Specialty Paper Mills, Inc.

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we shall clarify the noncertified unit by including these counter employees in the existing Unit .7 [The Board clarified the existing contract unit represented by Laun- dry, Dry Cleaning and Dye House Workers' International Union,. Local No. 52, by specifically including in the description of the unit, all counter employees employed by New Fashion Cleaners, Inc., at its dry- cleaning departments located in the stores of White Front Stores, Inc., at the following addresses: 21250 Hawthorne Boulevard, Torrance; 499 Orange Show Road, San Bernardino; 7674 South Central Avenue and 5433 West Jefferson Avenue, Los Angeles; 16040 Sherman Way, Van Nuys, 21300 Roscoe Boulevard, Canoga Park; 1151 North Azusa Avenue, Covina; and 8725 Laurel Canyon Boulevard, Pacoima, all located in Southern California.] MEMBER JENKINS, dissenting : The contention of the Employer-Petitioner and Union-Petitioner that the employees working in the leased cleaning concessions at the White Front stores are an accretion to the existing unit under their present contract is not, in my view, sufficient to overcome the funda- mental, and I believe the controlling fact, that White Front and New Fashion are joint employers of the employees involved. Therefore, for the reasons set forth in the dissent in Esgro Anaheim, Inc., 150, NLRB 401, I would dismiss the motion for clarification. a See Brotherhood of Locomotive Firemen and Enginemen , 145 NLRB 1521 The Retail Clerks contends that the Board should deny the motion for clarification because the con- tract between New Fashion and Local 52 contained an illegal union-security clause and other illegal clauses, which would prevent the contract from being a bar to an election. Prior to the hearing, the contract was amended so as to cure any existing illegalities. As the unlawful clauses were eliminated by a properly executed amendment to the con- tract, and as the issue before us is not one of contract bar but rather of defining the boundaries of the unit , we find no merit to this contention. Specialty Paper Mills, Inc. and United Papermakers and Paper- workers, AFL-CIO, C.L.C. Case No. 21-CA-5703. April 30, 1965 DECISION AND ORDER On January 6,1965, Trial Examiner Irving Rogosin issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed a brief in support of the, Trial Examiner's Decision. 152 NLRB No. 22. SPECIALTY PAPER MILLS, INC. 289 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 this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 this case, and hereby adopts the Trial Examiner's findings,' con- clusions,2 and recommendations. We cannot agree with our dissenting colleague that questions during a credit interview, a remark expressing chagrin, or that questions not credited by the Trial Examiner about whether an individual had signed a union card, warrant additional findings of Section 8(a) (1). Employee De La Luz himself quoted Gabriel (Company president) as saying: I want to know how you stand with the company so I can fill out your credit reference, and he asked me some questions about my wages, how many hours I worked a week, and how long I had been with the Company. [Emphasis supplied.] The further question of whether De La Luz would "go all the way with the company" can only reasonably be construed as part of the credit interview in light of De La Luz' admission, as he had stated in his affidavit to the Regional Office, that during this interview Gabriel did not mention the union election or ask him how he was going to vote. Nor can we concur in the view that after learning that employee Martinez was a union adherent foreman Caratenuto's spontaneous comment "after I went to bat for you" constitutes without more a vio- lation of Section 8(a) (1). Finally our colleague would reverse the Trial Examiner's credibility findings because they were allegedly not based on demeanor, and find that employee Soto was asked whether he signed a card, and that such conduct constituted an additional violation ,of Section 8(a) (1), despite the fact that early in his decision the Trial Examiner noted his findings were based upon "his observations of the witnesses." ' The Charging Party contends that the Trial Examiner improperly discredited the testimony of all of its and the General Counsel's witnesses . It is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Such a conclusion is not warranted here. Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd 188 F. 2d 362 (C.A 3) Nor can total rejection of an opposed view of itself impugn the integrity or competence of a trier of fact. N.L.R.B. v. Pittsburgh S.S. Company, 337 U.S. 656, 659 a Inasmuch as Soto's testimony regarding statements allegedly made by Gabriel was discredited , we find it unnecessary to pass upon the Trial Examiner's evaluation of the interrogation if it occurred. 789-730-66-vol. 152-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the reasons previously noted, we find no reason for disturbing the Trial Examiner's findings in the above matters or any compelling or logical reason for reversing his credibility findings. 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 Order recommended by the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed. MEMBER BROWN, dissenting: Contrary to my colleagues, I would reverse the Trial Examiner and find that the Respondent violated Section 8(a) (1) of the Act by inci- dents set forth by the Trial Examiner. Thus, I would rely on his con- clusions that in early December 1963, President Gabriel, in connection with a credit inquiry concerning De La Luz, asked the said employee how he "stood with the company" and whether he would "go all the way with the company," and that in November 1963, supervisor Cara- tenuto, upon learning that employee Martinez was a union adherent, told Martinez that he was surprised that the said employee was among those who would vote for the Union "After I went to bat for you." I do not agree that Gabriel's questions to De La Luz cannot be inter- preted as a reference to the union campaign, and I would so interpret them, nor that Caratenuto's comments do not constitute interference, restraint, or coercion unless accompanied by a threat of detriment or promise of benefit. In addition, the Trial Examiner's rejection of Soto's uncontradicted testimony as unconvincing is unwarranted : he relied neither on demeanor nor any other basis to support his conclusion, and I can find none in the record. Soto's testimony was direct, forthright, and une- quivocal. The Respondent's purpose, as admitted by Soto and found by the Trial Examiner, does not negate Soto's assertions that he was asked whether he had signed a union card. Under these circumstances, the Trial Examiner's credibility resolution is not entitled to the weight customarily accorded such rulings .3 Therefore, I would also find that President Gabriel unlawfully interrogated Soto about whether he had heard from the Union recently and whether he had signed a union card and thereby further violated Section 8 (a) (1) of the Act .4 3 Bonnaz Embroideries Tucking and Pleating, etc., Local 66, 134 NLRB 879, 882. 