*2 privately first and conversed with Solm- B., Brown, Stanley L. R. Wash- N. J. sen. Solmsen told Cruz that he had re- (Arnold Ordman, Gen. ington, C. D. Teamsters, ceived a letter from the and Manoli, Counsel, Associate Dominick L. if Cruz one of the Mallet-Prevost, Counsel, Marcel Gen. who favored unionization. When Cruz Counsel, Bur- John D. and Asst. Gen. “maybe was, said that he stated C., Washington, B., goyne, D. N. L. R. we can settle union” this without a and brief), petitioner. for per offered Cruz a week raise $10 City Rosenthal, New York Joseph S. “forget union.” When Ruttenberg Gaines, (Friedlander, & rejected offer, Solmsen said if the brief), City, on Goetz, York New union, fight men wanted a he would not respondents. and ANDER Before WATERMAN drivers, Reynolds, The other three Ri- TYLER, Judges, Dis SON, and Circuit Sojourner vera and John then arrived at Judge.* trict office, repeated and Solmsen represent Teamsters claimed Judge: ANDERSON, Circuit drivers, a and asked if were true. Rivera and Corp. and Die A Electronic & S signed they both said had Corp. Rule affili- A are & Steel Die S. union, he had not. companies operated as ated which are again they stated that wanted single enterprise. A S & business union, one, a have and termi- could factory, approximately non- at which nated interview. employed, supervisory lo- workers are Queens. Long City, Prior cated in Island interviews, About a week or- after the brought to the events which about ganizers Local 106 another present petition,1 experienced & S Production, International Service organizing activity. no union Union, appeared and Sales the A & S bay during employees’ lunch The facts the Trial break, passed authorization cards substantially out as follows. March were On urged sign up. and Cruz, the men to Elliot Israel one the four A clerk, Klein, purchasing the A drivers, & S S truck an authorization Lobbenberg (known Loeb), Kurt card for Local of the International foreman, present. Chauffeurs, shipping A & S were Teamsters, Brotherhood * employee, York, former Israel Of the Southern District New against pro- company. designation. sitting by The various ceedings hearing and a consolidated charges practice was held the Trial Examiner on before Unfair labor were filed Retail, December Wholesale Department Union, AFL-CIO, Store

Loeb, handing 158(a) offering Act, (1), by cards who was the men 29 U.S.C. § urged interrogating Klein them raise to Cruz and stating good union, sign Rivera, Sojourner sign, “it is and Geller did; card” and “the boss won’t mind.” had violated § (2), 29 U.S.C. himself also made some ef- soliciting of Klein Loeb Shortly forts on Local 106. behalf of *3 106; vio- behalf of Local and it had thereafter, Solmsen summoned Robert (1) 8(a) lated 29 158 U.S.C. § § Geller, inspector S, for A and asked an & (a) (1) (3), by reducing the over- a Local 106 he would card “as given Reynolds. time .to work Cruz and declined, favor.” but indicated Geller Board, discussion, The without substan- long oppose would not that union. Not tially adopted find- the Trial Examiner’s afterwards, however, ac- became recommendations, ings, conclusions and organizational tive the efforts and issued a cease and desist order to- Retail, third 65 gether post with orders to the standard Union, Department Wholesale and Store sixty days notice for and to make whole AFL-CIO. When learned Gel- Cruz and losses their 65, activity on of District ler’s behalf pay. 172 N.L.R.B. No. 168 again to his office and called Geller (1968). changed why him mind he had his and had “involved.” Gel- become When regard With to the offer of a ,to ler stated he felt District 65 would that per wage week increase 110 employees, be the best union for the offer, an to in clear that such made things indicated that re- employee pro- duce to forswear his main the same no union matter which predilections, 8(a) union is violative of § chosen, and the conversation ended. (1). Waycross Sportswear, v. Inc. 832, (5 Cir.1968) ; receipt by 403 F.2d 835 Prior to the Solmsen of Laboratories, Inc., NLRB v. Philamon Teamsters, letter from the both Cruz (2 Cir.), denied, 176, receiving 298 F.2d 180 cert. were substantial 919, 1555, 370 Following U.S. 82 8 L.Ed 2d S.Ct. overtime work. inter- (1962). company 8, 498 The attacks views of March of both arguing facts found on this that these drivers was reduced to less than finding week, credibility per Sojour- “the trial examiner’s one hour while that of * * * ner, signed But is without foundation.” who not au- had a Teamsters' significant consistently thorization, this court has held showed increases. Rivera, question credibility is to resolved be who had an authorization card, trial v. had examiner. See NLRB received little no overtime Co., 484, 8, Dinion prior Coil 210 F.2d 487-490 work to March and his situation (2 1952); unchanged. Cir. NLRB L. Farrell v. E. remained A S offered no Co., 205, (2 1966). explanation drop 207 Cir. overtime, but show that interrogation The police been arrested York New Sojourner presents Rivera and differ charges (which narcotics were subse- question. ent When received dismissed) marijuana quently and that requesting the letter from the Teamsters cigarettes had been his recognition, right inquire he had a occasion one when another driver took employees of his indeed de addition, over Cruz was Cruz. representation. sired There union habitually from absent work refused are no threat indications S.olmsen truancy.2 explain any way ened .these three or in attempted away Trial Examiner Martin concluded that to lure them from the 8(a) questioning & had violated S. union. The § was neither complaint charged 2. The had also The and the Board Trial both August 1967, dismissal of Cruz on found the dismissal and that question is, was in therefore, retaliation for activities. us. before

