Armored Motor Service

634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leonard DeLue, Donald Sebern, Ted W. Rinker, Ted P. Rinker, and Leonard L. DeLue (Executor), a Partnership d/b/a Armored Motor Service and Ernest H. Strickler and John R. Martin. Cases 28-CA-1953-1 and 28-CA-1953-2 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE November 19, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On June 30, 1970, Trial Examiner E. Don Wilson issued his Decision in the above-entitled proceeding, finding that. Respondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Parties filed exceptions to the Trial Examiner's Decision and supporting briefs, and Respondent filed an answering brief. Respondent also filed a motion to strike certain pleadings, and the Charging Parties filed an opposi- tion thereto.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board 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. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,2 conclusions,3 and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and hereby is, dismissed in its entirety. I Respondent's motion to strike the General Counsel's and the Charging Parties' exceptions to the Trial Examiner's Decision is hereby denied as lacking in merit. 2 We find it unnecessary to pass upon , and hence, do not adopt the statement contained in Trial Examiner's fn. 13. 3 These findings and conclusions are based, in part, upon the credibility determinations of the Trial Examiner. The General Counsel and the Charging Parties except. On the basis of our own careful review of the record, we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all the relevant evidence. Accordingly, we find no basis for disturbing those findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). E. DON WILSON, Trial Examiner: Upon charges filed by Ernest H. Strickler, herein Strickler and John R. Martin, herein Martin, individuals, on or about September 25, 1969, the General Counsel of the National Labor Relations Board, herein the Board, issued an order consolidating cases and a complaint and notice of hearing on October 30, 1969, alleging that Respondent named above in the caption, as amended at the hearing, violated Section 8(a)(3) and (1) of the Act. The complaint was amended at the opening of the hearing.' Pursuant to due notice, a hearing in this matter was held before me at Albuquerque, New Mexico, on January 22 and 23 of 1970. The parties fully participated and their briefs have been received and considered. (Charging parties did not file a brief). Upon the entire record2 in the case and from my observations of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Leonard DeLue, Donald Sebern, Ted W. Rinker, Ted P. Rinker, and Leonard L. DeLue (Executor), at all material times have been copartners doing business under the trade name of Armored Motor Service. The partnership has done business in various cities and States, in the business of operating an armored car service. Only its Albuquerque, New Mexico, service is involved in this proceeding. Respondent admits it is engaged in interstate commerce and that at all times material it has been an employer engaged in commerce within the meaning of the Act. It. THE LABOR ORGANIZATION INVOLVED The complaint refers to no union organization. General Counsel's Exhibit 2 refers to International Guards Union of America, herein the Union. I admitted General Counsel's Exhibit 2 into evidence and find the Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Were Strickler and Martin discharged for good cause or because of their union or other protected concerted activities? I More will be noticed in this regard, herein. 2 General Counsel's unopposed motion to correct the record is granted. 186 NLRB No. 88 ARMORED MOTOR SERVICE 635 2. By various acts and conduct did Respondent interfere with, restrain, or coerce its employees in violation of Section 8(a) (1) of the Act.3 B. The Facts 1. The alleged 8(a)(1) violations While the charges in these cases refer only to the discharges of Strickler and Martin, as is true of the original complaint, over objection of Respondent, I permitted General Counsel to amend the complaint4 so as to allege about 13 different acts allegedly independently violative of Section 8(a)(1)5 on the morning this hearing started. Counsel for Respondent was put on notice by me that it could request a continuance but Respondent, being very interested in an early disposition of this matter, did not seek one.6 I shall first consider the allegations of independent violations of Section 8(a)(1)7 as contained in General Counsel's Exhibit 2. General Counsel alleged that on or about August 1, 1969,8 DeLue interrogated employees about the Union. Strickler testified in this connection but gave no testimony or other evidence as to interrogation other than DeLue's saying, "What is there about the Union."9 He further testified that DeLue spoke against the Union and said he would do everything in his power to discourage the Union. According to Strickler, this was the only conversation he had with DeLue about the Union, until August 15. General Counsel further alleged that on or about August 1, DeLue threatened employees with reprisals for engaging in union activities. I assume that he relied on Strickler's testimony to support this allegation. However, Strickler denied to the Trial Examiner that DeLue, on or about August 1, threatened him with reprisals for engaging in union activities. I credit DeLue's denial that on or about August 1, he called Strickler into his office and interrogated him about the petition or his union activities or sympathies. I credit DeLue's denial that he questioned any employee about the Union and further credit his testimony that from August 1, until September 12, he was unaware of which of his employees were engaged in union or concerted activities. I realize that there were probably not more than 10 employees of Respondent and that it was thus a "small shop," but most of the employees' time was spent out of the office. I recognize that DeLue as general manager of the operation had every reason to support Respondent's position in this case right or wrong, but I am convinced that he tried to and succeeded in telling the truth as he remembered it. He was never aware that Strickler or Martin had signed union cards.10 He first learned that Strickler was a "spokesman" for the employees when he received a letter from Strickler dated September 12.11 DeLue credibly testified that he never knew Strickler or Martin had signed union authorization cards. I find insufficient probative or substantial evidence that on or about August 1, DeLue interrogated employees or threatened them with reprisals. General Counsel does not, in his brief, refer to Jay Fairchild's testimony as to interrogation on or about August 1. Based on Fairchild's demeanor and his testimony considered as a whole, I do not credit his testimony. He was discharged on August 1 and was rehired late in August, with backpay, after he withdrew a charge he had filed with the Board in connection with his previous discharge. The merits of his discharge are not before me. He testified that on August 1, when he returned from a late run, DeLue called him into his office and told him he was discharged. He then ceased to be an employee.12 Allegedly DeLue said discharges always took place on a Friday. Fairchild admittedly had a poor memory as to what was said by DeLue or himself because, "This happened quite some time ago." I do not credit Fairchild's testimony that, after his discharge, but as part of the same conversation, DeLue asked him who had signed the petition for the Union.13 DeLue testified that he told Fairchild, Respondent was not interested in his union activities, and that 14 it was aware of union activities but that Fairchild's discharge was because he threatened another employee with physical harm in connection with the Union.15 I find insufficient probative and substantial evidence that DeLue unlawfully interrogat- ed Fairchild on August 1.16 General Counsel alleged that on or about August 1, DeLue "cancelled afternoons off for employees" because they engaged in union activities. Martin and Strickler, each, testified that on August 1, DeLue canceled Martin's scheduled afternoon off.17 DeLue testified credibly and 3 In resolving the issues presented herein, I note that I was unfavorably impressed by the demeanors of Strickler and Martin and do not credit their testimony unless corroborated by otherwise credible evidence. On the other hand, I was favorably impressed by the demeanors of Verble Brower and Leonard L. DeLue and Robert H. Lynn and find that they attempted at all times to tell the truth as they remembered it. In general . I credit their respective testimony. I shall comment on the credibility of other witnesses in the body of this Decision as their respective testimony is discussed. 4 G. C. Exh. 2. 5 Pars. (c) and (g) of G. C. Exh. 2 allegedly also violate Sec. 8(a)(3). 6 I find it hard to believe that General Counsel came upon evidence of the alleged separate 8(a)(1) violations only at the last moment. I think General Counsel should have issued an amended complaint at a much earlier date so that Respondent could have had a more reasonable time to prepare its total defense. Had Respondent moved for a continuance and had I granted it (as well might have happened) it would have required two round trips by me from San Francisco to Albuquerque, New Mexico, at no inconsiderable expense to the Government and no doubt would have upset the time plans of Respondent and General Counsel as well as mine. 7 And (3), as above. 