11 am constrained to note that the Trial Examiner apparently failed to consider the difficulty of the General Counsel ' s witnesses in expressing themselves fluently and in comprehending the English language Since this may have caused their testimony to appear confused in some instances when contrasted with the facile testimony of the Re- spondent's witnesses , consideration of this factor would seem appropriate SPECIALTY PAPER MILLS, INC. DECISION OF TRIAL EXAMINER 291 STATEMENT OF THE CASE This proceeding under the National Labor Relations Act, as amended (29 U.S C. 151, et seq., 61 Stat. 136), herein called the Act, is based upon a complaint issued February 14, 1964, alleging that Specialty Paper Mills, Inc., herein called Respond- ent, or the Company, as the context may require, has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.' Specifically the complaint alleges that, on various dates between September 1 and December 10, 1963, Respondent, by its supervisors, President John A. Gabriel, Plant Superintendent James Marcalus, Tour Boss Andrew Caratenuto and Tour Boss Robert Hooten, interfered with, restrained, and coerced Respondent's employees in the exer- cise of rights guaranteed in Section 7 of the Act, by interrogating employees regard- ing their union sympathies, and threatening them with reprisals, including discharge and loss of benefits, as well as with the closing of the plant, in the event the Union was designated as the collective-bargaining representative of said employees. Respondent's answer admits the jurisdictional allegations of the complaint, as well as the status of the persons named in the complaint as supervisors within the meaning of the Act, but otherwise denies the remaining allegations of the complaint. Motion of the General Counsel at the close of the hearing to conform the pleadings to the proof with respect to names, dates, and other formal matters not affecting the sub- stantive issues was granted without objection. Hearing was held before Trial Examiner Irving Rogosin at Los Angeles, Cali- fornia, on May 11 and 12, 1964. All parties were represented by counsel or a union representative, were afforded full opportunity to be heard, to examine and cross- examine witnesses, to present oral and documentary evidence relevant and material to the issues, to argue orally, and file briefs. All parties declined to argue orally but, pursuant to an extension duly granted, the General Counsel and Respondent filed briefs on June 30, 1964. The briefs have been fully and carefully considered. Upon the entire record in the case, including a view of the plant,3 and my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Specialty Paper Mills, Inc., a corporation duly organized under the laws of the State of California, with its plant at Santa Fe Springs, California, a subsidiary of Gabriel Container Corporation, a corporation located within the State of California, is engaged in the manufacture of paperboard. In the conduct of its business, Respondent manufactures and sells goods valued in excess of $50,000 annually to firms, including Gabriel Container Corporation, which purchase and receive goods valued in excess of $50,000 annually directly from points outside the State of Cali- i The original charge, filed December 16, 1963, was duly served on Respondent on December 17, 1963. 2 At the close of the General Counsel's case, Respondent's unopposed motion to strike certain allegations of the complaint, charging Supervisor Hooten with threatening em- ployees with loss of benefits; Plant Superintendent Marcalus or Supervisor Hooten, with threats to close the plant and to discharge employees, was granted for lack of evidence. 3 Upon motion of Respondent, and over the objection of the General Counsel, a view of the plant was taken by me, accompanied by representatives of all parties, prior to the close of the hearing. Although the view consisted of a general inspection of the plant premises, the principal purpose of the view was to determine whether certain conversa- tions alleged to have occurred at various places in the plant while the machinery was in operation, could actually have taken place, as witnesses testified Since the level of noise generated by operation of the machinery varied from place to place within the plant, and as the record does not always disclose the exact place where particular conversations took place, and whether a particular machine was actually in operation during the con- versation, the results were inconclusive in establishing the fact. I am satisfied, how- ever, that while normal conversation may have been difficult over an extended period while all the machinery was in operation, this did not preclude brief exchanges such as those related hereinafter. It is undisputed that no difficulty was experienced in engaging in conversation In or near the office while the machinery was in operation. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fornia. Respondent admits, and I find, upon the basis of the foregoing and upon the entire record, that, at all times material herein , Respondent has been engaged in; commerce within the meaning of Section 2(6) and (7) of the Act 4 II. THE LABOR ORGANIZATION INVOLVED United Papermakers and Paperworkers , AFL-CIO, C L C., herein called the Union, is, and at all times mentioned herein has been, a labor organization within the mean- ing of Section 2 (5) of the Act.5 III. THE UNFAIR LABOR PRACTICES A. Interference , restraint, and coercion 1. Background On August 8, 1962, the Union filed a representation petition (Case No. 21-RC- 7889 ) for an election among Respondent 's production and maintenance employees. Pursuant to this petition , an election was held on September 19, 1962, as a result of which 21 of a total of 22 eligible voters, cast ballots against , and 1 in favor of the Union. Soon after the year expired , on October 29, 1963, the Union filed another petition for representation (Case No. 21-RC-8674 ), and on December 10, 1963, an election was held among employees in the same unit. Again the Union failed to receive a majority, 12 of the 20 eligible voters , casting ballots against 8, in favor of the Union. On December 16, 1963, concurrently with the filing