Casa Grande Cotton Oil Mill

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1834 (N.L.R.B. 1954)

1834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(6) Those suspended on June 8 , 1953, for 1 day:
Aihara , A. Takeuchi, S.
Temashiro, M.
Hirano , E. Teruya, T.
Tuando, F.
Kashiwa, I.
Wahinehookae, C.
Miyasato , J. Waipa, J.
Sumida, A.
'(7) Suspended on June 12 , 1953 , for 1 day:
R. Okubo
'(8) Suspended on June 16 , 1953 , for 1 day:
J. Smith
,(9) Suspended on June 17, 1953 , for 1 day:
W. Kam
,(10) Suspended on June 18 , 1953 , for 1 day:
1. Kekuewa
(11) Suspended on June 19, 1953, for 1 day:
N. Kekoolani
(12) Suspended on June 23 , 1953 , for 1 day:
C. Jamile
HONOLULU RAPID TRANSIT COMPANY, LIMITED,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced , or covered by any other material.
,CASA GRANDE COTTON OIL MILL and UNITED PACKINGHOUSE WORKERS
OF AMERICA, CIO. Case No. °^1-CA-1897. December 16, 1954
Decision and Order
On July 14, 1954, Trial Examiner Maurice M. Miller issued his
Intermediate Report in this proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended that such allegations be dismissed.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a brief in support of the exceptions; the Respondent filed
a brief in support of the Intermediate Report.'
1 The Respondent ' s request for oral argument is hereby denied as the record and the ex-
ceptions and briefs , in our opinion , adequately present the issues and the positions of the
parties.
110 NLRB No . 236. `^^
CASA GRANDE COTTON OIL MILL 1835
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent Company, Casa Grande
Cotton Oil Mill, Casa Grande, Arizona, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Surveillance of any place of union assembly at or about the
time of any scheduled union meeting.
(b) Interference with, restraint, or coercion of its employees, in any
like or related manner, in the exercise of their right to attempt self-
organization, to form labor organizations, to join or assist United
Packinghouse Workers of America, CIO, or any other labor organiza-
tion to bargain collectively through representatives of their own free
choice, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a)
(3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its office and place of business in Casa Grande, Ari-
zona, copies of the notice attached to the Intermediate Report and
marked "Appendix." 2 Copies of the notice, to be furnished by the
Regional Director of the Twenty-first Region, as the agent of the
Board, should be posted by the Respondent Company immediately
upon their receipt, after being duly signed by an official representa-
tive of the Company. When posted, they should remain posted for
sixty (60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Rea-
sonable steps should be taken by the Respondent Company to insure
that these notices are not altered, defaced, or covered by any other
material.
2 This notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order " In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order."
1836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent Company has taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaint be, and it hereby
is, dismissed, insofar as it alleges other violations of Section 8 (a) (1)
and the discriminatory discharges of Thomas Crew, Sherman Bal-
lard, and Delbert McCowan, in violation of Section 8 (a) (3) and 8
(a) (1) of the Act.
CHAIRMAN FARMER, dissenting :
I dissent. Because the Trial Examiner in my opinion failed to
make credibility findings necessary to support his recommendations
of dismissal, I would remand the case for retrial before a different
Trial Examiner.
MEMBER PETERSON, dissenting :
I strongly disapprove of the Trial Examiner's method of handling
the credibility problems in this case. In his lengthy analysis of the
record to determine which of two conflicting versions of crucial testi-
mony to accept, the Trial Examiner makes no effort to resolve sub-
sidiary questions of credibility as to testimony supporting one version
or the other. At the end of his deliberations he states that he "re-
mains balanced in doubt" and that, therefore, the General Counsel
has not met his burden of proof. In my view, counsel for the General
Counsel is on sound ground in arguing that it is not his burden, as the
Trial Examiner would have it, to establish "the credibility of his
witnesses by a preponderance of the evidence." The proper rule is
that Trial Examiners must make specific credibility findings as to
testimonial evidence necessary to support findings of material fact; 3
having discharged this vital function, it then becomes necessary to
determine whether the preponderance of the credited evidence is on
one side or the other on any material issue.
I am of the opinion that the Board should evaluate the testimony
and make its own findings of fact. As there is ample basis in the rec-
ord for a resolution of the credibility issues in favor of the General
Counsel, I would find that the Respondent Company discharged Crew,
Ballard, and McCowan, and interfered with the leaflet distribution,
in violation of the Act.
At the very least, I would follow the procedure suggested by Chair-
man Farmer and remand the case for a de novo hearing before a
different Trial Examiner.
3 Consonant with provisions of the Administrative Procedure Act, the Board's Rules
and Regulations , in Section 102.45, provide " . . [ the Intermediate Report] shall contain
findings of fact, conclusions, and the reasons or basis therefor, upon all material issues of
fact... . 11
CASA GRANDE COTTON OIL MILL 1837
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed and served, the General Counsel of the National Labor
Relations Board issued a complaint and notice of hearing dated March 5, 1954,
against the Casa Grande Cotton Oil Mill, to be designated in this report as the Re-
spondent, under Section 10 (b) of the National Labor Relations Act, as amended.
61 Stat. 136. The Respondent was charged with the commission of certain unfair
labor practices under Section 8 (a) (1) and (3) of the statute. Copies of the com-
plaint, the notice of hearing, and the charge were duly served upon the Respondent;
and it, in turn, filed an answer denying the commission of the unfair labor practices
charged.
The complaint, in substance, alleges, and the answer denies, that the Respondent,
on or about January 4, 1954, discharged and has since failed to reemploy Sherman
Ballard, Delbert McCowan, and Thomas Crew because of their union membership
and because they engaged in concerted activity for the purpose of collective bargain-
ing or other mutual aid and protection. Such conduct on the part of the Respondent,
it is alleged, involved discrimination in regard to the hire and employment tenure
,of its employees to discourage union membership, and interference, restraint, and
coercion of its employees in the exercise of rights statutorily guaranteed.
Pursuant to notice, a hearing was held before me, as a duly designated Trial
Examiner, at Phoenix and Casa Grande, Arizona, on April 12, 13, and 14, 1954.
The Respondent was represented by counsel and the Union by a business representa-
tive. Each of the parties was afforded a full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertinent to the issues.
Upon an amended charge, filed shortly before the hearing, the General Counsel's
representative moved, at the outset of the case, to amend the complaint, alleging
that the Respondent, through its officers, supervisors, and agents, (1) had threatened
its employees and representatives of the Union with physical violence and arrest
unless they ceased distribution of union literature on the public highway adjacent
to the Respondent's plant, and (2) had engaged in surveillance of certain meetings
called by the Union. The motion to amend the complaint was granted-over the
Respondent's objection-and upon application, its original answer was permitted to
stand to the complaint as altered.
At the conclusion of the General Counsel's presentation, a motion to dismiss the
complaint, insofar as it put in issue the allegedly discriminatory discharge of Thomas
Crew, was offered on behalf of the Respondent. The motion was granted.i
At the conclusion of the testimony the parties were advised of their right to argue
orally upon the record and to file briefs and proposed findings and conclusions.
The parties waived oral argument, but a brief on behalf of the Respondent has been
received.
Upon the entire record in the case, and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent functions as a division of the Chickasha Cotton Oil Company,
a Delaware corporation, which operates cotton oil mills in several States of the
United States, Arizona included. It-the Respondent Employer-maintains its
principal place of business, however, at Casa Grande, Arizona, where it is now en-
gaged, and at all material times has been engaged, in the business of processing cotton
seeds into oil. In 1953 the Respondent shipped goods valued in excess of $25,000
directly to points outside the State of Arizona.
The Respondent admits, and I find, that it is engaged in commerce within the
meaning of the Act, as amended. In accordance with the Board's established
policy-see Stanislaus Implement and Hardware Company, Limited, 91 NLRB 618;
The Borden Company, Southern Division, 91 NLRB 628-and on the basis of the
available evidence, I find that assertion of the Board's jurisdiction in this case is
warranted and necessary to effectuate the objectives of the statute.
'Consistently with this disposition of the matter, the available evidence with respect
to Crew's discharge will not be detailed or analyzed in this report, except insofar as it may
affect the disposition to be made of the issues yet unresolved in the case.