6 Hereinafter all dates refer to 1969, unless otherwise stated. 9 Strickler testified he was sure DeLue didn't know about union activities at this time. 10 Or otherwise engaged in union activities. 11 Pursuant to an August 18 request by the Union to withdraw the petition, the Regional Director granted the request on August 20, and the election scheduled for August 21 was never held. 12 There is no claim by General Counsel that his discharge was in any way a violation of the Act. 13 If such interrogation had occurred it would not be a violation of the Act because Fairchild was no longer an employee. 14 Having received the election petition that day. 15 1 make no finding as to such threat since his discharge is not before me. 16 I cannot credit Fairchild's testimony that he did not read a large red and white decal setting forth rules and regulations, breach of which would be grounds for discharge. which was posted in Respondent's vehicles at all material times and probably for about 10 years, until 2 or 3 months after he was hired. Neither do I credit his testimony that he did not read Resp. Exh. 2 which refers to grounds for discharge, until sometime in October when I find it was posted on the Respondent's bulletin board at all times at least since June. 1r Work became more slack in the summer months and the employees (Continued) 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sensibly that if there were not enough of a crew on a particular day, an employee with a scheduled afternoon off would have to give it up and work that afternoon. DeLue credibly denied that on August 1 he told Martin, "There will be no more days off." He credibly testified that on that afternoon another employee had a medical appointment and there was an insufficient crew, and he told Martin he would have to work that afternoon to fill in. Martin was indignant but worked that afternoon. This was the only occasion that Respondent had occasion to cancel an afternoon off. DeLue at that time had no knowledge Martin had engaged in any union activities. There is no evidence that other employees were denied their scheduled afternoons off or that Martin again lost an afternoon off. I do not credit Strickler's testimony that DeLue said, "No more afternoons off." 18 I find no violation of Section 8(a)(3) or (1) in DeLue's canceling Martin's day off. DeLue did it for the legitimate reason that he was a man short because another employee had a medical appointment that afternoon. I find insufficient probative and substantial evidence that DeLue had any knowledge that Martin had been engaging in union activities.19 I find no violation of Section 8(a)(I) in this regard. In his amended complaint General Counsel alleged that on or about August 2, DeLue threatened the abolition of an established route which would result in the termination of two men, all because employees engaged in union activities. General Counsel does not refer to this in his brief and I find no probative or substantial evidence that such ever occurred. General Counsel alleged that on Sunday, August 3, DeLue visited the houses of employees and interrogated them about their union activities. I find he visited the homes of those employees on that date, the houses of Ray Steensgaard, Art Logsdon, and Martin. The first two employees were not called as witnesses.20 Only Martin testified as to DeLue's Sunday visit. While Martin testified in substance that DeLue said he was very much against the Union and that Martin told him he didn't see why he was opposed to the Union and that Martin thought the Union would be helpful and a good thing, even according to Martin, DeLue did not interrogate him about the Union, as alleged by General Counsel, but rather, Martin volunteered that he was in favor of the Union according to Martin, whose testimony I do not credit. DeLue remarked that if Martin lost his job, "jobs were hard to come by in Albuquerque." Martin admitted that jobs were hard to come by in that city. While General Counsel, in his brief, refers to this as a carefully veiled threat, he does not allege it independently as a violation of the Act. I credit DeLue's testimony that, when he visited the homes of the three employees, he asked them no questions. He merely stated the Respondent's views to them that a vote for the Union worked it out among themselves, who should have an afternoon off, "when." 18 This testimony is not corroborated by Martin who testified DeLue referred only to him. 19 He signed a union authorization card on July 30 and had attended union meetings. 20 1 find General Counsel's failure to call them as an admission that they would not testify that unfair labor practices were committed as to them. 21 Strickler had been very active. He signed a card on July 30, as did was not "necessarily" a vote for better working conditions or higher wages. He did not ask any employee, including these three, any questions about their union activities. He did not ask Martin who was involved in union activity. He made no threats or promises to Martin on this occasion. I find no probative evidence that DeLue interrogated any employees nor threatened them, on his visits to homes on August 3, as alleged by General Counsel. General Counsel also alleged that on this same date at these homes DeLue threatened employees with reprisals for their union activity. The only evidence in support of this is Martin's testimony that, during the conversation, DeLue made the "carefully veiled threat" that if Martin lost his job he would find it difficult "to obtain another in Albuquerque" because jobs were hard to come by there. Aside from the fact that Martin admitted this would be a truthful statement, I have noted I do not credit Martin's testimony, and I credit DeLue's testimony that he made no threats or promises to Martin on this occasion. General Counsel further alleged that DeLue placed Strickler on probation "because of his known union activities," on August 4. First, I find no substantial evidence that Respondent, at this time was aware of Strickler's union activities.21 Strickler testified that at 8:30 a.m., August 4, DeLue put him on 90 days' probation (a warning) for having lost about 10 keys, including keys to "various Foodway store safes" in May. He made it clear in his testimony on direct that DeLue waited from May until August 4, to put him on probation for this loss, with a statement that he would be fired if he broke another rule. He admitted that the keys were important and he was not supposed to lose them. He testified that when he lost the keys in May DeLue comforted him and told him not to worry about the loss of the keys. He was taken off probation several days later, Martin quoting DeLue as saying he had not given Strickler "fair warning." In his brief, General Counsel makes much of the alleged fact that DeLue waited from May to August to discipline Strickler. General Counsel completely ignores Strickler's later admis- sion that on July 30 he lost another entire ring of keys, for the second time, and that on August 4, he was put on probation. Thus it was not a fact that he was put on probation on August 4, because he lost a set of keys in May, but because he lost another set of keys at the end of July. If Respondent had known he was active in the Union and if Respondent had serious antiunion bias it could well have seized upon this situation as grounds for termination. In fact even the 90-day probation was rescinded in a few days. DeLue didn't learn that Strickler had lost the second set of keys until August 3. I find Strickler was not put on probation because of his union activities but because of his negligence of duties.22 about five other employees. Union meetings were held at his house. 