Armored Motor Service

National Labor Relations Board - Board Decisions

Nov 19, 1970

186 N.L.R.B. 634 (N.L.R.B. 1970)

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.