221 contrary, coercive; also contests on the harsh nor finding apparently inform atmosphere rather Board’s that the solicitations employer’s questions Klein and Loeb on behalf Local 106 al.3 Where designed (2). simply to determine the violative It are challenge finding does not are in no that Klein the union and true status of supervisors threatening way to in Loeb were coercive within meaning 2(11) Act, organizational employees’ activ 29 U.S.C. hibit the (1). 152(11), ities, ac asserts that their there is no violation America, Corp. improper tions were not because “no Firedoor oth See NLRB v. denied, organization (2 Cir.), attempting er labor 331 cert. F.2d organize production shipping L.Ed.2d 82 S.Ct. respondents.” (1961); F.2d 47 v. absence Bourne Milco, Inc., competing union, however, 388 of a NLRB does not 1968). finding Most insulate an from the *4 practice encourages an unfair he when conversation with of Solmsen’s join particular to from “threat of union. was free Packing benefit,” Co., not promise and was Abinante & Nola 26 N.L. force 1288, (1944). (1); R.B. Re but Solmsen in violation 1316-1317 See Brass, sign Copper NLRB, vere expressly to card Inc. v. 324 solicited Geller bargaining 132, of Local 106 as 1963). in favor (7 F.2d 136 Cir. Where su agent. that Geller also testified pervisory personnel distribute union au in, got that, 106 him assured urge thorization cards to and they things shop in the would continue as sign them to “it a union is with because change per been, in no Geller’s with good approves and benefits” “the boss carrying position, ob with sonal it,” hardly it can be said that things implication would be that vious company supporting forma was not got This if another union in. different interfering tion of union a labor support the Board’s to was sufficient organizational rights of its em company in vio was conclusion that protected ployees, nor are such actions (2). 8(a) (1) NLRB lation of § meaning 8(c), 29 U.S.C. within the Co., Inc., 665 425 Midtown Service Irving 25, 1970). 158(c). Co. v. Air (2 Chute Cir. Feb. they signed you only testimony was them if on this Did ask “Q. 3. The ex- A. I don’t know what direct himself. On cards for 107? that of you know that I said. I didn’t even amination he stated: hap- exactly Now, time. I cards at that tell me what have “Q. may you meeting? pened called call in union. A. I have said did this majority They they I have the I them that write the men in and told They may very surprised answered a letter is true? have to receive that yes. the driv- Teamsters that Union you they they yes, signed up have answer Q. and that Did have ers majority? my drivers, they and I know had the yes. Yes, true. men know whether this A. three said wanted to me, yes? I said A. Q. And this was confirmed to Which three men you Andy you boys, Cruz, I can’t understand Israel Juan Rivera said jobs good Reynolds, I see John here and can’t have you sign.” benefits didn’t want, Examiner, you you finding by feel that is what the Trial based fight testimony going can I am not was: have vague he was union at all. “On cross-examination you say anything else to and uncertain as what he had asked Q. Did I don’t think the drivers them. He ad- them? A. and said to so. Well, you any- may saying mitted he have them if Q. do recall thing union,’ ‘call[ed] else them? A. I did not.” three Reynolds Cruz, On cross-examination the General them: and Rivera fourth, Counsel, merely replied ‘Yes,’ Sojourner, confirmed his and the ” testimony: sign.’ replied earlier ‘He didn’t 176, (2 whole, record 180-181 On the as a 350 F.2d as it bears 1965). overtime, on the issue Cruz’s we are opinion the Board’s conclu- The Board’s conclusion that supported by is sion not substantial evi- & S violated re portion