22 Note that while Strickler testified that he was put on probation at 8:30 a.m., Martin testified he was present and engaged in a conversation with DeLue at the time of probation for Strickler. However, instead of 8:30 a.m., as testified to by Strickler, Martin fixed the time of this conversation as of the time of their noon meal . Strickler never mentioned Martin's presence or any conversation between Martin and DeLue. DeLue remembered no conversation with Martin when he placed Strickler on probation and testified he probably had none . Under the circumstances I believe Martin made up his conversation with DeLue out of whole cloth. ARMORED MOTOR SERVICE 637 General Counsel alleged that on or about August 5, Brower unlawfully interrogated employees as to whether they had signed union cards. I find no credible nor substantial evidence in support of this allegation. General Counsel alleged that on or about August 17, DeLue suggested that the employees form a committee to deal with Respondent with respect to wages, hours, and conditions of employment and agreed to deal with it if the election petition were withdrawn. He further, in the same paragraph, alleged that DeLue agreed to reinstate Fairchild if his charge was withdrawn. According to Martin and Strickler they had a conversation with DeLue on Friday afternoon, August 15. According to Strickler, DeLue said the Union would jeopardize his position with Respondent and told them that if they withdrew the petition he would do as good if not better than a union for them. DeLue allegedly stated that he'd put $1,000 per man in escrow that no one would be fired for union activities. According to Strickler, Martin said that was unnecessary they would take his word. He added that DeLue told them to give him 4 to 6 months and he would do as good, if not better, than a union. DeLue allegedly23 said he would consider rehiring Fairchild. Strickler added that the following Monday, he and Martin again talked to DeLue about Fairchild. DeLue allegedly said he would not bring back Fairchild and Martin replied that if DeLue didn't bring back Fairchild they would go ahead with the election on Thursday. Again according to Strickler he told DeLue Fairchild would withdraw his charge if Respondent took him back with backpay and seniority.24 Again, according to Strickler, on August 15, DeLue said the employees could have their own committee and he would recognize and bargain with the committee in 4 to 6 months. Martin testified that on August 15 he told DeLue that Fairchild would have to be brought back as a condition of withdrawing the petition According to Martin, on that occasion DeLue agreed to take Fairchild back.25 Martin didn't hear anything said about Fairchild withdrawing his pending charge According to Martin, he did most of the talking. Martin testified they readily agreed to withdraw the petition when DeLue told them that if the Union came in it would jeopardize his chances of taking over the Albuquerque office. Martin testified DeLue did not ask them to withdraw the petition. They decided to withdraw the petition when DeLue said the Union might jeopardize his position if it came in. Martin further testified they didn't want to lose the supervision of DeLue and they "volunteered to withdraw the petition." He then told DeLue that Fairchild would have to be brought back before they would think of withdrawing the petition. According to Martin, DeLue then agreed to reinstate Fairchild with backpay. Note that according to Strickler DeLue only said he would consider giving Fairchild his job back and Strickler further testified that on this occasion he said it was his opinion Fairchild would drop the charges if he were Strickler fixed the place of probation and warning as at the truck, with Strickler in the truck Martin fixed it as being in the Respondent's outer office 23 According to Strickler 24 Fairchild was subsequently reinstated with backpay 25 Note that Strickler testified that on this occasion DeLue said he'd "consider" it 26 This should be enough to show that there is no merit to the second reinstated. Although Martin testified that on August 15 DeLue agreed to reinstate Fairchild, Strickler on cross- examination could remember no mention of Fairchild's charge. Strickler testified that on no date did DeLue state he would reinstate Fairchild with backpay if he withdrew his charges.26 As noted I do not credit the testimony of Martin or Strickler unless corroborated by otherwise credited evidence. I credit DeLue's version of the incidents on August 15. According to him, Strickler and Martin entered his office and said they had no quarrel with him but with Respondent's Denver, Colorado, office.27 They said that, if DeLue would promise to hire Fairchild back, they would withdraw the petition. DeLue said he could not prejudice the election and could make no such promise. He said Fairchild presented an entirely different problem than the election and would have to be considered on its own merits. He could make no promises at that point in time.28 He told them he could make them no promises or deals. He did not tell them they could form their own committee and he would bargain with it. It was not discussed. He did not tell them he would reinstate Fairchild if his charge filed with the Board were withdrawn. DeLue confirmed that he again spoke to Strickler and Martin on the following Monday, in the presence of employee George Bennett. Strickler and Martin again said they'd withdraw the petition if he'd reinstate Fairchild. DeLue again said that was a separate matter which he would consider on its merits, but he could not prejudice the election. Bennett was still in the employ of Respondent when he testified. He recalled Strickler and Martin, at that time, telling DeLue they would withdraw the petition if DeLue would reinstate Fairchild and DeLue replied that because of the pending petition he could promise nothing. Bennett recalled DeLue saying he would consider reinstating Fairchild if his charge were withdrawn, "but it wasn't up to him." He said it was up to the Denver office to make that decision. DeLue said, according to Bennett, that he could make no promises because of the pendency of the election petition. I have already noted that I credit DeLue's testimony and I hereby credit Bennett's partial corroboration thereof. Strickler testified he was elected employee spokesman at one of the union meetings held at his house prior to the filing of the petition. I find insufficient probative or substantial evidence that on or about August 17 Respondent suggested that the employees form their own committee and that Respondent would bargain with it if the petition were withdrawn or that DeLue agreed to reinstate Fairchild if he withdrew his charge. Steinkamp, called as a witness by General Counsel, was still employed by Respondent when he testified. He testified that it was before the petition was withdrawn that DeLue suggested to the employees that they form their own committee so they could submit proposals to DeLue who part or sentence of par (c) of G C Exh 2, the amendment to the complaint Strickler further testified that the only time he discussed the Union with DeLue was August I 27 Apparently the head of at least several offices of Respondent, including the one here involved 2" The election was less than a week away and he had very competent counsel 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would forward them to the Denver office for its considera- tion. He earlier testified that it was after the petition was withdrawn that DeLue told the employees he had no wish to deny the employees the "right to present suggestions to him and help him come up with something he could take to Denver." DeLue told the employees he wanted something he could take to Denver. Steinkamp's testimony was so contradictory I cannot rely upon it. I do not believe he deliberately falsified any of his testimony. but I do not find he had a clear recollection of when and what DeLue may have said about a committee of employees. Bennett, who was elected secretary of the committee and was an employee of Respondent when he testified, testified that the committee was formed before the petition was withdrawn, and he did not believe DeLue suggested its formation but on the contrary testified the employees suggested the formation of a committee "among ourselves." He testified further that there was general talk among the employees and out of that general talk came a decision, "let's form our own -negotiating committee and deal with management." As noted, I found Bennett to be an honest witness and credit his testimony.29 According to Bennett, shortly after the petition was withdrawn, DeLue said Respondent wanted the employees to have representation. He did not say this before the petition was withdrawn. The employees never bargained with Respondent "directly." I credit DeLue's testimony that after the petition was withdrawn, a general group of the men discussed bargain- ing between DeLue and them. DeLue said they should prepare proposals as to what they wanted and they would be considered. He did not tell them to form a committee. He said he would submit their proposals to Denver for consideration. This meeting was on September 12 and this is when he first learned Strickler was the elected spokesman of the employees. I find the committee existed for the purpose of making "suggestions" as to wages, etc., to be forwarded to Denver for its consideration. While Stein- kamp testified DeLue suggested "bargaining," he admitted DeLue only sought a proposal to take to Denver. General Counsel alleged in paragraph (j) of General Counsel's Exhibit 2 that on or about August 23 Respondent allowed the employee committee to meet on Respondent's premises for the purpose of electing officers to bargain with Respondent. Sometime, four employees signed a proposal for a wage increase vacation schedule. It was posted on the bulletin board. DeLue may have remarked that it looked all right to him. At that time there were 9 or 10 employees and of course a majority had not signed it. DeLue did not bargain with the employees as a group or any of their representa- tives at any time. According to DeLue's credited testimony, on or about August 23, employees asked permission to hold an employee meeting on Respondent's premises. They did not say it was for the purpose of electing officers to bargain with him. They said they wanted a general meeting to come up with a proposal which would be submitted to Denver, for Denver's consideration. They said they wanted to use the outer office30 and DeLue said, "Fine." The men held that meeting that evening. They did not ask Brower to leave his