Specialty Paper Mills, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1965

152 N.L.R.B. 288 (N.L.R.B. 1965)

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.