Southwest Regional Joint Board

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southwest Regional Joint Board, Amalgamated Cloth- ing Workers of America, AFL-CIO and Finesilver Manufacturing Company. Case 23-CB- 1515 February 20, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On December 19, 1974, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951 ). We have carefully examined the record and find no basis for reversing his findings. a In dismissing the complaint herein, we rely solely on the credibility findings made by the Administrative Law Judge. DECISION STATEMENT OP THE CASE PETER E. DoNNBLLY, Administrative Law Judge: The charge herein was filed by Finesilver Manufacturing Company (herein called Charging Party or Employer) on May 3, 1974, and the complaint was issued by the General Counsel of the National Labor Relations Board on August 13, 1974, alleging that Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO,' herein called Respondent or Union, violated Section 8(bXIXA) of the Act by threatening an employee. An r Jose Perales (International representative) and Paul Garza (Interna- tional organizer) wen individually named in the charge but were dropped from the complaint. a All data refer to 1974 unless otherwise indicated s The General Counsel offered only the uncorroborated testimony of Roan to establish the allegations of the complaint. answer thereto was timely filed by Respondent on August 24, 1974. Pursuant to notice the hearing was held before the Administrative Law Judge at San Antonio, Texas, on September 18, 1974. FINDINGS OF FACT 1. EMPLOYER'S BUSINESS Employer is a Texas corporation engaged in the manufacture of clothing with its principal office and plant facilities at San Antonio, Texas. During the past 12 months Employer sold and shipped goods valued at more than $50,000 from its San Antonio, Texas, facility to customers located at points outside the State of Texas. During this same period Employer purchased goods valued at more than $50,000 which goods were shipped to its San Antonio, Texas, facility directly from points outside the State of Texas. The complaint alleges, the answer admits, and I find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent in its answer admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Section 8(bx1XA) of the Act through two of its agents by threatening an employee that something could happen to his car, or that something could happen to him and his wife if he went to work. A. Facts Since about late March 1974,2 the Respondent has been engaged in an effort to organize some 600 to 800 employees at the Employer's San Antonio plant. It is undisputed that Jose Perales and Paul Garza were active in this campaign as agents of the Respondent, particularly in the solicitation of employees. Juan Rosas, an employee of the Respondent, testified 3 that sometime between April 11 and 15, at the lunch break between noon and 12:30 p.m., Perales and Garza were soliciting some 15 to 20 employees on the sidewalk outside the plant. Both were speaking in favor of the Union. Rosas approached the group out of curiosity and voiced his opinion that unions were ". . . only good for their own benefit." Perales spoke in favor of unions saying, in substance, that they operated for the betterment of employees. Rosas testified that he next met Perales the following day just as he was going back into the plant after the noon lunch break.4 Just as Rosas was entering the plant Perales, who was in the company of another person, asked Rosas 4 However, on cross-examination it was disclosed that, in an affidavit given to counsel for the Employer, Roses set the date of this incident as April 24. This affidavit also states that both the threat by Perales and the threat by Garza occurred on the same date, April 24, 1974, while in his testimony he assigned different dates to the two threats. 216 NLRB No. 107 SOUTHWEST REGIONAL JOINT BOARD 645 how much money the owners of the Company had given him for talking about the Company to which Rosas replied, ". . . if you already know why do you ask me?" Then Rosas was asked "What if anything did the man say when you told him that?" And he replied, "I don't know what he said because I went inside and I didn't hear him then." Shortly thereafter the following exchange took place between counsel for the General Counsel and the witness: Q. Let me ask it again. Besides the discussion about Finesilver and money as you were going up the steps was there anything else said that you can recall? A. He made a nice remark about my car and he said what a nice car I had. Q. What if anything did you say when that was mentioned? A. All I answered him was thank you. Q. Was anything else said after that that you can remember? A. All-he told me something could happen to my ,car. Q. that? A. What if anything did you say when he told you I didn't say anything, what could I say? Roses further testified that on Wednesday, April 24, he was crossing the street to go to work at or about 7:40 or 7:45 a.m. He was stopped by Garza who asked him where he was going.- Rosas states that he ". . . cannot forget that day because they touch on a point that hurt me very much which was my wife." 5 Rosas told him that he was going to work. After some discussion Garza, according to Rosas, told him that if he went to work ". . . something could happen . . ." to him or his wife. Rosas states that hethen became a little nervous and since he was not feeling well and was' going to see a doctor at 10:30 that day anyway, he went home and did not go to work. The Respondent's account of the relevant facts differs substantially from Rosas' account. While Perales agrees that an incident did occur outside the plant in or about the second week in April 1974, his recollection as to the specifics of the conversation do not fully substantiate Rosas' testimony. As to the threat involving Rosas' car, Perales testified that he never threatened Rosas in any way nor did he ever tell him about something happening to his car. Indeed, Perales states that, apart from the meeting outside the plant, he had no other conversation with Rosas. As to the alleged threat to Rosas and his wife by Garza, Garza testified that he has never spoken to Rosas. Respondent also called as a witness Erbey Rendon, financial secretary for Meatcutters Union Local 171. This testimony involved Rosas' credibility. Rendon stated that Rosas was discharged from a prior employer, Gebhardt Mexican Foods, for excessive absenteeism and filed a grievance thereon with Local 171. Pursuant