of the charge in the instant proceeding, the Union filed timely objections to the election. On Febru- ary 19, 1964, 5 days after the issuance of the complaint , the Regional Director issued his report on objections, overruling certain objections , and reserving ruling on others, upon which the complaint is based, until disposition of this proceeding.6 2. The facts On or about September 28, 1963,7 Plant Superintendent Marcalus notified Rudolfo Soto, a backtender, to report to President Gabriel's office. There, in the presence of Marcalus, Gabriel asked Soto whether he intended to quit. According to Soto, Gilbert Martinez, a close friend of his, had quit 2 days before, and Supervisor Hooten had told one of the foremen that Soto intended to quit as well Soto told Gabriel that he had no intention of quitting , and that if he decided to do so, he would give Gabriel notice. During the interview , Gabriel asked Soto if he had heard anything from the Union . Soto said that he had not heard from the Union in 2 weeks. Gabriel then asked him if he had signed a union card. Soto admitted that he had. Gabriel told him that it made no difference that he had signed a card-that he could still change his mind. Although Gabriel was not questioned about this incident , and the remarks which Soto attributed to him stand uncontradicted, Soto's testimony in this regard was unconvincing . It is evident, as Soto himself testified, that Gabriel's purpose in ques- tioning Soto was to ascertain whether, in view of his friendship with Martinez, who had quit, Soto might also be considering quitting , and Respondent might find it neces- sary to obtain an additional replacement. In any case , the mere interrogation, if it actually occurred , unaccompanied by promise of benefit or threat of reprisal, in the- absence of a showing of hostility toward or opposition to the Union, is insufficient to support a finding of unlawful interrogation. Late in September or early October, prior to the filing of the representation peti- tion, Supervisor Caratenuto engaged Jesus De La Luz, a beaterman , in a conversation 4 The findings with respect to the status of Respondent as a subsidiary of Gabriel Con- tainer Corporation are based upon the testimony of Respondent ' s president and general manager , John A. Gabriel. i The Initials "CL C." designate the labor organization known as the Canadian Labor Council of the Dominion of Canada , with which the Union is affiliated 6 The transcript of proceedings incorrectly states the date of the filing of objections as February 19, 1964. This is the date the Regional Director issued his report on objections. The record is hereby corrected accordingly 4 Unless otherwise stated , all dates hereinafter are in 1963 SPECIALTY PAPER MILLS, INC. 293 in the beater room.8 Caratenuto told him that the Company could not afford to have a union in the plant, and that if the Union came in, the employees would be obliged to pay for their uniforms and clean them at their own expense.9 De La Luz also testified that, approixmately 2 weeks after the representation petition was filed, he had a second conversation with Caratenuto. In this conversation, Caratenuto repeated what he had told De La Luz in the previous conversation. Caratenuto told De La Luz to join him in the office, and he did so after completing the job on which he was working. There, Caratenuto told him that the Company had a list of employ- ees who were assisting the Union, and that if the Union won the election, it would be required to furnish the Company with a list of union members, and that Gabriel would "pick [them] off one by one." Caratenuto's version of this encounter casts the matter in a different light. In the first place, according to him, he had only one conversation with De La Luz, in the latter part of August. Caratenuto testified that he had just come "on tour" and, in making his rounds, went up to the beater room. After a casual greeting, he remarked to Jesus, "By the way, I see the union is getting active again." De La Luz agreed, "This time we are going to do something or other." Caratenuto, who was suffering from an attack of laryngitis, told De La Luz that he did not wish to strain his voice to be heard over the noise, and invited De La Luz to meet him in the office in about .a half hour, after he had completed his rounds. De La Luz went to the office, where he found Caratenuto. Asked what he wanted to say, De La Luz repeated what he had said about the Union winning the election this time. Caratenuto told him that it did not matter to him whether the Union won or not, because he, Caratenuto, would "still have to put in [his] eight hours." During the discussion which ensued, De La Luz argued that the Union would obtain increased benefits for the employees, including a 40-cent an hour increase which the union organizer had promised them. Caratenuto countered that the organizer could not possibly have made any such promise because as a union member and former shop steward back East, he knew this could not be so. When De La Luz maintained that the employees were being underpaid by 20 to 40 cents an hour, Caratenuto made a comparison of wage scales and benefits paid at the paper mill where he had worked in the East, with those paid by the Respondent, demonstrating that Respondent's wage rates and benefits were more favorable. In this regard, Caratenuto pointed out that, in addition to insurance, hospitalization and vacation plans, and other fringe benefits, the Company was furnishing the men with uniforms and laundry, in contrast to other papermills where he and other employees in the plant had worked. Cara- tenuto denied telling De La Luz that if the Union won the election, the Company would no longer supply them with uniforms and pay for their cleaning.10 Although De La Luz did not specifically charge Caratenuto with having said that the Company would shut the plant if the Union won the election, Caratenuto denied making any such statement. He testified that what he told De La Luz was that, in the event the Union won the election, it would be obliged to negotiate with President 'Gabriel, and that if negotiations broke down, employees would have the choice of 6 The beater room is not actually a separate room but an elevated platform reached by a stairway at one end of the plant. The plant comprises a single, one-story building, 300 feet by 80 feet, in which the entire manufacturing process is conducted in a con- tinuous operation , from the time wastepaper is loaded into the beater until the finished product emerges in the form of rolls of corrugated paper or liner board weighing from 1,800 to 3,000 pounds each. Approximately 60 percent of the floor space in the build- ing is occupied by machinery and a boilerroom ; the remainder being used for storage space and an office. There are no partitions separating the areas in which the various operations are performed. G The uniform consisted of a blue "khaki " shirt and pants , which the Company had provided and laundered at its own expense. 