office where they chose to hold the meeting. He was there when they were discussing their business. He did not participate.31 He was on the phone taking calls. He was attending to his business while they held the August 23 meeting. This was the customary place where he transacted Respondent's business. The entire record discloses that officers, including Strickler, Steinkamp, and Bennett were elected employee officers at this meeting.32 Note that there is no 8(a)(2) allegation in the complaint, as amended. The General Counsel stated, in effect, that this was intentional. No Union was in the picture after August 20. I find no violation of Section 8(axl) in Respondent's acquiesence on August 23, in the employees' request to use Respondent's premises33 for a meeting. If they did not desire Brower's presence they could have asked him to leave or held their meeting some place else. Since they freely elected officers in Brower's presence, and in his office, it obviously did not tend to interfere with, restrain, or coerce them in their activities. In paragraph (k) of General Counsel's Exhibit 2, General Counsel alleged that DeLue, on September 29, about 6 days after their discharges,34 threatened to blacklist Strickler and Martin for their "Union" activities. Strickler and Martin, in effect, testified that DeLue told them he would see to it that they would never work for any armored car service in the United States and he would write letters to prevent such employment from taking place. On the contrary, I credit DeLue's testimony that Strickler and Martin told him on September 29 that their having left the truck unattended with valuables in it was standard practice. DeLue replied it certainly was not. They then said that if they weren't hired back they "were going to smear everybody in the organization." They were going to get even with DeLue. Martin said a lot of people would get in trouble because of their discharges. DeLue had not received copies of the charges at the time of this conversation. DeLue did not refer to all the armored car services in the country, but merely told them they would not work for any branch of Respondent again. Martin did not mention this when he first testified, but when called as a rebuttal witness, on direct, he admitted he said, "Mr. DeLue, you fired me. You have stuck the sword in me first. Up to this point I have been a good worker. From now on I will do everything I can to hurt you." He admitted there was "great animosity." I not only find that while testifying in this case, Strickler and Martin had considerable animosity to DeLue but also, there is insufficient probative and substantial evidence that on September 29, DeLue threatened to "blacklist" them for engaging in "union activities," or "protected concerted activities." In paragraph (1) of General Counsel's Exhibit 2, General Counsel alleged that on or about October 2 and 7, DeLue threatened employees with discharge for giving statements 29 Noting the fact that he was still employed by Respondent when he instructions were alleged as unfair labor practices. testified. 32 Subsequently Strickler. as president, appointed Martin as vice 30 Brower's. president. 31 DeLue had told him to be present at some of the employee meetings. 33 Brower's office. He didn't remember which ones. Neither his presence nor DeLue' s 34 Hereinafter to be discussed in detail. ARMORED MOTOR SERVICE 639 to the Board in support of the charges of Strickler and Martin. Fairchild, whose testimony I do not credit, said that a week or two after Strickler and Martin were discharged he was in the Hilton with employees VanNostrand35 and Montano. According to Fairchild, DeLue approached them and told them they didn't have to give "depositions" to the Board and that the only way Strickler and Martin "is going to get back here is if one of you go over and make a deposition to the effect that you left money in the truck, and if any of you do, you're going to go down the drain with" Strickler and Martin. Montano was called as a witness by General Counsel, but gave no testimony corroborating Fairchild, although Montano was allegedly present when DeLue allegedly made his threat. DeLue credibly testified that he recalled a conversation with Fairchild and Montano at the Hilton Coffee Shop after two or three employees had volunteered to him that they had received phone calls from either Strickler or Martin that they wanted them to go to the Board and give testimony. DeLue told Fairchild and Montano that the requests of Martin and Strickler "were not binding on them. If the National Labor Relations Board wanted testimony from these people, they could call and ask them to come over and make a statement." He did not tell them that they had better not go to the Board or that anyone "would go down the drain." He did not indicate in any manner that a person who gave a statement to the Board would be terminated or in any other way discriminated against. He did not warn any employee not to give a statement to the Board. He did not ask employees if they had given statements to the Board, as alleged in paragraph (m) of General Counsel's Exhibit 2. I find insufficient probative and substantial evidence that Respondent violated the Act as alleged in paragraph (1) or (m) of General Counsel's Exhibit 2. 2. The alleged unlawful discharges of Strickler and Martin Union and other protected activity and "animus" General Counsel alleges that Strickler and Martin were discharged on September 23 because of their union and other protected concerted activities. Respondent denies this and contends they were discharged for one reason only, leaving an armored car unattended while it had "valuables" aboard. There is no question that Strickler and Martin engaged in union activities, union meetings, with Martin among others, present at Strickler's home. As noted each among others signed a union authorization card. Strickler was hired on December 9, 1968, and Martin was hired in June 1968. Both were discharged on September 23, after both had left an armored vehicle unattended with the engine running, though locked, with four "large" bags of money in the back of the vehicle. DeLue personally discovered this situation. The record does not reveal how much money was in the bags. It may have been considerable. I have already made my findings with respect to DeLue and any employees committee. During about the last 4 months of their employment Strickler and Martin operated as a team on the so-called Heights' run 36 There were two other "runs" in the city which are only of passing interest. Strickler and Martin alternated daily as to who would be the "driver" and who would be the "jumper," i.e., the one who would deliver or pick up valuables or money bags. Sometimes these were referred to as "transfers," if they were transferred from another run to the Heights' run. Usually, all three trucks would meet at the Albuquerque National Bank37 about noon. I have already noted that at a meeting, after work on August 23, Strickler, who had initiated the union activities, was elected by a majority 38 of the employees as spokesman for the employees or the "Committee." According to Strickler DeLue had already told Strickler that he could do nothing for the employees for about 4 to 6 months "until he was in complete charge of the Albuquerque office." Strickler said he and Martin had a conversation with DeLue in "August" but didn't remember exactly what was said. They discussed air vents on the vehicles through which hand grenades or tear gas could be dropped, and they discussed truck maintenance. Strickler didn't recall DeLue saying or doing anything about these matters. On September 12, Strickler wrote a long typewritten letter to DeLue.39 According to Strickler, DeLue called a meeting of all the employees on September 12 or 13. Prior to the meeting which started about 11 a.m., Strickler delivered a copy of his September 12 letter to each employee and members of high management and when DeLue came in he gave a copy to DeLue. Among other things Strickler, in the letter, suggested DeLue was not dealing fairly and honestly with the employees even though he had stated he was pleased with the men he had working for him. He invited DeLue to compare the truth and honesty of his words and actions with Strickler's and the other employees. Strickler wrote that the employees had yet to witness any evidence of DeLue's sincerity. Strickler described himself "As the elected spokesman of [DeLue's] employees." Strickler claimed that as spokesman he had became DeLue's "enemy and target" He insisted, in short, that he was as excellent an employee as DeLue ever had or would have. He listed five people as references as to his character and job perform- ance. He at least insinuated that DeLue had not conducted his dealings with the men in a business-like, honest, and fair manner. He pointed out that "Truth is absolute." Strickler invited integrity and a sense of fair play on the part of both DeLue and the employees. Copies of this letter were not only delivered to DeLue and the employees but also to the chairman of Respondent's board of directors, a Board agent, an attorney, and a representative of the Union which was out of the picture as of August 20. According to Strickler, DeLue, after reading the letter 35 He did not testify 38 All who were present 36 Strickler