1838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The United Packinghouse Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act, as amended, which admits employees of the
Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The operation of the mill
1. The productive process
The Respondent's mill in Casa Grande, with which this report is immediately
concerned, was constructed in 1953. By November it had been substantially com-
pleted; productive operations began, I find, on the 17th of that month. Some of
the workers originally employed, while the mill was under construction, remained
with the Respondent as production workers. And at the time of the events with
which we are concerned there were approximately 45 workers in the firm's employ,
assigned to 3 shifts, and each 8 hours in length. Most of them appear to have been
without previous experience in cotton oil mills. The shifts ran from midnight to
8 a. m., 8 a. in. to 4 p. in., and 4 p. in. to midnight. The record gives no clue as to,
the number of workers on each shift at any relevant time-but a definitive finding in
this respect would not appear to be material. I have attempted none.
In the operation of the plant, cotton seed, I find, is initially received in bulk and
stored. Its period of storage, however does not appear to be very lengthy, under
normal conditions; there is testimony that it remains in storage no longer than 1 or
2 days, usually. Upon removal from storage, it is subjected to several operations
calculated to remove any excess cotton lint and to remove the seed hulls. These
operations, I find, prepare the seed for further processing, calculated to remove any
oil.
After preparation, the seed is transported-apparently by a continuous feed line-
to a "cooker" in which it is cooked for more than an hour, under steam pressure.
The cooker, the record shows, is divided into five sections, through each of which
the seed must pass prior to the next operation. Upon expulsion from the lowest sec-
tion, the seed is carried, by continuous flow, to a press designated in the record as
an expeller. The press receives the seed at the top of a large, vertical "worm shaft"
within which it is propelled by a "screw" into the body of the machine, upon mechani-
cal principles, apparently, roughly analogous to those utilized in a household meat
grinder. Within the expeller, then, the seed is subjected to pressure, calculated to
extract any oil it contains; the remaining vegetable matter, now designated as "meal
cake," is expelled from the machine, in its turn, for grinding, bagging, and use as
livestock feed.
The oil extracted as a result of this operation is carried, I find, to a "filter" press,
within which it is strained through a cloth to remove "waste" meal, residual seeds,
and foreign matter. At periodic intervals, at least twice a day, the filter press is
cleaned and any seeds caught by the cloth used to strain the oil are reprocessed in
the cooker and expeller previously described. The further disposition of the meal
cake and the oil-after the passage of the latter through the filter press-is not de-
scribed in the record. It would seem to be clear, however, that the Respondent's
pressroom, in which its cookers' and expellers are located, represents the heart of its
productive operations, and that the meal cake and the oil constitute the end prod-
ucts of the Respondent's mill activity. I so find.
2. The equipment
The record does not reveal, clearly, the number of cookers in the Respondent's
pressroom. Various references to the machine in the singular would suggest that
only 1 is utilized; other references in the record indicate that there were 2 machines.
There is testimony, however, that the Respondent operates four expellers. It is so
found.
Insofar as the filter press is concerned, references to it in the singular would sug-
gest. once more, that only one is to be found in the pressroom. A definitive finding
in this connection, however, would not appear to be material.
3. The staff .
At the outset of the events with which we are now concerned, general supervision
over the Respondent's Casa Grande operation was exercised by Joe Briscoe, the
CASA GRANDE COTTON OIL MILL 1839,
general manager of the Chickasha Cotton Oil Company's Arizona operations. Under
his direction, J. C. Richardson functioned as the Respondent's mill manager, in im-
mediate charge. Mill Superintendent Luther Leonard, directly in charge of pro-
duction, served under Richardson; he exercised immediate authority, I find, on the
second shift-the day shift-and commanded the assistance of two shift superintend-
ents on the first and third shifts respectively.2
Since this case, at its inception, directly involved the workers in the Respondent's
pressroom only, our attention must be turned, now, to the pressroom staff. On each
of the Respondent's three shifts, the most important pressroom employee appears
to have been the meal cook responsible, I find, for the proper operation of all the
machinery in the room-the cooker, the expeller, and the filter press, respectively.3
At the time of the events with which we are immediately concerned, an employee
named Fowler was the meal cook on the first, or "graveyard" shift, James Little
served as the meal cook on the day shift, and Thomas Crew held a similar position
on the third, or "swing"shift. Each was assisted, at the outset of the firm's produc-
tive activity, by 3 or 4 helpers.4 In December 1953, the helpers of James Little on
the day shift included Eligha Haggin, T. P. Taylor, and Sherman Ballard, one of
the alleged discriminatees in this case. Ballard had been hired on November 10,
1953, before production started. After the 17th of the month he served as a "filter
press operator" and general pressroom helper, as noted.
In addition to its regularly assigned meal cooks and helpers, the Respondent also
employed a relief man, or men. Only one, Delbert McCowan, has been designated,
however, in the present record. The evidence establishes that he served as a relief-
meal cook on each of the Respondent's 3 shifts, once on each shift during the week,
and that on each of the 3 other working days he relieved a helper on 1 of the several
shifts. McCowan had been hired early in November, prior to the start of productive
operations; he appears to have assumed his duties as a relief meal cook and helper
when production began.
4. Production schedules and pay periods
The Respondent, insofar as the record shows, maintains a 7-day schedule of pro-
duction; its only shutdown within the period with which we are immediately con-
cerned appears to have been on Christmas Day. Its employees are paid every Friday
afternoon, at the conclusion of the day shift, at which time they receive pay for all
the work performed during the week up to that point. In practical effect, this means.
that the workers on the third "swing" shift are paid for a workweek beginning on the
preceding Friday afternoon and running through their Thursday shift. With this.
exception-not material here-Friday may be described as the last day of the
Respondent's pay period, under normal circumstances. I so find.
2 Only one of these, Shift Superintendent Johnson on the third shift, played any sig-
nificant part in the events with which this case is concerned Since his function, however,
appears to have been nothing more than that of an intermediary in connection with the
dismissal of Thomas Crew, his role need not be a subject of further discussion
3 There is some indication in the present record that meal cooks may have exercised and
now exercise supervisory authority, in that they are apparently held responsible by their
respective shift superintendents for the efficient performance of all the work done in the
pressroom on their shift-and particularly for the work of their helpers. Upon occasion,-
also, they may have been expected to make effective recommendations with respect to
helper layoffs. The complaint and the answer, however, raise no issue with respect to
their supervisory status, and the question, certainly, was not litigated. I have found it
unnecessary, therefore, to pass upon it, and will assume, for the purpose of this report,
that meal cooks are at best nothing more than responsible, trusted, pressroom employees.
4 The undisputed testimony of Mill Manager Richardson, and others, establishes that
3 or 4 helpers per shift were used in the pressroom at the outset of operations, primarily
because of the fact that the Company was then in the midst of a "shakedown" period, in;
which its productive process was being subjected to experimentation, and in which its
machinery was being subjected to frequent adjustment There is testimony in the record
also, undenied, that the manning tables of the Chickasha Cotton Oil Company, at its Okla-
homa plants, called for the employment of 1 helper for each 2 expellers in operation, so
that a pressroom utilizing 4 expellers would normally require 2 helpers. And Little testi-
fied that he had been told at the outset of productive operations-by the mill superintend-
ent-that he would finally have only two helpers on his shift. None of the evidence in;
the record suggests a reason to doubt this testimony. I find it credible.
1840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharges
1. The evidence
a. Organizational activity
On the evening of December 29, 1953 , Ballard received a supply of blank union
authorization cards from Floyd Harris, the organization's field representative. The
record shows he received them in Casa Grande, at his cabin or room. Delbert
McCowan, who shared the room, does not appear to have been present. Later that
evening, upon McCowan 's return , Ballard gave him an authorization card to sign,
I find, and discussed the matter of unionization with him. McCowan, as the record
shows, had been a union member at the Phoenix plant of his previous employer.
Shortly after receiving the card, he signed it in blank, and returned it to Ballard.5
Ballard distributed the balance of the cards for signature to his fellow employees
on the 29th, 30th, and 31st of the month. On the basis of his testimony, it would
appear that all of the cards were distributed "downtown" in Casa Grande, at Ballard's
room, or at the homes of his fellow employees. I so find. Ballard testified cate-
gorically, with substantial corroboration in the record, that he had never engaged in
any organizational activity on company property, that he had never even talked to
his fellow employees about the Union on company property, and that he had never
seen or heard anyone else discuss the Union or engage in organizational activity at
the Respondent's plant.
Crew, also, testified that there had been no open union activity at the plant, that
no employee associated with management had ever discussed union matters with
him, that no union buttons or any other evidence of unionization had been exhibited
by the employees at the plant, and that they had not discussed the Union on the
job or during any recess in the course of the working day. McCowan, too, testified
that nobody had said anything to him about a union while he was at work, that
he had never discussed the organization at the plant or attempted to get other
employees to join, and that nobody had spoken of the organization on the job.