dence and enforcement of that ducing the overtime work Cruz granted. the order should be because of their activi Enforcement Board’s order fully supported ties record as granted insofar as it relates to the inter- far is concerned. See rogations Geller, activity of Cruz and Products, Buddy Schoellkopf NLRB v. support 106, of Local Inc., reduc- 410 F.2d 86-87 tion of overtime. As to Asphalt those Trumbull Co. of Delaware v. portions of the order which relate Cir.), to the cert. questioning denied, Rivera and So- S.Ct. journer and the (1963). Building reduction in Cruz’s over- L.Ed.2d 1032 Cf. Gulf time, enforcement Corp., denied. 159 N.L.R.B. (1966). regard however, With ample the Trial TYLER, evi Judge (dissenting dence that part): dismissing frequent because disagree opinion I with the from work absences and because court on three issues. using company’s hours after deny enforcement of that involving trans illicit activities part of the order *5 which that A & portation improper of narcotics. The (1) (2) S had violated of § use of the truck also the com through soliciting” by Act “the Klein pany stopping his use of it in overtime my Loeb behalf of Local 106. work, for it was the which overtime use view, unrepeated statements of Klein made the truck available to him for his constituting and Loeb fell of far short purposes.4 own The Trial pattern a of coercion Aof & S found, however, that did not neces regarded protected should be thus as sarily excuse the deletion of Cruz’s over by 8(c) of the Act. closing 4:30, time between the standard time, p. and 6:30 m. when Cruz custo Recent cases in this circuit else- marily parcels took the to the Post Office where seem to have stanched an earlier mailing. urges judicial pronouncements tending of flow justifiable ignore the same reasons ar employers’ to First Amendment ranged mailing rights. to of have the taken care This flood was and at least occa- by other means. The mere coincidence sionally encouraged by still decisions of tending the time of the termination of of the Board to condemn virtu- by overtime use of the ally any truck Cruz and expression by and all anti-union organization the union’s employer effort giving an without sufficient plant support do not weight the conclusion that 8(c).1 to § As I understand the the limitation on his use of circuit, however,. current case law in this reprisal pro-union a for his activities, 8(c) permit must be to read the em- supporting absence of evidence ployer degree a certain of in ex- latitude offered the General Counsel. pressing of view faced when 4. brief, p. As tlie Board expressing its “(c) any views, argu 20: of “If, however, required ment, driver opinion, or or the dissemination beyond P.M., to work 6:30 to thereof, written, as painted, Office, take orders the Post graphic, to form, or visual shall not consti plant could not return the truck to the or tute practice be evidence an unfair labor Accordingly, because it was closed. provisions under case, permitted in that the driver subchapter, expression this if such con overnight to take the truck home reprisal tains no threat of or force or morning.” return it the next promise of benefit.” markably temperate reaction a small Golub Cor- NLRB v. unionization. faced for businessman first time F.2d 921 poration, 388 Company accord, with the unionization of business. Schwarzenbach-Huber coercion, per- 8(c) Absent or threats v. section, employer to an to 1969). By of that mits make known his ar- terms gument (1) opinions or or on matter a which a constitute violation directly As I or behalf affected. read the made statements record, threats, there were no or contain some “threat overt must implied, by (Appendix 55-57); promise of bene- or force opinion indeed, Geller admitted