had been working on it since February 39 G C. Exh 5 37 Herein ANB, not A & B as in the transcript 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several times, agreed to practically everything in the letter excepting that he had asked them to withdraw the petition, that "we could deal with him 4 to 6 months downstream." He added, according to Strickler, that Strickler and Martin were "proverbial liars." According to Strickler this meeting between DeLue and the men lasted more than 3 hours. There is no allegation that any unfair labor practice occurred at the meeting. On September 17, DeLue replied in writing to Strickler.40 DeLue in part referred to Strickler 's September 12 letter and the September 13 meeting. DeLue stated, in part, At the time of this 'meeting I reiterated my position, as I have so many times in the past, that no considerations have been sought, and that no promises could be, or had been made which were not already guaranteed by the National Labor Relations Act. For this reason it is difficult to understand the intent of your letter. DeLue continued, referring to some unpleasantness between them in the past which DeLue associated with poor job performance or disrespect for supervision. DeLue then listed, with dates some six alleged failings of Strickler between May 31 and September 12.41 DeLue added that he felt Respondent had been more than fair and tolerant with Strickler. Strickler was notified he would be subject to termination for the next serious infractions of Respondent 's rules or policies. General Counsel points to the above exchange of correspondence, etc., as evidence of DeLue's animus toward Strickler. To the contrary I find DeLue's letter of September 17 to be a comparatively mild reprimand of an employee for at least some admitted misdeeds following a letter from Strickler , comparatively widely distributed, charging DeLue with lack of fairness, honesty, and integrity. Although the meeting allegedly lasted over 3 hours, Strickler had little to testify about as to who said what. He said it was a "quiet" meeting. Strickler then remembered that DeLue asked the men to give him something he could take to the Denver office, to which Strickler allegedly replied, "No, Mr. DeLue, we are not going to give you anything to take to Denver. We are going to give you your four or six months so we can deal directly with you. We do not care what is taking place in the Denver office ." Strickler admitted that at this meeting there was no "bargaining." Martin also gave some testimony as to a statement by DeLue, which is not alleged as an unfair labor practice, but presumably was offered to establish DeLue's animus toward Martin. Strickler testified as to placing a schedule of "runs" for the State Fair, on the bulletin board about September 8, with the knowledge of Brower. Brower told him to prepare it, according to Strickler, but neither Brower nor DeLue consented to his posting it on the board. DeLue apparently saw him posting it and said, "What are you trying to do. I am not going to have anything to do with any 40 G. C. Exh. 61. 41 Strickler admitted to me the accuracy of some of these complaints. 42 Compare Strickler's testimony that no one consented to posting it on the board. 43 If this had in fact occurred I don't believe Strickler would have omitted it from his testimony or that General Counsel would have omitted committee." Strickler allegedly took it off the Board and threw it in the trash can. Strickler allegedly said he presumed the committee was in effect and it would be alright to put the schedule on the Board. Strickler never mentioned the name of Martin as one who was present. Martin alone said he also was present on this occasion. According to him, he told DeLue Brower had given Strickler permission to put the schedule on the bulletin board42 and immediately DeLue said to him, "You are fired."43 They had a conversation for another 2 or 3 minutes and then Martin allegedly asked if DeLue still wanted him to "quit" and DeLue was supposed to have replied, "No, forget it." I credit DeLue's testimony that he had no conversation with Martin about the State Fair schedule and credit his denial that about that time he told Martin he was fired, or that Martin was present. DeLue admitted that he was irate because the posting had not been cleared through supervision44 and the fact that his name was on the schedule for making the morning pickup. Of course, DeLue knew from Strickler's September 12 letter that Strickler claimed to be the spokesman of the employees. He may have known from Brower that Strickler was elected president of some employee committee. After the September 17 letter, Strickler replied in writing that he wanted a copy of the Respondent's work rules. DeLue told Strickler they were posted in the vehicles,45 and if he followed those rules to the letter, he would have no problems. DeLue testified that Strickler was trying "to do apparently a good job for the people, but that he was really over-stepping his prerogatives somewhat." 46 He told Strickler that there was no personnel problem between them but he wanted Respondent to function properly. He would be happy if the employees would follow the rules. After work on September 22, the employees held another meeting which Martin more or less led, according to Steinkamp. They raised the terms of the original proposal that had been put on the bulletin board. The changes were probably substantial. Steinkamp testified that "as far as [he] could recall, Brower was present" and was there when the employees signed the new proposal. Steinkamp when he testified said he thought he had the proposal but after every one signed it he did not know what happened to it. Martin testified Brower was present in his office.47 He saw it on Brower's desk when he signed it but it was still being signed when he left, he "presumed." He didn't know whether anybody removed it from the desk. Brower, in effect, denied that he was at this meeting by testifying he was not present when they were discussing wage proposals to present to management. As I have noted, I found Brower to be an honest witness. DeLue credibly denied that he was unaware of this new wage and vacation proposal until sometime after the discharges of Strickler and Martin, the next afternoon. He further testified it was laid on his desk about 3 weeks after the discharges, and he did not consider it a "contract proposal." He believed it was given to him by Brower but it as an allegation of his complaint. 44 Him. 45 Resp. Exh. 1. 46 See Strickler's September 12 letter where he in effect broadcasted a charge that DeLue lacked integrity, fairness, and honesty. 47 The place of the meeting. ARMORED MOTOR SERVICE 641 he didn't remember. There is nothing in the record as to its whereabouts for this 3-week period.48 3. Respondent's defense to the alleged 8(a)(3)'s and its answers to evidence of General Counsel It must be remembered that Respondent claims only one defense to the alleged 8(a)(3)'s, viz., at a time when Strickler was the driver of an armored car and Martin was the "jumper," they left the vehicle unattended, with the engine running, and with four large bags full of money, in an unknown amount in the locked vehicle about 2:45 p.m., immediately before they were to start their afternoon break and while they were in the process of finishing their first afternoon run. The date they were discharged, September 23, they were at the ANB making their last deliveries of their first afternoon run after lunch. Based on all the evidence, I find they were not yet on their afternoon break but rather were still on a "run" and in the process of finishing it. Strickler testified that at 2:45, they arrived at the ANB. Martin took bags of money into the ANB and Strickler, the driver, got out on the other side and took three bags, two full of money, and one empty, to the Hilton Hotel. He there exchanged bags and took three bags of money to the First National Bank. They left the truck on the street by itself, unattended, with the engine running. He testified that when he came back (the "driver") of the truck was gone, which was normal routine. He testified he then went to Respondent's office and DeLue discharged him for the stated ground of leaving money in the truck (unattended). Strickler allegedly said to DeLue this was "standard practice." Martin testified he was the "jumper" and Strickler was the "driver." Contrary to Strickler, Martin testified they both brought money into the ANB and Strickler left ANB while Martin remained, for the Hilton and the First National Bank, leaving no one at or near the vehicle with the money in it. Martin testified this had been their normal procedure for 4 months. The truck with unknown and possibly considerable amounts of money in it were, left unguarded.49 When Martin was through checking his money into the ANB, according to him, he came out of the Bank and DeLue came to him and asked him, as DeLue hurriedly walked up to him, "Did you leave money in the truck?" Martin untruthfully, answered "No, I took all the money from the truck into the Albuquerque bank and [Strickler] has taken the remaining money over to the other bank. There is no money in the truck." DeLue told him to open the door, saying he wanted to look in the truck. Martin opened the door and DeLue asked "What are those beside