Except for this generalized testimony, the record contains only two references
to Ballard's activity on the Union's behalf. Sometime after Christmas, according
to the testimony of Eligha Haggin, Ballard approached him while he was on his
way home after work and spoke about the Union; the record does not indicate,
however, that Haggin displayed any interest or that he signed a union authorization
card. And Ballard's testimony, which stands without contradiction, establishes that
he gave Meal Cook Fowler three authorization cards sometime shortly after he
received them but that he never got them back. Ballard testified, credibly, that he
had asked about the cards on January 4 and had been told by Fowler that they
had been lost; Fowler, according to Ballard, said that if he could not locate them
he would come back for more. Ballard, I find, offered to let him sign an authoriza-
tion card then and there-but Fowler said that he would wait.
Ballard's testimony establishes that he was the only employee engaged in the
.distribution of the union authorization cards. As a witness, he admitted that he
had been unable to achieve a complete distribution, since he had failed to see some
of the employees. His testimony indicates, however, that approximately 30 of the
authorization cards were executed in his presence and returned. I so find.
b. The summons
On January 2, Ballard worked his last shift for the Respondent as a pressroom
helper, and McCowan performed his last services as a relief meal cook or helper.
The two men, it would appear, were in Phoenix, however, on the 3d; the record
establishes that they returned on the morning of January 4, a Monday.6 Upon their
arrival at the plant, Ballard and McCowan were accosted by Little, who told them
to report to Superintendent Leonard at once, before changing into their work clothes.
5 As a witness, McCowan initially denied that he had signed any union authorization
card He also denied participation in any conversation about the Union while in the Re-
spondent's employ. His memory, however, was subsequently refreshed ; he was shown
an authorization card purporting to bear his signature, and acknowledged it. The card
was dated January 2, 1954, but the record will warrant an inference that this date was
inscribed by someone else, some time after McCowan had signed it in blank. I so find.
U Ballard, of course, was regularly assigned to the 8 a. in . to 4 p. in. shift ; McCowan's
relief assignments, apparently, called for him to relieve Meal Cook Little on the 4th.
I so find.
CASA GRANDE COTTON OIL MILL 1841
The record reveals a sharp dispute as to the precise nature of Little's message,
and the general course of the conversation in which it was delivered. Ballard's
testimony, in direct examination, with respect to the incident reads as follows:
McCowen and myself had been to Phoenix and reported back to work
at 7: 30. That is when we all come down there and change and be on the
job at 8: 00 o'clock. While changing clothes, we had our clothes off and
Jim Little came in and he asked me have you seen Luther and I said no. And
he said he just got here and he told me to tell you all before you change
clothes to come in and see him and Jim Little said that Luther said that and
so I said, "Why, what's the matter?" And he said, "Well, we heard you was
passing union cards around. We ain't going to have no union on this job."
I said, "Oh, I was a union man when you hired me," I said, "I will go see him
when I [go] to the press room."
McCowan's testimony with respect to the incident substantially corroborates that
of Ballard. At some points, in direct and cross-examination, it suggests that Little's
alleged reference to the "union cards" purported to be nothing more than a quota-
tion of the antecedent remarks of Superintendent Leonard; at other points, Mc-
Cowan's testimony and that of Ballard would seem to suggest that Little had
referred to the "union cards" as a matter with respect to which he had personal
knowledge and a personal preference. I find it unnecessary, however, to reach a
determination-at this point-as to whether the uncertainties of Ballard and
McCowan, with respect to the proper interpretation to be given Little's alleged
remarks, affect the significance of their testimony, or its credibility.
Little testified that he had been accosted by Superintendent Leonard, on his way
to the change room, when he came to work on the morning of the 4th; his version
of the instruction he received, at that time, reads as follows:
I came to work that morning and was going out to change clothes and
he told me when I see the helpers to tell them to come up to see him.
And Little's testimony, if accepted, would indicate that he proceeded to the change
room, where he found McCowan and Ballard; according to his version of the incident:
I was in there, came in and said Mr. Leonard said before changing clothes
to go up and see him. I said Mr. Leonard said before you change clothes,
better come up to see him.
Little insisted, in direct and cross-examination, that this-in substance-was all he
said. He denied, unequivocally, making any observation that Superintendent
Leonard wished to see the men about "union cards" and denied that he had given
expression to any personal preference with respect to the unionization of the plant.
Leonard's testimony is that he told Little to tell Ballard and McCowan to "come
in" since he was going to lay Ballard off to reduce the payroll; the superintendent,
too, denied any reference to the Union in his conversation with the meal cook.
The conflict in the evidence, thus revealed, between the testimony of Ballard and
McCowan on the one hand and that of Leonard and Little on the other, and my
conclusions with respect to it, will be discussed in detail elsewhere in this report.
c. The discharges
The available evidence with respect to the actual dismissal of Ballard and Mc-
Cowan is also sharply in conflict. Ballard testified that he and McCowan met
Leonard in the pressroom, and that the superintendent requested them to come to
his office, which they did. There is some uncertainty, which I consider immaterial,
as to how the conversation began. McCowan's testimony with respect to the super-
intendent's remarks, in substance, reads as follows:
Sherman asked him what's wrong. He just smiled, he said you know I ain't
going to have no union and he said you boys is bringing union cards from
Phoenix down here and I ain't going to have no union down here and then he
gave Sherman his check.
Ballard's testimony with respect to the superintendent's opening remarks substan-
tially corroborates that of McCowan. - Ballard, however, also testified that he had
informed Leonard of the fact that he had been a union man when hired-to which
the superintendent had allegedly replied that he could not help it, and that Ballard
would not be allowed to work any longer.
At this point, in my personal notes, there is an indication of testimony by Ballard,
purportedly quoting Leonard with respect to the allegedly unsatisfactory character
338207-55-vol. 110-117
1842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his (Ballard's) work. No such testimony appears in the transcript. The record
with respect to Ballard's testimony, however, does reveal a reference by Ballard
which can only be said to possess the quality of intelligibility if construed as a re-
sponse to some purported remark of Superintendent Leonard with respect to the
quality of Ballard's work. According to his testimony, Ballard said:
Well, it's a funny thing, you just now wait to find out and tell me about my
work is dissatisfactory, should have told me a long time ago.
Upon the entire record, I have concluded that Ballard's version of the discussion
in Superintendent Leonard's office included, at the very least, a passing reference to
a discussion with respect to the quality of his work. According to Ballard, Leonard
refused to argue about the matter, and repeated the statement that he was being
discharged. The dischargee's testimony is that he was given his final check at once,
for the services performed by him on the Saturday shift subsequent to the last full
week of his employment. Ballard's final testimony on the subject reads as follows:
After I got my check, after he gave me my check, he said here's your check,
I don't want you on the job no more. So I told him 0. K. and he said, "We
are not going to have no union. You boys running from Phoenix trying to
get a union . We are not going to have no union , that is final." That is what
he was saying when I walked out the door.
McCowan testified that he remained in Superintendent Leonard's office. When
asked, in direct examination, if he was then addressed by Leonard, McCowan testi-
fied as follows:
Yes, he told me he said I hate to shed of you, I have been knowing you so
long. You've been running back to Phoenix bringing union cards and I ain't
going to have that down here.
At this point, apparently, McCowan received his timecard, but not a check. His
subsequent actions, to whatever extent they may be material, will be noted elsewhere
in this report.
Luther Leonard, as a witness for the Respondent, denied any reference to the
Union, its authorization cards, or any employee activity on its behalf in the course
of his remarks on the occasion in question. His testimony, in direct examination,
with respect to the incident reads as follows:
Q. Would you repeat the conversation that you had, identify what you said
and to whom you said, and what either one of them said if they said anything,
tell what happened?
A. I don't recall which one I talked to first but I told Ballard that I was
going to have to lay him off because I had too many in the press room.
Q. What did Mr. Ballard say?
A. I don't recall that he had any answer for me.
Q. And what happened then, 'did Mr. Ballard stay while you talked to Mr.
McCowen?
A. I don't recall whether he did or not.
Q. Did you then talk to Mr. McCowen?
A. Yes, sir.
Q. What did you say to him?
A. I told him that he was a good pan shover but he wasn't a meal cook .
I don't recall just what, if anything else was said or not. I told him I was going
to have to lay him off.