10 On the subject of uniforms, Caratenuto testified that in June or July Superintendent 1lfarcalus had issued an order directing the employees to wear their uniforms in the plant because the Company was being required to pay for laundering uniforms. In dis- cussing this with employees, Caratenuto told them that if they did not wear their uni- forms, their names would be removed from the laundry list. Incidently, there is no evidence that Respondent, subsequent to the discussion between Caratenuto and De La Luz, altered its policy with regard to supplying and laundering uniforms, or that it required the employees to provide and launder uniforms at their expense. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continuing to work or going on strike. He further denied telling De La Luz that the Company had a list of union adherents or that, in the event the Union won the elec- tion, it would be required to furnish the Company with a list of union members, and that the Company would then be able to eliminate them one at a time. Although Caratenuto first testified that he had had only one conversation with De La Luz, which took place in August, he later testified that he had another con- versation with him several days before a company meeting held at the plant on the Sunday before the scheduled election. This conversation, according to Caratenuto, occurred in the beater room in the early morning hours on the graveyard shift, about 2 or 3 o'clock. Caratenuto asked De La Luz whether he planned to attend the com- pany meeting. De La Luz replied that he was "working graveyard" and that he did not know whether he would attend. Caratenuto told De La Luz that since he would be paid for the time, he was foolish not to attend the meeting, and urged him to go so that he could hear Gabriel speak, adding, "The only thing he's going to ask you is for a vote of confidence, that's all." Caratenuto denied making any of the remarks in this conversation, which took place entirely in the beater room, and lasted only several minutes, which De La Luz had attributed to him in the second conversation. It is evident from the testimony of both witnesses that there were, in fact, two conversations Both witnesses agree that one of these conversations took place entirely in the beater room, and that the conversation, which began in the beater room, was resumed in the office. Since the only remarks which De La Luz ascribed to Caratenuto in the conversation in the beater room dealt with the matter of uni- forms, a subject which, according to De La Luz, was also discussed in the office, it is not unlikely that De La Luz confused the first conversation in the beater room, in which he claimed the subject of uniforms was discussed, with the later conversa- tion which Caratenuto testified took place in the beater room shortly before the elec- tion, and which De La Luz did not deny. It is also probable that Caratenuto was mistaken when he fixed the date of his conversation with De La Luz in the office as the latter part of August rather than late in September or early in October The essential fact is that both witnesses agree that the crucial conversation which began in the beater room and was continued in the office downstairs occurred several months before the election. It is obvious that during this conversation, the men engaged in an argument over the pros and cons of unionization at the plant, and that they engaged in a spirited exchange of views. De La Luz did not testify on direct examination as to that part of the conversation in which the economic issues were discussed It was not until he was questioned about it on cross-examination, that he admitted that Caratenuto had produced "an old union scale," and made some computations relating to wage scales and fringe benefits in the East in comparison with those at the plant. It was in this connection that Caratenuto pointed out that Respondent had been furnishing the employees with uniforms and laundering at no cost to them, in contrast to the practice in papermills in the East. It does not seem reasonable to believe that if Caratenuto were bent on threatening the employees with reprisals in the event the Union won the election, he would have resorted to the issue of the uniforms as the vehicle for retaliation . Rather does it appear that Caratenuto mentioned the sub- ject of uniforms as one of the benefits enjoyed by employees at the plant, not received by employees in other papermills. I conclude and find that the conversation between Caratenuto and De La Luz, which took place at the plant office, involved nothing more than a free exchange of views, argument, and opinion about the comparative conditions prevailing in plants operating under union contracts with those at Respondent's plant I further find that Caratenuto did not, in that or any other conversation with De La Luz, threaten that the Company would require the employees to purchase their own uniforms and pay for their cleaning; would shut down the plant; or eliminate the union adherents "one at a time," if the Union won the election. The fact, as has been found, that Caratenuto initiated the conversation in the beater room, which culminated in the company office, by commenting to De La Luz that it appeared that the Union was becoming active again, is not a sufficient predicate upon which to base a finding that Caratenuto had threatened this or any other employee with reprisals because of their union activity. Early in December, before the election, Gabriel received a credit inquiry about De La Luz. He sent for De La Luz and, in the presence of Plant Superintendent Marcalus, with the credit questionnaire in front of him, said, "I want to know how you stand with the company so I can fill out your credit reference " Gabriel then proceeded to question De La Luz about his wage rate, the number of hours a week he worked, the amount of overtime, and similar matters. SPECIALTY PAPER MILLS, INC. 295 During the conversation, De La Luz testified, Gabriel referred to a "bulletin" which had been posted, and remarked, "Every time something like this comes up, it costs us $3,000 for lawyers' fees alone." 