the seat?" Martin allegedly answered they were transfers and they always left them there.50 DeLue, according to Martin said, "I am going to terminate you. Drive the truck over to [Respondent's] parking lot." When Martin allegedly asked DeLue if he wished to leave the transfers there, DeLue said not to worry about that but to turn in his gun and badge. Again according to Martin, in the office, Martin said he was the "jumper," not the driver. DeLue allegedly said he was going to discharge Strickler, also. Martin allegedly replied it was inevitable and if he were not fired then, he'd probably be fired the next day. I credit the testimony of DeLue as to the events of the afternoon of September 23. He had occasion to be walking toward the First National Bank, when he observed Strickler's and Martin's armored vehicle with the engine running and no one in the vehicle. After looking in the front of the vehicle, he looked into the back and saw four or five bags of money in the rear of the vehicle and no Respondent employee in the area. He waited 3 or 4 minutes and Martin came out of ANB. The vehicle was about one block from the First National Bank. The truck was 15 or 20 yards from the ANB. After this wait, Martin came out of the ANB and DeLue first asked why the engine was running. He then asked Martin if there were any valuables aboard. Martin said, "No." DeLue asked Martin to open the rear compartment. Martin did so, and DeLue discovered four large bags filled with money. He asked Martin what he called those bags, and Martin replied, "Deposits." DeLue told Martin he would have to terminate him and told him to drive the vehicle to Respondent's parking lot. Stnckler was not present at this time. Martin did not say to DeLue that this was customary procedure. When DeLue asked where Strickler was, Martin replied he presumed Strickler was at the First National Bank. Shortly after Martin left with the vehicle, Strickler came down an alley, from the direction of the First National Bank. It was 3 or 4 minutes before Martin had shown up and another 3 or 4 minutes before Strickler appeared. The First National was at least a city block from ANB 51 DeLue told Strickler to report to the office. DeLue saw Strickler in the office and told him he would have to terminate him for leaving valuables on the truck while it was unattended. Strickler said, "I guess we made a mistake." Martin had protested to DeLue that he was the "jumper" and not the driver but the entire record establishes that he and Strickler had agreed to leave the vehicle unattended when they were finishing their first afternoon run even though valuables were aboard.52 DeLue recalled that Martin said, in effect, "You are going to fire me anyway " DeLue truthfully testified that Strickler and Martin had said it was standard practice to leave vehicles unattended at this time, but DeLue told them it most certainly was not standard practice and he was terminating them for leaving the trucks unattended with valuables aboard.53 Martin testified that DeLue never told him it was o.k. to leave bags of money on the truck unattended, nor did Brower. Martin testified that he knew from at least June that it was the Respondent's stated policy that one man 48 Note that employee's testimony indicates it was signed by only eight men at the meeting When DeLue got it, it was signed by all 10 men I would infer it was not left on Brower's desk but was taken by some employee so as to secure unanimity How long this took is problematical but it may have taken another 3 weeks 49 Part of Martin's and Strickler's duties was to guard the customer's or Respondent's valuables at all times They carried pistols for this purpose 50 Note that "transfers" is merely what they call bags of money or valuables which have been transferred from one run to another 51 Note that Strickler had first gone to the Hilton 52 Contrary to explicit and emphasized rules 53 Assuming arguendo, it was standard practice, there is insufficient probative or substantial evidence that management was aware of this practice in violation of long established and well known Respondent 's rules to the contrary (To be discussed hereinafter ) 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would remain on board a vehicle with gun parts closed and locked at all times when money was aboard and that a violation would not be tolerated. He admitted they were making deliveries to two banks "at the end of a run" but they were making no pickups. I find they (Strickler) were making pickups from the Hilton to be delivered to the First National. Martin, I find, admitted they were still "completing" a run, which means they were still on a "run" when DeLue found the truck with engine running, and money aboard, and unattended. Strickler admitted that, at least as of June, he knew that the Respondent's insurance required that one man would remain on board with gun parts closed and locked "at all times when money is aboard, and that any violation of this rule would not be tolerated." He admitted he and Martin were on a "run" when they were discharged.54 He admitted that on occasions they had turned money bags into the Respondent's safe about 3 p.m. The Respondent's printed and published rules For about 10 years Respondent's vehicles had prominent- ly posted in them a red "Decal" with large white printing,55 which was addressed to "All Employees." 56 It plainly and unmistakeably told All Employees they would be subject to dismissal for violating anyone of six enumerated rules. I consider only two of the rules particularly material herein and shall set them forth. 1. Use of Alcholic Beverages While on duty or in Uniform. 3. Leaving Truck Unattended When Valuables Are in Vehicle. Further, probably before but at least since June, Respondent had on its bulletin board a letter covering insurance.57 In part the letter provided in connection with insurance coverage: One Man Will Remain on Board with Gun Parts Closed and Locked at All Times When Money Is Aboard. Strickler and Martin and other employees admitted the existence of Respondent's Exhibit I on the trucks long before the discharges.58 Most of the employee witnesses admitted having read and initialed Respondent's Exhibit 2. I do not credit Fairchild's testimony that he was unaware of this exhibit until October. It is absurd that he did not look at the bulletin board. This notice plainly stated that, "Any violation of this rule will not be tolerated." Lujan and McGarr, former employees of Respondent, and Bennett testified that the rule about leaving vehicles unattended, while valuables were aboard, was frequently stressed by Respondent. Strickler testified to me that the so-called red decal had about six or seven regulations and that if you broke any of them you would be discharged. He admitted that he knew one of them was "not to leave the truck unattended." 54 Martin attempted to infer that because they were concluding their run they were really on breaktime. 55 Which I could easily read without glasses, although I ordinarily require reading glasses. 56 Resp. Exh. 1. 57 Resp. Exh. 2. 58 They probably had been on the trucks for about 10 years. Lujan and McGarr, former Respondent's employees, and Bennett, a present employee of Respondent, testified that the rule against leaving the truck unattended was stressed more than any other by Respondent. I credit Brower's testimony that the red decal had been posted in the trucks for at least 10 years. He never knew if that rule with respect to leaving trucks unattended with valuables in them was violated and he never told an employee to disregard the rule for any reason. He particularly never told Strickler or Martin that when they had valuables in the truck, when they were on a run, that "they could leave the truck unattended." I credit completely DeLue's testimony that several times, particularly when newspapers referred to a loss by another company, he discussed the situation with the men (a holdup of a bank truck, etc.) and the losses. I credit DeLue in his testimony that until the date of the discharges herein, he never knew that valuables were left unattended in a vehicle either on a run or during lunch or coffee breaks. He never gave his employees permission to leave valuables unattend- ed at such times. DeLue never told Al Lujan or Strickler or Martin or any other employee that it was permissible to leave bags of money or other valuables during working hours or lunch or breaktime in an unattended vehicle. The rule against leaving valuables in a truck unattended were frequently mentioned by management. It was always brought up when a new employee was hired and it was reinforced when in the summer of 1969, money bags were to be brought to the company safe rather than leave them at ANB, pursuant to the latter's request. Prior to the time that DeLue discovered the truck of Strickler and Martin unattended with valuables in it, DeLue was unaware of such situation occurring, even during lunch or breaktimes. He had never told employees that under any circumstances it was permissible either during a run or lunch or break period to leave vehicles in an unattended truck.59 Brower credibly testified that he never told Strickler or Martin that it was "o.k." to leave valuables in an unattended truck.60 General Counsel did a lot of digging in developing testimony that Respondent's rules and regulations were not regularly enforced but were resurrected to get rid of Strickler and Martin on a pretext. First, it should be emphasized that Brower truthfully testified that he, before the discharge of Strickler and Martin, had no knowledge of any employee leaving a vehicle unattended with valuables in it. He was unaware of any employees leaving "transfer" bags on their trucks, while unattended. DeLue also truthfully testified that he was unaware of any instance, other than here outlined, where employees left valuables on a truck, unattended either on a "run" or during lunch or coffee breaks 61 He never gave permission so to do. On the so-called red decal there was a rule against drinking while on duty or in uniform. Fairchild testified 59 Obviously the money had to be guarded at all times, including lunch and breaktimes. 