to the grievance the parties agreed to reinstate Rosas and he was so notified by letter dated April 30. Rosas called Rendon 5 This testimony is at some variance with his testimony on cross- examination regarding the date of the conversation with Garza inasmuch as on cross-examination he testified with respect to the April 24 date, that the only date he remember was that it was Wednesday, but he did not say the date. When asked what day of the month it was , he replied "On a about May 6 and, during a conversation about his reinstatement, Rosas said that he had some difficulty, with the union. Rendon asked what it was and Rosas replied that he would rather ". . . skip on that. . . ." On June 5, Rendon was in the conference room at the Gebhardt plant with Gloria Santos, chief shop steward and president of Local 171. Rosas came mto the room and asked some questions about his backpay due from Gebhardt. Rosas went on to say that Finesilver had told him that the Meatcutters were only trying to get him reinstated at Gebhardt so that he would forget the charge against the Respondent and that he would be fired. Rendon denied this to him. Rosas also stated that he had been offered a supervisor's job by Finesilver and also that he had made an allegation to the effect that ". . . someone had threatened him that was not true and the reason that he did this was in fact that he was highly mad at the Union, you know, because the Union had done nothing for the individual." Rosas conceded that he did talk to Rendon about the allegations of the instant case, but ". . . only discussed two or three words with him" and that he could not recall when it was. Rosas states that he did speak to Rendon by telephone and told him that he wanted to discuss the Union wanting to organize Finesilver, but not on the telephone. Rosas further testified concerning the conversa- tion in the Gebhardt conference room , stating, inter alia, "They asked me if I was going to continue to work in the Company with them or not. I told them I didn't know, I told them I was working with Messrs. Finesilver and that if I left that work I wasn't going to go to work with them because when they threatened me and my wife. Those were the only words that I told them and nothing else. Then he asked me well, what kind of a union and I said I didn't know the union that was going to come in with Finesilver and I didn't know the names of the people. Those are the words I told him. No more than that." B. Discussion and Analysis Due to the conflicting testimony about the two threats alleged in the complaint it is necessary to make credibility resolutions. The conflicts exist between testimony of Rosas on the one hand, and the testimony of Perales , Garza, and Rendon on the other.6 In making the necessary credibility resolutions I have taken into consideration the apparent interests of the witnesses, the probabilities in light of other events, corroboration or lack of it, and consistencies or inconsistencies within the testimony of each witness and between the testimony of each and that of other witnesses with similar apparent interests. In evaluating the credibility of Rosas' testimony as compared to the testimony of Perales, Garza, and Rendon, I am constrained to conclude that the testimony of Perales, Garza, and Rendon is the more credible. Rosas was the only witness called by the General Counsel to support the allegations of the complaint . Obviously his testimony is Wednesday in the month of April." When asked "What number day?' he replied "I wasn't interested about the days, I was interested about my job." 6 This does not imply that the testimony of Perales, Garza, and Rendon is in any way mutually corroborative since each testified as to separate matter. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uncorroborated. Further, Rosas' testimony was, in my opinion, disjointed and inconsistent . For example, as noted above, in a statement given to counsel for Employer, Rosas describes both the threat to his car by Perales and the threat to himself and his wife by Garza as having happened on the same date, April 24, while on direct examination he testified that these incidents occurred on different dates. Again, while Rosas recalled with certainty the date of the threat by Garza as April 24, on direct examination, his recollection becomes cloudy and uncertain about the date when he was cross-examined. These are specific examples giving rise to my conclusion that Rosas' testimony was unreliable and therefore less credible. Another consideration in my failure to credit Rosas is the credited testimony of Rendon to the effect that Rosas admitted to him that he had been untruthful as to the allegations of threats made against him at Finesilver and that he made the allegations because he was mad at the union for doing nothing for the individual. It should also be noted that I regard Rendon's testimony as inherently more credible since he has little apparent interest in the matter, apart from the fact that he is employed by a local r In agreement with the Respondent , I further conclude that even assuming the allegations of the complaint had been fully substantiated, remedial relief nevertheless would not be warranted. Such relief would do little if anything to effectuate the policies of the Act . In a unit of 600 to 800 employees I would regard the two statements made to Roses as coercive, but, as having been made to a single employee in such a large unit, I would consider the remarks as too insignificant and isolated to warrant remedial relief. American Federation of Musicians, Local 76, AFL-CIO (Jimmy union of another International union. This factor does not, in my opinion, substantially detract from his credibility. Thus, I conclude that Rosas told Rendon that his allegations of threats were untrue and I conclude that these inconsistent statements reflect adversely on Rosas' credi- bility. Accordingly, since I do not credit Rosas, and Rosas was the only witness to testify in support of the allegations, I conclude that none of the allegations of the complaint have been supported by sufficient probative evidence.? CONCLUSIONS OF LAW Respondent has not engaged in any conduct violative of the Act. Upon the foregoing findings of fact and conclusions of law, I hereby issue the following recommended: ORDERS The complaint is dismissed in its entirety. Wakely Show), 202 NLRB 620 (1973); Detroit Plastic Molding Co., 209 NLRB 763 (1974). 9 In the event no exceptions are filgd as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.