11 Gabriel testified that Marcalus had turned over to him a questionnaire he had received relating to an application for credit by De La Luz in connection with the purchase of a home. Gabriel sent for De La Luz, and asked him whether he was "getting a fair shake" in the purchase of the house, and whether he realized the extent of the obligation he was undertaking. To complete the questionnaire, Gabriel asked him about his earnings, the amount he was required to earn to qualify him as a purchaser, and similar questions When the information was completed, Gabriel told him that it appeared he could qualify for the loan. Gabriel admitted that he asked De La Luz, in effect, "how he stood with the company," but testified that the remark was made in a different context. According to Gabriel, his remark was directed to "how [De La Luz] was progressing in his work and how he stood with the company in that respect." In this connection, De La Luz himself quoted Gabriel as saying, "I want to know how you stand with the company so I can fill out your credit reference, and he asked me some questions about my wages, how many hours I worked a week, and how long I had been with the company." De La Luz later testified, "He asked me if I was willing to go all the way with the company, and I said I would." Gabnel denied this remark, explain- ing that he asked De La Luz whether he intended to stay with the Company in view of rumors circulating in the plant about employees leaving. It is not clear whether this testimony was offered in an attempt to establish that Gabriel resorted to this strategem to discover whether he could rely on De La Luz' allegiance to the Company, or that Gabriel was intimating to De La Luz that if he expected a favorable credit reference, he would be well-advised to align him- self with the Company in the forthcoming election. De La Laz admitted, as he had stated in his affidavit to the Regional Office, that during this interview, Gabriel did not mention the election or ask him how he intended to vote. Nor is there any mention in his affidavit that he told Gabriel, in response to his query, that "he was willing to go all the way with the company." I am unable to conclude upon the state of the evidence that Gabriel's remark as to how De La Luz "stood with the company," and the query as to whether De La Luz would "go all the way with the company," were intended, and could reasonably have been construed, as an attempt to ascertain De La Luz' voting intentions, or to suggest that a favorable credit reference would depend upon how he voted in the coming election With regard to the remark about the legal expense the Company was obliged to incur each time the Union embarked on an organizational campaign, Gabriel cate- gorically denied this statement, adding that he never discussed the subject of his attorneys or their fees with rank-and-file employees To the contrary, Gabriel tes- tified that rumors had been circulated among the employees by the union represen- tative that Respondent had retained the "best attorneys in town and that their fees would amount to between $3,000 and $4,000 " This testimony, which was not refuted, suggests that De La Luz more probably acquired this report from that source, and attributed the statement, mistakenly or otherwise, to Gabriel. It seems altogether improbable that Gabriel would have made such a remark, completely out of context with the subject at hand, namely, De La Luz' credit application. In view of Gabriel's denial, corroborated by Marcalus,12 I conclude that Gabriel did not make the statement concerning legal fees attributed to him by De La Luz. Moreover, such a remark would, in any event, be protected as a non-coercive state- ment of opinion, hence, not constituting interference, restraint, or coercion. Gilbert Martinez was first hired by Respondent about September 26, 1962, and continued working as a fourth hand until September 28, 1963, when he quit volun- tarily. He was rehired on about October 20, 1963 The night before he reported for work, he had a conversation in the office with Gabriel in the presence of Cara- tenuto. According to Martinez, Gabriel asked him if any union representatives had approached him, and whether he had signed a union card. Martinez replied in "There was no further explanation as to the nature of the bulletin. It is probable that the so-called bulletin was, in fact, the notice to employees of the coming election 121 am not unmindful that Marcalus, who was present during this interview, testified that he had no recollection of Gabriel having made the remarks imputed to him by De La Luz, rather than denying that the remarks were made. It is apparent, however, that this was merely his idiomatic way of making a denial, rather than a means of equivoca- tion or evasion. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the negative. Gabriel told Caratenuto that he had no objection to rehiring Mar- tinez if it was agreeable with Marcalus.13 Both Gabriel and Caratenuto denied that Gabriel had questioned Martinez as to whether he had been approached by a union representative or had signed a union card. Some 3 weeks later, Martinez had a conversation in the office, with Caratenuto Martinez testified that he asked Caratenuto his opinion of the Union. Caratenuto ventured that the Union "had its good points and ... its bad points." The men continued talking and, according to Martinez, Caratenuto told him that if the Union ever became the bargaining agent of the employees, Gabriel would "probably shut the plant down." Martinez further testified that several nights later he had another conversation with Caratenuto in the office. Caratenuto told Martinez that he had learned that he had signed a union card, and that Gabriel was disappointed in him because he had given him his job back. Caratenuto asked Martinez who had given him the card to sign, and he told him that it was Bobby Carrascoz. Martinez voluntarily quit his job on February 13, 1964. Caratenuto testified that he had only one conversation with Martinez, some 3 weeks after he was rehired. According to Caratenuto, Martinez visited with him in the office in the early morning hours. Martinez began, "We got Mr. Gabriel beat this time." Asked what he meant, Martinez continued, "We have enough votes this time to swing the election." Caratenuto asked him how he could be sure, and Martinez began "rattling off names," including his own. Caratenuto repeated, "Including you?" Martinez replied "Yes. Why9" Caratenuto told him that he was surprised, "After I went to bat for you." Martinez volunteered that Carrascoz had been distributing cards, and he signed one. With that, Caratenuto terminated the conversation because, he testified, he had been instructed by Respondent's counsel not to engage in discus- sions with employees about the Union. Caratenuto denied that he had told Martinez that Gabriel would close the plant in the