatement thereof as to these individuals. Consequently, the Company discharged the employees At the same time it offered to reemploy them within 10 days provided they could secure bond, for which it agreed to pay the premium as well as reimburse them for any loss of earnings in this period The individuals made no worthwhile effort to secure bond, and the Company heard nothing further from them. Under the circum- stances, and as already found, the undersigned is convinced that their union membership or concerted activities had nothing whatever to do with the Company's decision to discharge them Obviously, the Union and its representatives were of the same opinion for after the discharges they made but formal request for recognition and reemployment of the drivers and when these requests were declined, simply withdrew from the pictureio and gave no aid or support to the strike. In his brief, the General Counsel stresses the argument that as early as May or June, the Company was aware of the fact that the drivers werejjo longer covered by the bond. The undersigned finds no credible evidence to support this assertion. Moreover, it is not essential in the determination of this case to enter a specific finding as to precisely when the obligation of the bond terminated as to the employees participating in the illegal practices. The evidence in this respect points to sometime in September or October. In conclusion the General Counsel in expounding his theory of the case urges that the Company, absent antiunion feeling, could have reemployed the strikers when they offered unconditionally to return on February 12. Thus, he contends: The Company will argue, of course, that these employees could not make bond. Such an argument is not valid because the employees had been operating without bond since late in May or the first of June, 1951. No satisfactory reason was ever advanced by the evidence offered by the Company to show why the employees could not have been con- as truck drivers , even though they could not obtain bond coverage . (Emphasis tinued supplied.) Certainly it is not unreasonable or improper for an employer to require all of its employees to be bonded. It is well established that the Act does not attempt to regulate the employer's control of his business , so long as he does not attempt thereby to interfere with the right of self-organization of the employees guaranteed thereunder (Applachian Electric Power Co. v. N. L. R. B., 98 F. 2d 985, 989 (C. A. 4).) Other contentions and assertions set forth in the General Counsel 's brief need not be specifically discussed, except to state they have been considered and found to be without substance and are, therefore , rejected Upon the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The operations of the Respondent, Oklahoma Furniture Manufacturing Company, at its plant located in Guthrie. Oklahoma , occur in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. General Drivers , Chauffeurs and Helpers, Local 886, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent , Oklahoma Furniture Manufacturing Company, has not engaged in unfair labor practices as alleged in the complaint , within the meaning of Section 8 (a) (1) and (3) of the Act. [ Recommendations omitted from publication ] 10 About 3 weeks after the filing of the individual charges, the Union filed a charge alleging that Sharp had been unlawfully discharged. As already stated the complaint was dismissed as to Sharp on motion by the General Counsel.