Superintendent Leonard's testimony with respect to the discharge interview, thus,
poses a sharp conflict with respect to the nature and extent of his remarks. Reserv-
ing discussion and analysis , for the moment , with respect to this conflict , we must note,
in summation, the available evidence with respect to subsequent developments.
d. Subsequent developments
Shortly after his discharge by Superintendent Leonard, McCowan went to see
Mill Manager Richardson. His testimony indicates that he started to "kick" about
his dismissal, and that he informed the mill manager that he had not brought any
union authorization cards to the plant.? In direct examination, McCowan testi-
7 McCowan, it will be remembered, had received nothing more than a statement of his
"time" from Superintendent Leonard for the work done by him on the preceding Friday
and Saturday nights. It would appear , then, that he was seeking his final check from
Mill Manager Richardson.
CASA GRANDE COTTON OIL MILL 1843
fled that Richardson reacted with an exclamation, "What card?" when confronted
with the protestation noted. In cross-examination McCowan attributed a further
remark to the mill manager, to the effect that he knew nothing about the Union.
McCowan admitted that Richardson had given no indication of knowledge as to the
reason for his discharge , and, specifically , that he had given no indication of knowl-
edge that the discharge had been bottomed upon the dischargee 's alleged possession
of a union card.
The testimony thus offered by McCowan is substantially corroborated in that of
Richardson. According to the latter, McCowan asked about his discharge, and in-
sisted, specifically, upon his desire to know if it had been effectuated because he had
signed a union card . Richardson 's testimony with respect to the incident reads as
follows:
Mr. McCowen's check had not been made out. He brought the timecard to
the office. I made the check out and I signed it. While he was in my office
he wanted to know why he was being discharged and I told him that I did not
know that I hadn't talked to Mr. Leonard, I didn't even know that he was being
discharged . He said that he wanted to know if it was because he had signed
the union card. I said I didn't known anything about a union card, didn't know
that there was any union cards out there . . . I checked immediately to see
what the situation was and Mr. Leonard told me he didn't know anything about
union cards.
The testimony of James Little indicates that he saw Ballard and McCowan shortly
after their conversation with Superintendent Leonard, and that he had a talk with
Ballard in McCowan 's presence . His testimony with respect to Ballard's remarks
reads as follows:
He told me, he said to me they was kicking on his work. He said, Mr. Ballard
told me that Mr. Leonard said he was not satisfied with the work he was doing,
that, in fact , he wasn 't satisfied with it . In other words , Mr. Ballard told
me he said the other boys was better handed [than] he was.
Little insisted that Ballard had made no allegation that his discharge was due to
his circulation of the union cards, and that he had not discussed or mentioned the
Union in any respect in describing his meeting with the superintendent. And in
McCowan's presence , Little testified , Ballard discussed the situation of his fellow
dischargee as follows:
If I remember right, Mr. Ballard said Mr. Leonard wanted McCowen to work
in Tom 's place . He had to take the night meal cook's place. He refused to take
it.
Neither Ballard nor McCowan were examined with respect to the conversation thus
reported by Little; his testimony with respect to it, therefore , stands without contra-
diction in the record.
2. Analysis and conclusions
a. The issues
In the indicated posture of the record, the issues presented for determination are
both simple and clear cut. The Respondent's counsel , in his brief, has outlined them,
succinctly, as follows:
There is no room for argument .. . that [the ] General Counsel has the bur-
den of proving by substantial evidence in the record considered as a whole that:
(1) the employees discriminated against were members of the Union and en-
gaged in concerted activities ; ( 2) that the employer had knowledge of such facts;
(3) that the employees were discharged; and (4 ) that the employer discharged
the employees because of their union membership and concerted activities. As
a result of the testimony offered at the trial, Respondent does not now dispute
that Ballard and McCowen were members of the Union , that they engaged in
certain concerted activities for a few days prior to their discharge at times other
than when they were performing work for the Respondent and away from
Company property , and that they were discharged . Respondent , however, takes
the unequivocal position that it had no knowledge that Ballard and McCowen
were members of the Union and that they engaged in certain concerted activities.
Without such knowledge , Ballard and McCowen, of course, could not have been
discharged because of such membership and because of such activities.
With respected to the concerted activities of Ballard and McCowan, indeed, the
record would seem to be entirely clear . Ballard, as the evidence shows, was irnme-
1844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diately responsible for the inception of the Union's organizational attempt on De-
cember 29. It is established that he distributed the union authorization cards made
available to him by Business Representative Harris, and that he collected these cards
for transmittal to the Union after they were signed. McCowan, although not active
in the distribution and collection of any authorization cards, would appear to have
signed one at the time. The available evidence, thus briefly outlined, would seem
to be more than sufficient to justify a conclusion that Ballard and McCowan were
engaged in assistance to a labor organization and concerted activity for the purpose
of collective bargaining and other mutual aid or protection. I so find.
The state of the Respondent's knowledge with respect to their activities, however,
is by no means clear . The General Counsel 's case, essentially , refers only to the
statements of Little and Superintendent Leonard , in connection with the discharges
of Ballard and McCowan , as the evidence from which an inference may be drawn in
regard to the Respondent 's knowledge of their union activity. Independent evidence
of such knowledge, or of any other statement or course of conduct from which the
existence of such knowledge might properly be inferred , is not to be found in the
present record.
The witnesses offered by the General Counsel-Ballard, McCowan, and Crew-
conceded, as previously noted, the absence of any open union activity at the plant,
and the absence of any discussion among the employees , during their rest periods or
at work, with respect to Ballard's organizational campaign. And upon the entire
record , it would also seem to be clear that no one associated with the management of
the firm ever discussed the Union with any employee or employees, openly, between
December 29 and the day on which Ballard and McCowan were discharged .8
On behalf of the Respondent , General Manager Briscoe testified that prior to the
receipt of the unfair labor practice charges subsequently filed by the Union he had
not discussed the Union with any person directly or indirectly, by inference or sug-
gestion , and that he had had no knowledge of any organizational activity at the plant.
Mill Manager Richardson testified that his first knowledge with respect to the Union
was derived from the notice received by the Respondent with respect to the unfair
labor practice charges, and that prior to January 4, at which time he spoke to Mc-
Cowan, he had not "discussed" the Union's organizational activity with anyone.
Superintendent Leonard testified that he had had no knowledge of Ballard's distri-
bution of the Union's authorization cards, that no one had ever told him that Ballard
and McCowan were members of the Union, that he had had no knowledge-specific
or general, direct or indirect-of their interest in the Union at the time of the dis-
charges, and that his knowledge in this connection dated, as did that of Richardson,
from the receipt of the Respondent 's notice with respect to the unfair labor practice
charges. James Little testified that he had heard nothing of any union activity
among the employees prior to January 4, from any source, and that his awareness
of the Union's organizational campaign dated from the day of his interview with
a Board agent , to whom he gave a statement in connection with the alleged unfair
labor practices. Testimony of substantially similar import was given by Eligha
Haggin, Little's helper and Sherman Ballard's fellow employee.
Despite the testimony of the General Counsel 's witnesses that no overt union ac-
tivity took place at the Respondent's plant during working hours, and despite the
denials of knowledge advanced by the Respondent's management representatives and
some of its employees, it should be noted-in justice to the record-that the avail-
able evidence, even if considered without reference to the testimony of Ballard and
McCowan as to their discharge, would not foreclose a conclusion that the Respond-
ent's management representatives could have been aware of Ballard 's organizational
activity. The dischargee's testimony indicates that he had approached at least one
employee, Fowler , who evidenced reluctance to sign a union authorization card, and
who could have reported Ballard's overtures to a superior. And the record will cer-
tainly warrant a finding that Haggin, apparently an employee friendly with Meal
Cook Little, could have spoken of Ballard's contact with him.
In this posture of the record, the only evidence substantial enough to support a
finding that the Respondent, through its management representatives , was actually
aware of the Union 's organizational campaign , and that Ballard and McCowan were
dismissed because of the part they played in it , is to be found in the testimony of the
8 As a witness , Crew admitted that he had had no "knowledge " with respect to whether
any representatives of management were aware of the union activity among the Respond-
ent's employees, at the time of the January 4 discharges ; his testimony shows that his
conclusions , at the time , with respect to their awareness of the situation were based upon
his "guess" or "opinion" only.
