Southwest Regional Joint Board

National Labor Relations Board - Board Decisions

Feb 20, 1975

216 N.L.R.B. 644 (N.L.R.B. 1975)

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.