event the Union won the election, and testi- fied that he made no notes or lists of employees whose names Martinez had given him, and that he never relayed such information to Gabriel. Martinez further testified that several nights later he had another conversation with Caratenuto about the Union, and that the discussion began with an exchange of view, about the Union. As the discussion proceeded, Martinez boasted that the employees had Gabriel "beat this time,"-that the Union had acquired enough strength to win the election. Martinez did not deny that he "rattled off" the names of employees, including his own, who were in favor of the Union. It is not improb- able that, in his eagerness to convince Caratenuto that the Union would win the election, Martinez did, in fact, name the employees favoring the Union. It is there- fore, difficult to understand why Caratenuto, in an alleged conversation several nights later, according to Martinez, should have repeated what he already knew, that Mar- tinez had signed a union card, and that Gabriel was disappointed in him because he had given him back his job. This suggests, as Caratenuto testified, that there was, in fact, only one conversation, and that Caratenuto's testimony more nearly reflects the discussion which took place. It should be noted that Martinez testified that the first conversation consisted only of a discussion of the advantages and disadvantages of a union. He admitted that no mention was made in that conversation of shutting down the plant. In a second conversation, 2 days later, according to Martinez, all Caratenuto said was that if the Union won the election, "Gabriel would probably shut the plant down." It would appear, therefore, according to Martinez, that there was either still another conversation, or that the substance of the conversation about which Caratenuto testified was included in the same conversation. Martinez' testi- mony, especially that portion relating to the number of conversations, is rambling, diffuse, and impossible to resolve. Caratenuto's testimony, on the other hand, was direct, lucid, and convincing. It gave every indication of plausibility and verisimili- tude, and his version of the conversation, including his testimony that there was only one conversation, is credited. Although he admitted, with commendable candor, that he was surprised when Martinez volunteered that he was a union adherent, after Caratenuto had "gone to bat" for him, this is not a sufficient basis for concluding that Caratenuto had threatened Martinez with the closing of the plant in the event the Union won the election. Nor, is Caratenuto's expression of chagrin at discovering that Martinez was a union adherent, unaccompanied by any threat of coercion or promise of benefit, sufficient to justify a finding of interference, restraint, or coercion. In view of the general unreliability of Martinez' testimony, I am also unable to credit his testimony that before rehiring Martinez, Gabriel questioned him, in the Is Martinez had quit without notice on September 28, and this could explain the reason Gabriel wanted Marcalus to approve the rehiring of Martinez. SPECIALTY PAPER MILLS, INC. 297 presence of Marcalus, about whether he had been approached by the union repre- sentatives, and whether he had signed a union card. The testimony regarding this interrogation impressed me as having been contrived as an afterthought to lay a foundation for Martinez' testimony that Respondent subsequently threatened to shut down the plant. Some 3 or 4 weeks before the election, according to Richard Padilla, a backtender, Caratenuto, told Padilla, in the presence of Martinez, that if the Union won the election, Gabriel would close the plant and "guys that wanted to work would work." Questioned on cross-examination as to how employees could work if the plant were shut down, Padilla, after first denying it, admitted that the remark was made in con- nection with a discussion about what would happen in the event of a strike. Padilla finally recalled that this discussion occurred while a strike, accompanied by picketing, was in progress at a plant in the vicinity. Padilla admitted that Caratenuto made the remark in response to a question by him or Martinez "about the union." Padilla testified that when he asked Caratenuto how it would be possible for the men who wanted to work to do so if the plant were shut down, Caratenuto told him that "it can be rearranged somehow." Padilla was puzzled as to "how [they would] be able to run the machines with a few men," and testified that he did not understand what Caratenuto meant by the remark that it could be "rearranged." Elsewhere, Padilla quoted Caratenuto to the effect that if the Union won the election, and called a strike, the plant would be shut down, and those employees who wanted to do work would do so, and those who were unwilling, would be "on strike." Caratenuto testified that employees frequently sought his opinion on union matters because it was well known among them that he had been a longtime member of a union and a shop steward at a plant in the East. On this occasion, Padilla approached Caratenuto and, remarking about his familiarity with those matters, asked him what would happen if the Union won the election. Caratenuto told him that the Union would be obliged to negotiate with the Company, and if negotiations broke down, the employees would have to consider whether to continue working or go on strike. He denied telling Padilla that the Company would shut down if the Union won the election. Conceivably, Padilla may have interpreted Caratenuto's remark to mean that in the event of a strike, the Company would continue to operate with its supervisory staff or with nonstriking employees, or both, (a possible inference from the remark Padilla attributed to Caratenuto, that the Company would somehow rearrange pro- duction). But such an inference would be directly contrary to what Padilla testified Caratenuto told him-namely, that the Company would close the plant but permit employees desirous of working to do so. Padilla's testimony in this regard appears to be a clumsy effort to substantiate De La Luz' testimony to the same general effect that Caratenuto had stated that in the event the Union won the election, the Company would shut down the plant. In light of Padilla's own version of Caratenuto' s remark, I view Caratenuto's testimony as more plausible, and find that it more accurately reflects the statements made by him. As such, the statements amounted to no more than an expression of views, argument, and opinion, protected as free speech. About 10 a in., December 10, the morning of the election, Padilla, who had been working on