CASA GRANDE COTTON OIL MILL 1845
dischargees themselves, with respect to the circumstances immediately surrounding
their discharge. If that testimony can be credited, the General Counsel' s contention
with respect to the discharges must be considered established. As the Respondent's
counsel put it in his brief:
This is the evidence [in] the case. Without the Ballard and McCowen testi-
mony as set out above, there wouldn't have been [a] case. . It is just
enough evidence, if believed, to get before the Trial Examiner. There are no
embellishments-there is nothing in addition to it. At the time of the dis-
charges and for the first time, the Company flatly tells them they have to go
because they were bringing union cards from Phoenix.
The Respondent, of course, disputes the credibility of the testimony in issue, con-
tending that it does not "ring true" in the light of the record considered as a whole.
To this issue of credibility, then, our attention must now be turned.
b. Analysis
Any determination by a trier of fact, with respect to a credibility issue, must nec-
essarily rest upon his evaluation of several factors in the case presented for decision.
Among these may be listed: (1) The demeanor and conduct of the witnesses; (2)
the testimonial and documentary evidence, if any, directly relevant to an assessment
of their reliability-such as their capacity for accurate perception, recollection, and
communication; the means of observation open to them; their opportunity and in-
centives for perceiving the matters involved in their testimony; the likelihood of
their recollection with respect to the matters perceived; their motivation for testify-
ing; their interest, prejudice, and bias, if any; the extent of their subjection to any
influences which could affect their testimony; their character with respect to veracity;
and their prior conduct or statements, either consistent or inconsistent with the
testimony they have given; (3) the objective facts revealed by the record which-
considered in their context-tend to corroborate or contradict the testimony given;
(4) the nature and extent of any contradictory testimony; (5) the degree of inter-
nal consistency or inconsistency, if any, to be noted in the specific testimony being
evaluated-and the consistency of the record, taken as a whole, with one disputed
version of the matter at issue or the other; (6) the consistency of one disputed version,
or the other, with the logic of events, the inherent probabilities, and normal human
behavior in an industrial or business situation; and (7) the inferences to be drawn
from the testimony of particular witnesses, and from the whole record, with respect
to the "likelihood" of one disputed version as to the course of events, or the other.
This enumeration, of course, should not be taken to suggest that each of the sug-
gested factors which may be relied upon, in any record, to resolve a credibility
issue may be relied upon with equal confidence, or that each factor affecting the
resolution of such an issue, in a particular case, would be entitled to equal weight.
It would be a truism, of course, to say, rather, that each case presents its own
problem, and that it should, therefore, be handled in the light of its own peculiar
circumstances.
Insofar as the so-called "demeanor evidence" in this case is concerned certain as-
pects of the situation are worthy of note. In many cases, demeanor evidence pro-
vides an excellent clue to the trustworthiness of testimony. N. L. R. B. v. Dinion
Coil Co., Inc., 201 F. 2d 484 (C. A. 2). The courts and the Board have held that
its reliability, substantiality, and probative character are in no way affected by the
failure of a trier of fact to describe with particularity those aspects of demeanor which
have persuaded him to find a particular witness credible or incredible, as the case
may be. N. L. R. B. v. James Thompson d Co., Inc., 208 F. 2d 743 (C. A. 2);
N. L. R. B. V. Dinion Coil Co., Inc., supra; Standard Dry Wall Products, Inc. v.
N. L. R. B., 188 F. 2d 362 (C. A. 3) , enfg. 91 NLRB 544; Roadway Express, Inc.,
108 NLRB 874. As the Board declared in the last-named case:
we recognize that credibility findings may rest entirely upon evidence
through observation which words do not, and could not, either preserve or
describe... .
And in the Standard Dry Wall Products case, previously noted, the Board's decision
makes it entirely clear that it will not, even in such cases, overrule a Trial Examiner's
credibility resolution except where a clear preponderance of all the relevant record
evidence convinces it that the resolution is incorrect.
The conclusion suggested by these decisions however, that a trier of fact is free,
in practice, to exercise "immense discretion" in reaching credibility determinations
1846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the basis of demeanor, ought not to make such determinations, in good con-
science, any easier to reach. And, specifically, the fact that a judicial or quasijudicial
"hunch" bottomed upon the demeanor of a witness may be articulated and relied
upon with knowledge that appellate correction will be rare certainly should not dis-
pose any trier of fact to an easy reliance upon uncritical reactions or "absurd rules-
of-thumb" in connection with credibility determinations. If determinations of credi-
bility cannot be made honestly and with confidence, on the basis of convincing de-
meanor evidence, such evidence, in my opinion, should not be utilized in reaching
them.
These considerations have been determinative of my reactions in the instant mat-
ter. Without going into elaborate detail, I find myself constrained to say that my
observation of the witnesses, per se, has left me balanced in doubt as to whether
Ballard and McCowan on the one hand, or Little and Leonard on the other, are
more worthy of belief. Each of these witnesses testified with an air of directness
and apparent candor; in no significant instance did they appear to be evasive or
confused. While Ballard may have testified with more positive assurance, and while
Leonard may have conveyed an impression of diffidence and some internal tension,
these aspects of their conduct as witnesses in my opinion, provide an insufficient basis
for credibility resolutions bottomed upon demeanor, as such.
My determination of the basic credibility issue in this case, therefore, must neces-
sarily be grounded not upon "demeanor evidence" but upon the objective facts re-
vealed by the record, and the logical inferences to be drawn from the relevant testi-
mony of the witnesses arrayed in opposition.
Where, then, does the balance lie? Without a detailed analysis of the relevant
testimony the record, in my opinion, may be summarized as follows:
(1) Record support for the General Counsel's contention
(a) The fact that Ballard and McCowan were dismissed within a week of the day
on which the former received a supply of union authorization cards and undertook
their distribution. After 19 years, it may be taken as datum, in my opinion, on the
basis of decisions too numerous to cite, that the effectuation of a discharge very
shortly after the inception of organizational activity will strongly support an infer-
ence that the Employer's action was bottomed upon his knowledge of the activity,
and a desire or intent to discourage it.
(b) The fact that Ballard and McCowan, and Crew as well, were dismissed in
the middle of a pay period, at the outset of the third working day after their regular
payday. If the motivations of Superintendent Leonard in effectuating the discharges
were, in fact, unrelated to the union activity of the dischargees, their dismissal cer-
tainly could have been most easily and appropriately effected on the Respondent's
regular payday. Such a procedure is, certainly, most usual in industry.9 And the
Board has, in numerous cases, justified a conclusion that the discharges were dis-
criminatorily motivated by reliance, at least in part, on the fact that they occurred
at some time other than the end of a regular pay period.
(c) The fact that Meal Cook Little, although scheduled for relief by McCowan
on the day shift on Monday, January 4, was nevertheless at the plant ready to work.
The fact certainly could, in its total context, suggest an inference that Little had
been specifically requested to report for duty, and a further inference, contrary to
his testimony, that the occasion for such a request had been explained to him.
(d) The testimony of McCowan that his work as a relief meal cook between mid-
November and the end of the year, for the Respondent, had never been criticized by
his superiors and that he had never been admonished or criticized for the way in
which he performed his duties. This testimony, if credited, wouid of course tend
to support a conclusion, contrary to the Respondent's contention, that he had been
dismissed for some reason other than personal incompetence or dereliction of duty.
(e) The testimony of Ballard, as corroborated by that of T. P. Taylor, that he
had never been admonished by Meal Cook Little or Superintendent Leonard with
respect to an asserted lack of diligence in the performance of his duties. The dis-
chargee testified, in fact, that Leonard had complimented him on his work on two
occasions, just before Christmas and during the Christmas week. As in the case of
McCowan, this testimony, if credited, would tend to support a conclusion that Bal-
9 The issuance of a "pink slip" with a paycheck, when discharges or layoffs are made
for business reasons, unconnected with personal delinquencies or misconduct, is of course
a phenomenon too common to require elaboration or justification
CASA GRANDE COTTON OIL MILL 1847
lard had been selected for layoff, under cover of a nondiscriminatory program of staff
reduction, for some reason other than his allegedly unsatisfactory work.
(f) The inference to be drawn, from the record as a whole, with respect to the
"likelihood" that Leonard made the remarks attributed to him. Upon substantially
undisputed evidence in the record, the superintendent stands revealed as the sort of
man who could, and did, twit and rally a loyal employee of long standing, Little, for
"cheating" and being "crooked" in his work-albeit, allegedly, in a spirit of mild
raillery and on the basis of friendly familiarity.