60 There would be no guarding. 61 Of course, Resp. Exhs. I and 2 are clear and explicit. They permit no exceptions for lunch or coffee breaks. Vehicles with valuables aboard are not to be left unattended. ARMORED MOTOR SERVICE 643 that while he was on a 3- or 4-hour break between runs on a Saturday, he had learned he had been accused of breaching this rule by a fellow employee. He decided to see DeLue and he did so. According to him, Martin was present. He told DeLue of the reports he had heard that he had been going over to a bar on his layover and drinking beer, and he told DeLue it was not true, he had gone home and had coffee. According to Fairchild, DeLue told him not to worry about it and that if he wanted to have a beer or two beers during such lengthy layover, have them, but to use his judgment. DeLue didn't mind if he had a beer during his 3- or 4-hour layover. Fairchild said he had denied ever drinking a beer dunng such time. He believed DeLue told him he could have a beer either because he was trying to be a nice guy or he wanted Fairchild to feel better. DeLue credibly testified that Fairchild told him he was off at 11:30 on Saturday, in uniform, and would go and have a beer at lunchtime and they weren't due to go back on duty until 3 p.m. DeLue told him he did not believe he was "on duty" at such time and to use hisjudgment. He credibly testified the rule was designed to keep people who were on the job and working, free from the influence of alcohol and not to keep a man who had more than a 3-hour break on a Saturday from having a beer. DeLue never told Fairchild it was permissible to have a beer anytime he was on break. DeLue's interpretation of rule I on the decal was a reasonable prerogative of management and in no way indicates that it considered its posted decal rules as anything but binding and basis for discharge in case of violation thereof.62 Other than the above slight exception to the decal rules, there is no direct testimony that management was aware of rule violations and particularly the salutory one against leaving vehicles unattended when valuables were aboard a vehicle. I credit the specific denials of Brower and DeLue that they were aware of any violation of the rule against leaving trucks unattended with valuables aboard prior to September 23, when DeLue caught Strickler and Martin in violation. Lynn, the insurance underwater, was an honest and straightforward witness. He credibly testified that it was part of his duties to report any instances of leaving a truck unattended with valuables, to the insurance company, and that coverage would not be continued if the violating employees were not discharged and appropriate measures taken to prevent a recurrence. Strickler and Martin incorrectly assumed or presumed that they were "not" on a run (they were making deliveries of money and Strickler was picking up and delivering money) when they left the truck unattended with valuables aboard. They insisted that although they were working, they were on their afternoon break and the rule did not apply. I find they were not on their break and decal rule 3 did apply and it had no exceptions, it applied also to lunch and break periods. I do not believe, and I find to the contrary that the rule and the notice 63 applied at all times when there were valuables in that truck. It is absurd to conceive that the Respondent intended to leave valuables unguarded during lunch hour and afternoon or possible morning breaks. It was the duty of these employees to guard the valuables at all times.64 It was reprehensible for Strickler and Martin, both, to leave the truck running on the street, with an unknown and possibly a large amount of money in it for 5 to 10 minutes with the intent of further leaving it unguarded during their so-called break period. It was, according to DeLue's credited testimony, the practice, prior to May, that dunng lunch and coffee breaks, transfer bags would be left in a safe place, the drive in cage of the ANB, known as the "dog house." In the summer after the ANB vault had been used, ANB requested that this practice cease,65 and during lunch and coffee breaks, employees were directed to bung valuables to the safe on Respondent's premises. I find, considering the entire record, that keys to this place of safekeeping were distributed to all employees. Martin and Strickler were given a replacement when they lost their key. Martin and Strickler insisted that on the "Heights" run it was standard practice to leave valuables, particularly "transfer bags,"66 unattended during lunch and coffee breaks. Montano, one of Respondent's employees, testified for the General Counsel. He testified that before Strickler and Martin were discharged, it was customary practice to leave valuables in the truck during lunch and break periods. He had no knowledge that Brower or DeLue were aware of the violation. He admitted that because of the decal and Respondent's Exhibit 2, all employees should have been aware of the rule. He admitted that during August and September employees were to put valuables in the office safe dunng lunch and break periods. He admitted there never was a rule that valuables could be left unattended in a truck during lunch or break periods. He knew there was a company rule that he could be discharged for leaving the truck unattended with valuables aboard.67 He testified he knew he would be fired if caught violating this rule. Fairchild, whose testimony impressed me so unfavorably, testified that it was a practice on the Heights run to leave valuables on the truck during lunchbreak. He said he was trained by Lulan to leave the "transfer" bags in the truck and cover them over with mail bags. He admitted that aside from the discharges of Strickler and Martin, he was unaware of any instance where DeLue knew of a violation of rule 3. McGarr testified as a witness for Respondent. He was then an ex-employee of Respondent, and a high school teacher. His demeanor impressed me most favorably and I am convinced he was an honest witness. He truthfully testified that DeLue made a number of comments about the necessity to protect any and all valuables in the vehicle and that the trucks, with valuables in them, should not be left unguarded. He was broken in by Fairchild and Lulan. Neither told him it was permissible to leave valuables on a truck, at any time, unguarded. Neither did Strickler nor Martin when he worked with them. Nobody told him this 62 The management which made the rules could reasonably interpret 65 For business reasons and enforce them 66 1 find these were valuables 63 Resp Exh 2 67 In a pretrial affidavit he testified DeLue told him to put the valuables 64 1 do not believe that management intended its employees to leave in Respondent's safe during lunch and coffee breaks valuables unguarded for an hour to an hour and a half. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was permissible. Valuables were left in the ANB doghouse, or later in one of Respondent's safes. Bennett truthfully testified that valuables were not left on a truck during a "run" or on lunch or coffee breaks. He was never told it was permissible to leave valuables on an unattended truck, at any time. Strickler, Martin, and Fairchild testified they had been broken in by Lujan who told them it was permissible to leave valuables in the truck during lunch and coffee breaks. Strickler added that at one time DeLue saw Lujan and Strickler cover valuables and leave them in an unattended truck during a lunchbreak. He was not "certain" DeLue saw them leave the truck unattended. I credit DeLue's denial that any such incident ever occurred. Lujan was formerly employed by Respondent and at the time he testified he was a member of the New Mexico State Police. He impressed me as being distinctly honest and straightforward. He was aware of the decal rule 3 and that it had been stressed by management. He admitted that he and other employees had violated the rule, because it was too much trouble to follow what I find was a reasonable and salutory rule. The rule was frequently emphasized to all employees. He violated the rule quite frequently, not to the knowledge of Brower or DeLue. He knew he would be "fired" if caught in such a situation. While he broke in Strickler, he never told him it was all right to violate the rule. He told him the rule was vigorously enforced, but they sometimes left valuables unattended "at our own risk." He told Strickler he'd be fired if "caught." He did not believe Strickler's story of DeLue