that I believe that fit.” promised his, Geller’s, position effectively principle. him that vitiates this change would not suffer chance True, undisputed evidence there get despite Local to in” 106 “were Gell- supervisory Loeb, as Klein and er's refusal to with that union. acting agents made Arguably, course, one could construe employees that other known various (Appendix 57) a remarks as 106 to be considered consequences veiled threat dire opposed good and was get in, 106 did not but I cannot problem, most Significantly, I see the believe that either court this activity oc comparatively mild this rely Board has meant to on such morbid single No during afternoon. curred conjecture. body exhorted pressured or even taking Hence, any appreciable Finally, deny extent. I would enforcement light for the respecting evidence in the best of the order allowance Board, understand a loss .to how driver, am at lost opinion management expression Essentially, well as to Cruz. the trial “gener to a Reyn- Klein and Loeb amounted examiner based the allowance to pattern conduct which following al or course simplistic olds on the rationale: deprive[d] coercion and (1) Teamsters; constituted] with the Irving choice.” of their free not; driver subse- Company Air Chute quently Reynolds’ fell off *6 NLRB v. Gis Sojourner’s 180 Cir. cf. increased; (4) it follows 575, 618, Packing Co., 395 89 S. day sel night from that the sole cause of (1969).2 1918, 23 L.Ed.2d 547 Ct. employer’s penalize desire Reynolds for his Teamsters affiliation. view, me, is 2. A similar it seems But there are in other facts record. respect in to the issue Solm- Reynolds earned work $201 sen’s conversations with Geller. These during 1967; quarter first place general in a of- conversations took during earned for overtime work $48.58 non-management fice with a number of quarter; the second he earned $8.33 people nearby; certainly in- through July overtime work from course, formal.3 intended company. For when he left the in influence effect manifested work, Sojourner during the earned $874 disapproval of Geller’s association during quarter of first $916 with District these 65. But conversa- during $1,107 quarter second nothing tions amounted to more than evidence, quarter. is no third There and, circumstances, natural re- under importance is fact 2. 3. Of considerable to communicate “[A]n free general small “one- was a to his & S of his enterprise relatively spe- em- man” few views unionism of his about ployees. plainly particular The record shows cific views about a significant blurring long there was not con- the communications do management line and labor. In- between tain a force or ‘threat ” Thus, formality promise p. 618, rule. a favor- 89 S.Ct. of benefit.’ At oppression p. able climate coercion 1942. notably absent. however, of kind of overtime work Reynolds Sojourner.

done either foregoing indicates,

As the recital Sojourn-

there increase $42 during pay er’s overtime the second large

quarter, but his increase over- time, $233, quar- until came not the third quit

ter —i. e. after during period frequent of Cruz’s ab- sum, nothing sences. .there to indi- Reynolds’ any way

cate that loss was Sojourner’s gain during

related to period except speculation

relevant bald — Teamsters affiliation

compelled Bal- discriminate. ancing against speculation facts,

known would hold that there justify evidence

insufficient award of

the allowance to as well as to

Cruz. ex rel.

UNITED STATES of America Joseph RIENZO, Appellant, A. DI

STATE OF NEW JERSEY.

No. 17683. Appeals,

United States Court Third Circuit.

Submitted on Briefs Jan.

Decided March

Joseph Rienzo, pro A. Di se. Joseph County Lordi, P. Prosecutor of County, Podvey, Essex Robert New- L. ark, J., appellee. N.