The General Counsel, who first elicited the testimony that Leonard had so de-
scribed Little, then sought to establish, by further testimony, that Little had in fact
"cheated" with regard to his work, in certain respects, and that the superintendent
had been aware of it. If credited, this testimony-presumably-would have been
urged as justification for an inference that Little deserved discharge more than
McCowan, and that the superintendent must have known it. Upon the entire
record, however, I have been unable to conclude that Little "cheated" the Respond-
ent, in fact, or even that his superiors harbored such a thought. His undenied testi-
mony shows that he has been a company employee for 35-40 years and a meal cook
for 25 years; it also establishes that he was transferred to Casa Grande by the Re-
spondent's parent company. Even if he had "cheated," however, and thus merited
discharge, the available evidence in that connection could not be characterized as
evidence of probative value, in my opinion, tending to establish that McCowan's
dismissal was discriminatorily, rather than legitimately, motivated. The admis-
sions of Leonard with respect to the remarks attributed to him, therefore, have not
been relied upon, in this report, to cast doubt upon the motivation asserted by him
for McCowan's discharge; they have, rather, been cited for the light they cast upon
his character and competence as a supervisor.
It also appears, upon undisputed evidence, that Leonard visited the vicinity of a
union meeting place on two occasions, at the time of announced union meetings, in
disregard of explicit orders from his superiors-grounded in legal advice-and
allegedly because of "family" considerations deserving characterization as considera-
tions of doubtful validity. The record in this connection, to be detailed elsewhere
in this report, certainly suggests that Superintendent Leonard may be a man of
particularly poor judgment in personnel matters, who could very well have said,
without considering the significance of his words, that Ballard and McCowan were
being discharged for their union activity, if such in fact were the case.
The Respondent's counsel , in his brief, suggests that the attribution of the dis-
puted remarks to Leonard presupposes him to have been as uninhibited with respect
to his antiunion attitudes as many management representatives apparently were in
1933, prior to the passage of the National Industrial Recovery Act and the original
National Labor Relations Act. Inferentially, Respondent's counsel would appear
to be suggesting that no responsible supervisor, in this day and age, would be so
blatant in giving expression to his antiunion bias, and that the testimony of Ballard
and McCowan should therefore be rejected. On the basis of Leonard's self-revela-
tory testimony, however, I would not consider the challenged supposition farfetched.
At one point, in the course of an argument on the Respondent's motion to dis-
miss the complaint, with respect to Crew's discharge, the General Counsel referred
to certain testimony by the dischargee, in regard to a conversation he allegedly had
had with Leonard on January 11. It was argued that the remarks attributed to the
superintendent, in the course of the alleged conversation, revealed his awareness
of the fact that antecedent knowledge of the authorization card distribution was
being attributed to him-and I was urged to infer the existence of such crucial
antecedent knowledge from Leonard's alleged failure to disavow it in his conversa-
tion with the discharged meal cook. Since my disposition of the Respondent's mo-
tion with respect to Crew, however, made it unnecessary for the superintendent to
testify with respect to any January 11 conversation with him, the record will not
permit factual findings with respect to their talk, or any inference with respect to its
significance.
(2) Record factors detracting from the weight of the General Counsel's case
(a) The fact that the Respondent was actually engaged, at the time of the dis-
charges, in a staff reduction program. Although its complete personnel records
have not been made available, the record does reveal certain information with
respect to the individuals terminated by the Respondent subsequent.to the pay period,
ending on November 20, 1953, in which its productive operations began. The figures
show that 42 persons were separated from the Respondent's employ between Novem-
1848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 17 and January 4, 1954.10 Of the number separated after production began,
11 had been hired prior to November 6, 1953; 12 in the 2-week period from No-
vember 7 to 20, 1953; 11 in the succeeding week (the Respondent's first full week
of production; and only 8 between November 28 and January 1, 1954. With respect
to the total number separated, an analysis of the Respondent's records reveals the
following information:
Terminations
Pay Period Ending Number Pay Period Ending Number
11-20-53------------------- 1 12-18-53------------------- 8
11-27-53------------------- 5 12-25-53------------------- 10
12-4-53-------------------- 8 1-1-54--------------------- 1
12-11-53------------------- 4 1-8-54--------------------- 5
Of the employees thus terminated, eight had been employed in the pressroom.
Two, Crew and McCowan, were operators or meal cooks; four, including Ballard,
were helpers. One had been employed in construction work, and the job classifica-
tion of the remaining employee is unknown." Three of the eight employees now
under consideration last worked in the pay period ending on November 27; 2 in the
period ending on December 11; and 3-Crew, McCowan, and Ballard-in the period
ending on January 8. Two employees-in addition to Crew, McCowan, and Bal-
lard-are shown to have performed their last services for the Respondent on a
day in the middle of their final pay periods. The record is silent, however, as to
whether they then resigned or were discharged.
No employees have been hired to replace any of the pressroom employees termi-
nated. Crew and McCowan were replaced by employees already on the payroll.
This data, of course, would certainly warrant an inference that the Respondent was
engaged in a staff reduction or "shakedown" program, calculated to reduce its
personnel to the minimum number required for efficient operation. And such a
testimonial inference might well warrant the further inference that separations oc-
curring within the period cited were effectuated to achieve nothing more than the
indicated legitimate business objective.
The fact that the Respondent's swing and graveyard shift superintendents laid
off their extra helpers before Superintendent Leonard dismissed Ballard cannot, in
my opinion, support any inference that the firm's layoff program was, in fact, com-
plete before Ballard's termination. Leonard testified that he kept an extra press-
room helper longer on the day shift just to have an extra man for "odd jobs" in the
mill; this testimony is not inherently incredible.
(b) The testimony of Superintendent Leonard that he was too busy to pay atten-
tion to the advent of payday, since he is not the Company's timekeeper, and that
his decision to dispense with the services of Ballard and, McCowan was reached
over a weekend, and in the middle of a pay period, because his day of rest gave him
the only free time he had in which to think about the effectuation of the Respondent's
layoff program. This testimony, if credited, would of course tend to detract from
the weight of any inference, favorable to the General Counsel, to be drawn from
the fact that Ballard and McCowan were dismissed in the middle of a pay period.
The testimony, though not inherently incredible, would seem to indicate a course
of conduct on Leonard's part at variance with that normally to be observed in indus-
trial society; if it stood in isolation, I would certainly give it little, if any, weight.
(c) The testimony of Leonard that Little's presence at the plant on Monday
morning had been requested, routinely, for business reasons. This testimony, if
credited, would of course destroy any basis for an inference that he (Little) was
privy to a prearrangement with respect to the Ballard-McCowan discharges.
(d) The testimony of Superintendent Leonard that McCowan had been admon-
ished, on at least one occasion, to keep his helpers busy, that he had been admonished
to see that the cookers were kept full, and that he had been criticized for the addition
10 Superintendent Leonard testified, without contradiction, that the Respondent had
required a large staff at the outset because the initiation of production involved "more
work and more problems" and thus required more help ; most of the help, he said were
inexperienced and had to be taught. After the operation of the plant became settled, ac-
cording to Leonard, staff reductions were possible. He insisted that the decision to reduce
the staff had been reached in discussions with Mill Manager Richardson and possibly
General Manager I3riscoe, shortly after the "middle" of November. The mill manager
corroborated this testimony.
11 Mill Manager Richardson, testifying in this connection, named only seven employees ;
I have included McCowan, omitted by Richardson, in my recapitulation.
CASA GRANDE COTTON OIL MILL 1849
of certain "weights" to the safety or "relief" door of an expeller, allegedly in order
to destroy its utility as a safety device and to permit the ingestion by the expeller of
improperly cooked cottonseed meal. The significance of this testimony, if credited,
in establishing the existence of a valid reason for McCowan's dismissal, without
regard to his union activity, is of course obvious. The superintendent testified that
any maladjustment of the "relief" door on the expeller would create a condition in
which the "meal" might keep pushing in and "build up" pressures which could "tear
up" the interior of the machine. McCowan testified that he had observed some
"weights" on the safety door, on one occasion, when reporting for duty. He denied
any knowledge of the employee responsible, and insisted that he had added no
"weights" to the door. He also denied participation in any conversation with Super-
intendent Leonard about the use of weights on the door in question.
(e) The testimony of Little that he had, on one occasion, admonished Ballard
with respect to the amount of time he spent away from his work, smoking, and that,
on another occasion , he had made a reference to the possibility of Ballard's discharge
for. a dereliction of duty. As in the case of McCowan, the significance of this testi-
mony, if credited, would seem to be entirely clear; it has been corroborated, at least
inferentially, by Haggin's testimony. Ballard denied any such conversations with
the meal cook. And, in cross-examination , Little conceded that his references to the
risk of discharge had been directed, generally, to all three of the day shift helpers.