coming upon them while they were covering up valuables. He was never told by DeLue that it was "o.k." to leave valuables unattended, so long as they were covered up. General Counsel attempted to show that the decal rules were a mere matter of form and not strictly enforced. He introduced evidence that Fairchild and another employee had regularly been leaving a Respondent's change box with a little more than $80. of Respondent's money in an unattended truck. Shortly after the discharges above, Fairchild informed DeLue of their practice and inquired if they could be discharged for this. DeLue said they could because it was a valuable. Thereafter Fairchild only picked up the box for the afternoon run. DeLue told Fairchild that while this so-called VanAtta box contained only between $80 and $90 of Respondent's own money it was a valuable and should not be left unguarded. There is nothing inconsistent in not firing Fairchild and his fellow employee for what had obviously been a good-faith mistake. To emphasize that a discharge for decal rule 3 and Respondent's Exhibit 2, was merely a ruse or pretext, Strickler testified that after August 23 he was sent out on a run by himself, because Martin was absent due to his father's illness. This was allegedly August 26. Brower allegedly helped him load his truck and about 8:15 a.m., he left on a run with money and since he was the only one aboard he necessarily left the truck with valuables unattended. This was for 10 or 15 minutes until he returned and got a helpmate. I credit Brower's clear testimony that 68 Strickler by stipulation. 69 N.B. decal rule 3. 70 The one testified about by Strickler and Martin. this never happened. He testified clearly and succinctly, "Because nobody goes out by themselves on those runs." It is plain commonsense to me that Respondent would never want to leave their trucks unattended with valuables aboard, at public places, particularly on the street with engine running as did Strickler and Martin. Strickler and Martin substantially testified68 that on the day before they were discharged, because their truck was not working, they were asked to go on a run in Strickler's auto. They testified that if the vehicle were unattende4 they were told by DeLue to make sure the doors were locked and the windows closed. Martin added some flourishes. He said that during their run they met DeLue and their windows were rolled down and they talked. According to him, DeLue went over to the car and talked to Strickler. Martin readily admitted Respondent was in the business of guarding money. The amount of money in the car was in excess of $50,000. Martin and Strickler made no reference to the presence of Fairchild when they left in Strickler's auto. Fairchild testified he was present before they left when DeLue was talking to them. I do not credit his testimony. He testified that he heard DeLue tell them that if they both had to get out of the car, they should make sure they locked the doors 69 He was not part of the conversation and was allegedly 10-15 feet away from them. Bennett, whose testimony I credit, recalled an incident last summer when Strickler and Martin were asked to use a private car for a run. DeLue told them that one man should remain in the car at all times and the doors were to be locked and the windows up. DeLue truthfully testified that on this occasion 70 he told them to keep the doors locked and the windows rolled up. He did not tell them they could leave the car unattended. He did not see either or both Strickler and Martin in their car that day. He did not see the car with the windows rolled down. The General Counsel, in my view, seized upon straws in an effort to prove that the reasonable and sensible rules contained in the decal were meaningless or at most frequently violated with no censure from management or with its full approval. Of course, a management which sets stringent rules for its employees may, for good or reasonable reasons, permit departures therefrom.71 So, as DeLue testified credibly, there was an occasion when a large amount of coins arrived at the office from the Federal Reserve Bank at about 5:30 p.m.72 Respondent could not accommodate the $800 in their safes, which were full, and the banks were closed. They had no place to put the $800 in pennies. He cleared with and obtained permission from the Denver office, under the circumstances, to permit an employee to put the pennies in his truck, take it home, park it with the doors facing the side of the building and bolt the doors. This was, I find, a reasonable and necessary exception, under the circumstance, to an otherwise rigid rule and that management had the right to enforce its rules in a reasonable manner. I find it was unreasonable for Martin and Strickler whether while on a "run" or on 71 Absent discriminatory application. 72 $800 in pennies. ARMORED MOTOR SERVICE 645 lunchtime or breaktime to leave valuables unguarded in violation of sensible rules without the specific consent of the management which made the reasonable rules. Management made every reasonable effort to enforce its rules.73 General Counsel, in his brief, admits that prior to September 23, DeLue had merely solicited employee proposals to submit to the Denver office for its considera- tion. I find insufficient probative and substantial evidence that anyone of management, at Albuquerque, agreed to "bargaining." As Steinkamp testified DeLue merely advised the employees that they might present suggestions to him to help him in coming up with something he could take to Denver. The September 22 meeting was designed to come up with such a proposal.74 I have already found that DeLue, about a week after the discharges of Strickler and Martin, did not threaten to have them blacklisted nationally. Assuming, arguendo, that DeLue sometime after the discharges of Strickler and Martin, said, "Those guys mean trouble," I find such remark at least ambiguous, but find it to mean more probably that they meant "trouble" because of their violation of strict Respondent rules. I find no substantial evidence that DeLue encouraged and authorized decal rule 3 or Respondent's Exh. 2 to be violated except in a most exceptional and approved circumstance. I specifically do not credit Martin's testimony that he heard DeLue tell Fairchild "there was nothing wrong if he had a few `drinks' as long as he would conduct himself properly, that he didn't mind the men drinking in uniform." 75 I find Respondent reasonably, and consistently, within reason, enforced its decal rules and its rule enunciated in the insurance letter. Definitely, the discharges of Strickler and Martin were for violation of one of the most important of Respondent's rules. DeLue was neither arbitrary nor capricious. He properly and reasonably discharged two men for leaving valuables in a truck, unguarded, with the engine running. I find insufficient probative and substantial evidence that they were discharged for any other reason, including their Union and/or protected concerted activi- ties. General Counsel has simply failed to make out a case in support of his complaint as late amended. General 73 Resp. Exhs. I and 2. 74 I do not credit testimony that DeLue agreed to "bargain" with the employees. Counsel, in his brief, insists that the record discloses a lack of security by Respondent of a sort to do justice "to a Keystone Kops crew." I do not agree. I find there had been violations of Respondent's rules but not to management's knowledge prior to September 23, when the violation was flagrant. I credit Lujan's testimony that when he broke in employees he strongly advised them that a violation of rule 3 was at "Your own risk" and I further find that from time to time and with some frequency management emphasized, especially, the importance of decal rule 3. I do not appreciate General Counsel's reference to the "Lavender Hill Mob" in his brief. That management did nothing about so-called air vents, where a hand grenade or tear gas bomb could be dropped, does not dissipate in the slightest the reasonableness of its posted rules plus the insurance notice violation of which were the genuine grounds for the discharges. This may have been a calculated risk but certainly had nothing to do with a willful violation of long published and well-known rules. Assuming that at lunch and break times the office door and the safes may have been left open, the employees still had the duty to leave the valuables in the safes at such times and not leave the vehicles unattended while they had valuables in them on the street with the engines running. I cannot and do not find that General Counsel has proved by a preponderance of the probative or substantial evidence that Respondent in any way violated the provisions of the Act. I find definitely to the contrary. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. General Counsel has failed to prove by a preponder- ance of the substantial and probative evidence that Respondent has engaged in or is engaging in the unfair labor practices which are alleged in the complaint. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, Respondent's oft repeated motions to dismiss the complaint in its entirety are granted. 75 See my findings supra, as to the conversation between Fairchild and DeLue and the special circumstances . I find Martin embroidered the conversation.