Oklahoma Furniture Manufacturing Co.

National Labor Relations Board - Board Decisions

May 5, 1953

104 N.L.R.B. 771 (N.L.R.B. 1953)

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 . ( Emphasistinued
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.