(f) The testimony of Crew that Leonard, in discharging him on the 4th, had made
no reference to the Union or any union activity. If Leonard were, in fact, as in-
cautious as the testimony of Ballard and McCowan would seem to suggest, his failure
to reveal any antiunion motivation in connection with the discharge of Crew, at or
about the time he allegedly did so in conversations with Ballard and McCowan,
would certainly seem to be out of character. The absence of such evidence in con-
nection with Crew's discharge might well warrant an inference that the statements
now in dispute were not in fact made to the other dischargees. In this connection,
also, Ballard's own reference to statements by Leonard in regard to the quality of
his work would certainly tend to support an inference that his discharge had not
been effectuated for an antiunion motive.
(g) The doubt raised as to McCowan's reliability as a witness, by (a) his initial
failure to recall that he signed a union authorization card, at Ballard's instigation,
while in the Respondent's employ and (b) his incredible testimony that he had heard
nothing about the Union in Casa Grande prior to his discharge.
(h) The doubt raised as to Ballard's reliability as a witness , by (a) his inability
to recall the dates of a union leaflet distribution and a scheduled union meeting, to
be dealt with in detail elsewhere in this report, (b) his incredible testimony that Crew
told him, on January 4, that Leonard had "accused" him (Crew) of distributing the
Union's authorization cards. Crew's testimony shows-at best-that his conclusion
with respect to Leonard's reason for discharging him was based on nothing more
than an inference. I find it difficult to believe that he would have reported anything
more than his inference to Ballard.
(3) Record support for the Respondent's contentions
(a) The undenied testimony of Little that Ballard, in a conversation subsequent to
his discharge, made no reference to any assertion by Superintendent Leonard with
respect to his union activity as a cause of dismissal, but repeated, instead, certain
alleged statements of Leonard indicative of an intention to effectuate the layoffs for
reasons unrelated to any union activity. If credited, this testimony would clearly
indicate a "direct" admission by Ballard, and a "vicarious" admission by McCowan-
in whose presence the statements allegedly were made-that the discharges now in
issue had been effectuated for reasons immune from statutory proscription.
(b) The undenied testimony of Little that Superintendent Leonard had advised
him, shortly before Christmas, of his decision to lay off 1 of the 3 day shift helpers.
This testimony was corroborated by that of Leonard. Little further testified that
Leonard had asked him to designate the helper to be laid off, and that his reluctance
to do so had led him to avoid any consideration of the question, but that he had ad-
vised the helpers, before Christmas, that one of them would soon be terminated. If
credited, this testimony, too, would further support the Respondent's contention that
Ballard's dismissal had been economically motivated.
(c) The testimony of Leonard that he undertook personal observation of the work
done by the helpers on the day shift in order to select one for layoff, and that he se-
lected Ballard on the basis of these observations. Leonard's testimony indicates that
he had previously asked Little to select a man for the layoff; that Little had never
announced a decision; and that he therefore felt impelled to observe the helpers at
1850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work to reach his own decision. As a witness, Leonard said that he selected Ballard
for the layoff, as the "poorest" of the helpers, because he observed the employee
spending "too much time" at the filter press, instead of assisting the other helpers in
their general cleanup work. The superintendent insisted that Ballard's layoff had
been part of the staff reduction program previously noted, and that he (Leonard)
had determined to lay off Ballard, specifically, without consulting General Manager
Briscoe or Mill Manager Richardson about his choice.
(d) The testimony of Haggin that Little had commented to him, shortly before
Ballard's discharge, that the latter was not performing his duties as he was "sup-.
posed" to perform them. Little testified that Haggin was inexperienced but that
both he and T. P. Taylor, the other helper, were more "dutiful" than Ballard on the
job. When questioned in cross-examination as to the relative qualifications of each
helper, Little insisted that the work involved unskilled labor only, and that Haggin
had shown himself fully able to perform assigned duties after they were demon-
strated or explained.
(e) The inference to be drawn, from the testimony of Little and Superintendent
Leonard with respect to the operation of the cooker and the expeller, that McCowan
had displayed poor judgment as a meal cook and performed his duties in an ineffi-
cient manner. This testimony, if credited, would of course tend to establish a justi-
fication for the superintendent's decision to dispense with McCowan's services.12 The
Respondent's contention, in brief, appears to be that McCowan's water pressure
adjustments were consistently too high; that the meal produced by the cookers under
his operation was consistently too "wet"; and that it went through the expeller, there-
fore, without yielding the desired or optimum percentage of available cottonseed
oil. In this connection, also, it appears to be the contention of the Respondent that
certain periodic "weight" tests which the meal cooks were required to run-in which
the amount of cottonseed "meal" discharged by the expeller in a predetermined inter-
val, usually 2 minutes, was weighed to provide a rough approximation as to whether
it had been supplied with the optimum amount of moisture and whether it had been
"cooked" properly-revealed that McCowan's operation of the cooker and the ex-
pellers was based upon a misconception as to the optimum amount of "moisture"
Is The evidence in this connection, as developed in some detail, reveals that the cotton
seed, as it enters the cooker, contains natural "moisture" in varying amounts. Within the
cooker it is subjected to steam pressure, reasonably calculated to raise its temperature and
thus to "cook" it Insofar as the record shows, this steam pressure is not varied. The
undenied and credible testimony of Superintendent Leonard establishes that expulsion of
the cooked cottonseed from the cooker's lowest level at a temperature roughly between
250°-260° Fahrenheit is considered desirable, and a review of some partial production rec-
ords in evidence indicates that, in fact, the "cooker" temperatures were maintained at a
255°-260° level. Because of the variation indicated in the natural "moisture" content of
the seed, achievement of this objective apparently requires the constant "undivided" at-
tention of the meal cook, and frequent adjustments of the amount of water or "moisture"
being added to the seed, under forced piessure, in the "cooking" process Meal Cook Little
testified, with substantial corroboration by the superintendent, that the water pressures
required to achieve the desired objective, measured by the gauges on the pressroom wall,
might have to be varied between 50 lbs. and 400 lbs, with 250-300 lbs. as the median, or
normal, range. And a review of the Respondent's "Press Room Reports" in evidence does,
in fact, reveal that the water pressure gauges on Little's shift-during the period covered
by the reports-registered pressures of 50-380 pounds, with an "interquartile" range of
170-270 pounds on the French "cooker" and 120-200 pounds on the Davidson-Kennedy
machine. McCowan, however, testified that the normal range of water pressure required
to add "moisture" to the seed in the cooker, on the basis of his experience, ran between
350-400 lbs.; his testimony in this connection is inferentially corroborated by that of
Crew. All parties agreed that any temperature increase in the "meal" within the cooker,
to a point about 260° Fahrenheit, would call for an increase of water pressure in order
that the temperature might be reduced to the optimum level indicated, and that any tem-
perature decline within the cooker, to a point below 250° Fahrenheit, would call for a
reduction in water pressure calculated to permit an increase in temperature. All of the
witnesses qualified to testify on the subject also agreed that "meal" withdrawn from the
cooker at temperatures either above or below the optimum range previously indicated
would, ipso facto, to be too "dry" or too "wet" to permit the efficient extraction of oil in the
expeller. The record indicates that the Respondent considers its operations efficient
when the "residual" oil, unextracted by the expellers, amounts to no more than 4 percent
of the meal, by volume. Little's reports would seem to indicate that his work met this
standard ; the "residual" oil on his shift appears to have approximated no more than 3.78
percent-4.10 percent of the meal after its expulsion.
CASA GRANDE COTTON OIL MILL 1851
required , since the "weight" of the meal derived from the expeller under his direc-
tion ran consistently high.13
(4) Record factors detracting from the weight of the Respondent's case
(a) The fact that Ballard and McCowan consulted Field Representative Harris
within 2 days after their discharge , and that Harris filed unfair labor practice charges,
immediately , bottomed upon their dismissal , might conceivably be said to rebut any
inference grounded in Little's testimony , that they believed themselves to have been
terminated for reasons other than their union activity . And certainly it could be
taken as importing a refutation , indirectly , of Little's testimony that Ballard had
admitted the existence of legitimate business reasons for the terminations. In the
alternative , it could of course be argued that the charges were filed as a self-serving
action, grounded in a willingness on the part of Ballard and McCowan to misrepre-
sent the reason for their discharge.