the graveyard shift, was summoned to Gabriel's office, where he found Gabriel and Emory Rogers, a machine tender, whom Gabriel had asked to be present as a witness .14 Gabriel questioned Padilla about a report which had reached him through Caratenuto that Padilla had been overheard threatening employee Gary Dahl to convince him to vote for the Union in the election. Padilla denied that he had threatened Dahl, explaining that they had merely been discussing the Union. With that, according to Padilla, Gabriel "changed the subject" and, after reminding Padilla that the Company had hired him in spite of the fact that he had been on parole, asked Padilla what he thought about the Union, and how he intended to vote in the election. Padilla told him, in effect, that that was his own affair. Padilla testified that after some further discussion about his parole, Gabriel returned to the subject of the Union, and asked him if he had signed a union card. Padilla made the same response he had made before. According to Gabriel, when he arrived at the plant shortly after midnight, the night before the election, Caratenuto reported to him that earlier that evening Padilla had threatened Dahl. When Gabriel asked for details, Caratenuto suggested that he telephone Supervisor Hooten, who was more familiar with the episode. Gabriel reached Hooten at home, and learned that he had overheard Padilla say to Dahl, in substance, "You son of a bitch, you better vote for the union or else." 14 Rogers did not testify. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Gabriel sent for Padilla and questioned him about the incident , Padilla admitted that he had been discussing the Union with Dahl but denied threatening him. Under further questioning, Padilla admitted that he had asked Dahl whether he intended to vote for the Union. Gabriel asked Padilla whether he had made the remark which Hooten had attributed to him, and whether he had not "point[ed] his finger at [Dahl's] stomach" while doing so. Padilla, according to Gabriel, admitted that he "might have done that" but that he did not "mean anything by it." Gabriel reminded Padilla emphatically that he knew that he was not to discuss unions "or anything else" during working time . Padilla acknowledged that he had probably made a mistake and promised that it would not happen again. Gabriel agreed that the subject of Padilla's parole was discussed during this inci- dent, testifying that he believed that Padilla had mentioned that he was on parole, had expressed gratitude for his job, and stated his regret about the Dahl incident. Gabriel denied, however, that he had questioned him about the Union, whether he had signed a union card, or whether he intended to vote for the Union . According to Gabriel, Padilla himself volunteered that he intended to vote "for the company." Although at first blush it would seem improbable that Padilla would have volun- teered that he intended to vote for the Company, upon reflection this does not seem so farfetched. There is no doubt that Padilla had been summoned to Gabriel's office in connection with his alleged threat to Dahl . The subject of Padilla's parole was discussed , and mention was made of the fact that the Company had hired him despite his parole and after he had encountered great difficulty in obtaining employment. Padilla had been accused of threatening an employee in an effort to persuade him to vote for the Union. It is not unreasonable to assume that whether he had been justly or unjustly accused he must have realized that his job was in jeopardy. He needed no reminder of what his prospects would be for other employment. Under these circum- stances, it does not seem remarkable that Padilla, who appeared to exhibit a certain bravado while on the witness stand, with fellow employees among the spectators, was probably much more subdued in his confrontation with his employer. Thus, it would not be surprising if he sought to regain his employer's favor by affirming his allegiance, while later saving face with his fellow unionists by testifying that, despite his employ- er's interrogation about his union sympathies , he refused to make any disclosure. While the foregoing is obviously based on a hypothesis , it affords a rationale for Gabriel's testimony that Padilla volunteered that he was voting for the Company, in contrast to Padilla's testimony that when questioned about his union sympathies and voting intentions by his employer he summarily rebuffed him. In any case, I conclude that the preponderance of the credible evidence does not establish that Gabriel interrogated Padilla on the occasion in question regarding his views about the Union , whether he had signed a union card , and as to how he intended to vote in the election.15 Raymond Murphy, a backtender, testified that about a week after the election, he had a conversation with Caratenuto in the office at the plant .16 Caratenuto ques- tioned Murphy about whether he was content with his job, and whether he would like to continue working there, and then asked him if he would like to see the Union come into the plant. Murphy said that he did not know. Caratenuto asked Murphy whether he was worried about anything. Murphy told him that he was not. Cara- tenuto then told him that he would receive a raise of a nickel , then a dime, and later more. Then, according to Murphy, Caratenuto asked him if he knew what would happen to the men if the Union came into the plant . Murphy said that he did not. Caratenuto told him that the Company would "fire [sic] one by one." Caratenuto, however, testified that Murphy came to him early in March 1964 to ask whether he had not become eligible for a raise . Caratenuto told him that he was entitled to a raise of a nickel the first 30 days after moving into a new job, another 15 Since we are concerned only with Gabriel's alleged interrogation of Padilla regarding his union activities , it is unnecessary to resolve the collateral issue of whether Padilla had actually threatened Dahl to coerce him into voting for the Union . It may be noted, however, that Dahl denied that Padilla has threatened him, testifying , in effect, that they merely engaged in an exchange of views about the Union. Padilla was not dis- ciplined, except for the reprimand, and his employment status was not adversely affected It is not alleged , nor is it found , that, by Gabriel's reference to Padilla 's status as a parolee, or the reminder that it had afforded him employment while he was on parole, Respondent, by innuendo or otherwise, threatened to jeopardize his employment in the event he voted for the Union in the election 19 This would place the date of the conversation as about December 17. Under cross- examination, Murphy testified the conversation occurred 1 or 2 months after the elec- tion, later changing the date to 1 or 2 weeks after the election, "because it wasn't too long [after ] the election." SPECIALTY PAPER MILLS, INC. 299 nickel the next 60 days, and another nickel the next 90 days. Murphy told him that he had not yet received his first nickel. Caratenuto agreed to take the matter up with Plant Superintendent Marcalus. As a result, Murphy received a raise of 10 cents on March 9, according to company records. His previous raise, the records showed, had been granted 6 months earlier, when he had been moved from the posi- tion of third hand to that of backtender. Caratenuto denied that he had engaged Murphy in any discussion about the Union on this occasion, and categorically denied the other statements ascribed to him by Murphy. Making due allowance for any possible language difficulties, I was not favorably impressed with Murphy's testimony.17 Apart from conflicting dates which he gave for his conversation with Caratenuto, he was altogether vague, indefinite, and uncer- tain as to when he received his raise, whether it was for 5 or 10 cents, and, more importantly, whether the statements which he imputed to Caratenuto were made in the same conversation as the one relating to the raise. As far as could be ascertained from his testimony, it appears that he claimed that Caratenuto made the statements in the conversation about the raise. That would place the date, based on the date of his last raise, as March 1964, rather than December 1963.18 In either case, the conversation occurred after the Union had lost the election. This poses the question as to why if, as seems more probable, the conversation took place in March 1964, 3 months after the Union had lost the election, Caratenuto should have been threaten- ing Murphy with reprisals if the Union came in. Even assuming, as seems most unlikely (having in mind that Murphy testified at one point that the conversation occurred about 2 months after the election), that the conversation actually occurred about a week after the election, and that somehow this may have had something to do with the objections to the election, no explanation was offered as to why Murphy had been singled out from among all the employees as the person to whom the threat should be conveyed. More significantly, Murphy testified that he never mentioned his conversation with Caratenuto to anyone until several days before the hearing, when he was interviewed for the first time by counsel for the General Counsel in the presence of De La Ruz and the union representative.19 Murphy's testimony taken in its entirety suggests an ill-conceived attempt to con- trive corroboration for De La Luz' similar testimony imputing to Caratenuto the remark that Respondent would eliminate union adherents "one by one." 20 I am 17 Despite his surname, the witness spoke with what appeared to be a strong Spanish accent and may have encountered some difficulty in comprehending questions. However, I am satisfied that this difficulty did not account for discrepancies or inconsistencies in his testimony. 18It may be mere coincidence that the date of the conversation to which Murphy testified initially was about a week after the election held on December 10 The date of the filing of the charge in this proceeding and the Union's objections to the election is December 16. 19 Murphy testified that De La Luz had notified him to appear for this interview. 2O The following excerpt from Murphy's cross-examination furnishes some indication of the basis for my conclusions regarding his testimony: Q. What precisely did Mr. Caratenuto say to you about the union, if anything? A. He don't say about the-I don't remember much what he said. Q. Well, you try to remember. You talked to Mr. Caratenuto and he asked you if you were going to stay on, and how you liked your job, right" A. Yeah. Q. And then he gave you a raise, right? A. Yeah. Q. Did he say anything at all about a union during his conversation? A. No, I don't remember. Q. You don't remember him saying anything about the union at this time? Answer the question, would you please? A. Well, I don't remember. Q. You don't remember him ever saying anything about the union ? Answer please. A. No. Q. Isn't it a fact that he never did say anything about the union? A. Well, I don't remember, sir. Later, on redirect examination, after first testifying in response to a direct ques- tion of the General Counsel that he did not have a conversation with Caratenuto regard- ing the Union after the election, in response to a series of leading and suggestive ques- tions, the witness again reversed himself and testified as he had initially on direct examination to the alleged threat by Caratenuto. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unable to place any credence or reliance on Murphy's testimony, and find that Cara- tenuto did not make the statements attributed to him on the occasion in question. Upon the basis of the foregoing findings of fact, and upon the entire record, I con- clude and find that the allegations of the complaint, that Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Sec- tion 7, thereby violating Section 8(a)(1) of the Act, have not been sustained by a preponderance of the credible, reliable, and probative evidence. CONCLUSIONS OF LAW 1. Respondent, Specialty Paper Mills, Inc., is, and at all times mentioned herein has been, engaged in commerce with the meaning of Section 2(6) and (7) of the Act. 2. United Papermakers and Paperworkers, AFL-CIO, C.L.C., is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the complaint be dismissed in its entirety. Champion Pneumatic Machinery Co. and Local No. 11, Building Service Employees' International Union, AFL-CIO. Case No. 13-CA-6572. April 30,1965 DECISION AND ORDER On December 23,1964, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Decision. Thereafter, the General Counsel filed exceptions to the Decision, with a supporting brief. The Respond- ent filed an answering brief, and cross-exceptions with a supporting brief. The Trial Examiner forwarded, for the Board's consideration,. Respondent's objections to the General Counsel's posthearing motion to amend the complaint, which he had received from the Respondent shortly after his Decision had issued. Pursuant to the provisions of the National Labor Relations Act, as amended, the National Labor Relation Board has delegated its powers in connection with this case to a three member panel [Chairman McCulloch and Members Fanning and Jenkins]. 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, objections, briefs, and the entire 152 NLRB No. 29.