(b) The inference to be drawn , with respect to McCowan 's competence, from
the undisputed evidence available with respect to his employment history. The
record shows that McCowan has been employed in cottonseed oil mills for more
than 30 years . At the outset of his employment , which began in September 1917,
he worked , apparently , as a pan shover . 14 During this period McCowan was em-
ployed at the Lawton, Oklahoma , plant of the Respondent's parent company, and
worked for a time under Luther Leonard 's supervision , the latter being then em-
ployed as the night superintendent there. At some time in the 30's McCowan became
a meal cook at the aforementioned Oklahoma plant. His period of tenure as a
meal cook in Oklahoma has not been specifically defined, but the record shows
that he resigned in December 1947, and that he spent the next 6 years as a meal
cook, immediately prior to his employment by the Respondent in Casa Grande, at
the Phoenix operation of the Western Cotton Oil Company, another firm in the
industry . This record of lengthy and apparently creditable , service as a meal cook
for at least two employers , certainly suggests that McCowan knew his job, and
warrants an inference that, if he did not know the particular quirks of the cooker
used in the Casa Grande plant, he would at least have been able to understand and
apply specific instructions , calculated to improve his efficiency . In fairness to the
Respondent, however, it should be noted that Superintendent Leonard, while em-
ployed as a night superintendent for the Respondent 's parent company in Oklahoma,
may have known McCowan only as a pan shover . Leonard's employment history
indicates that he entered the employ of the Respondent 's parent company, at the
Lawton plant, in 1920; that he served as a "linter " and "repairman" for a number
of years; and that he became the plant's night superintendent at a time not set forth
clearly in the record. He was transferred , at some unspecified date, to another
plant. There is no reliable indication , therefore , that he was a supervisor at the
Lawton plant , in which McCowan worked, during the latter 's employment as a meal
cook-and it may very well be that his opportunities to observe McCowan and to
form a judgment with respect to his competence in the latter capacity were, in fact,
limited to the period of the dischargee 's employment at the Casa Grande operation.
Leonard, in fact, so testified.
(c) The apparent inconsistency of the Respondent 's several contentions with
respect to McCowan's alleged incompetence . In substance, the Respondent contends
that McCowan added excessive amounts of "moisture" to the cottonseed meal in the
13 Little testified that a yield of 50-60 pounds of "cake" every 2 minutes represented
optimum performance by an expeller ; he insisted that a yield of 70 pounds , claimed by
McCowan, would signify a failure to press the optimum amount of available oil out of the
cottonseed cake , and might damage the expeller. The meal cook denied that he had ever
been criticized by Leonard , or urged to match McCowan 's 70-pound figure.
14 The Dictionary of Occupational Titles issued by the United States Employment Serv-
ice, of which I have taken official notice , defines a "pan shover" as a laborer assigned to
load cakes of cottonseed meal into presses, usually hydraulic , in which the cakes are
squeezed to extract their oil . The work is described , in the above -cited dictionary, as
follows : "Pushes thin steel pan (blade ) under cloth-covered cake in forming machine,
and lifts it from forming tray of machine . Transports cake to press, places it in a com-
partment , and jerks out pan or blade. Repeats operation until each compartment is filled.
Turns handwheel or pushes lever to actuate a hydraulic ram that rises and forces the cakes
in the several compartments together and against the press plate at the top under high
pressure , thus squeezing oil from the cakes which drains into a tank beneath the press."
The operation is thus revealed as essentially an unskilled, or at best a semiskilled
operation.
1852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cookers and thus ran unduly "wet" meal. At the same time , however, it is con-
tended that McCowan added "weights" to the safety door on an expeller-a pro-
cedure which would be calculated , insofar as the present record shows , to force the
acceptance by the expeller of "dry" meal which otherwise , might "back up" at the
mouth of the expeller's "worm shaft" and spill out of the safety door . The faults
attributed to him, therefore , would seem to be mutually exclusive.
(d) The doubt raised as to Richardson 's reliability as a witness by (a) his in-
credible denials of any conversation with Leonard or others about the "subject
matter" of his testimony , after the charges in this case were filed; (b) his inability
to recall the date of a recent leaflet distribution by union representatives, to be
discussed in detail later in this report ; and (c ) his contradictory testimony , in direct
and cross -examination , as to whether he had made any reference to the union cards,
or to the union activity at the plant , in a discussion with Superintendent Leonard,
while attempting to determine the reason for McCowan's discharge.
c. Conclusions
Which aspects of the record thus summarized, then, shall be recognized as the
weightier, when thrown into the scales of judgment? Certainly, an honest answer
with respect to this question cannot be easily reached. Upon, my own consideration
of it, I am constrained to say that I remain balanced in doubt with respect to the
credibility problem presented for resolution. Others may differ, on the record, and
hold that a preponderance of the evidence dictates a resolution of the issue in favor
of one party or the other. As the Trial Examiner in this case, however, I must
acknowledge that I have found the evidence insufficient to establish a preponderance
in favor of either of the contentions advanced for my acceptance. Having put any
"demeanor evidence" aside, in short, as a determinative factor with respect to the
credibility issue here presented, I have found the cold record, also, insufficient to
resolve the question convincingly. And since, in these cases, the General Counsel
must bear the burden of establishing his case, and the credibility of his witnesses,
by a preponderance of the evidence, the fact that I remain balanced in doubt com-
pels me to conclude that the General Counsel's burden, with respect to the allegedly
discriminatory discharges of Ballard and McCowan, has not been met. I shall
recommend that the complaint, in this respect, be dismissed.
C. The leaflet distribution
1. The evidence
The original charges in this case, with respect to the discharges of January 4,
1954, were filed on the 7th of that month. At the same time, I find, Field Repre-
sentative Harris of the Union sent a letter to the Respondent requesting recognition
for the organization, and filed a petition for its certification as the exclusive repre-
sentative of the mill employees; the petition was docketed at the Board's Regional
Office as Case 21-RC-3448, on the 8th of the month. A formal hearing appears
to have been held subsequently; and the Board, on March 16, 1954, directed that an
election be held, among the Respondent's mill employees, to determine their desires
with respect to representation. The election was scheduled for April 9 at the plant.
On Wednesday, March 31, 1954, two representatives of the Union-Sherman Bal-
lard and Field Representative Harris-distributed a leaflet to the Respondent's em-
ployees, to announce a "special meeting" on April 2, at which all the "details" of the
election would be explained.15
On the morning of March 31, therefore, shortly before 8 a. in., Ballard and
Harris appeared in the vicinity of the Respondent's plant, to distribute the leaflets
15 Several of the witnesses were vague in their testimony as to the date on which this
leaflet distribution occurred. Ballard testified positively and with determination, in the face
of several pointed suggestions that he might be in error, that the "meeting" announced in
the leaflet had been scheduled for March 26, 1954, and that the distribution of the an-
nouncement, therefore, must have occurred several days prior to that date. Richardson,
for the Respondent, testified with equal certainty that the leaflet announcing the April 2
meeting was distributed on March 29, a Monday. Leonard "thought" it had been distrib-
uted before the 31st. Field Representative Harris insisted, however, that the first leaflet
distribution with respect to the scheduled meeting had occurred on the 31st. His testi-
mony comports with the inference to be drawn in this respect, from the mimeographed
date shown on the leaflet as to the date of its preparation, and I have found his chrono-
logical estimate credible.
CASA GRANDE COTTON OIL MILL 1853
in question. The record reveals a sharp conflict as to the manner in which they
attempted the distribution.16 According to Ballard's testimony, he and Harris sta-
tioned themselves on the northern shoulder of the public highway, facing each
other across the company road-Ballard, allegdly, on the eastern or "town" side of
its junction with the highway and Harris to the westward. The testimony of Ballard
in this respect was substantially corroborated by that of Harris, who declared, also,
that he drew a line, with his foot, across the company road at a point midway be-
tween the northern edge of the highway pavement and the telephone line, to indi-
cate the limits of the area within which he and Ballard proposed to function.
Each of the two witnesses offered by the General Counsel, in this connection,
testified that these limits were never exceeded during the leaflet distribution, and that
they never entered the Respondent's property, on the other side of the telephone line.
Richardson and Leonard, however, testified that they observed the union repre-
sentatives, at or about 8 a. in., standing together west of the company road, 4 or 5
feet north of the telephone line, and immediately in front of a company sign located
on its property. (Leonard testified that they were "inside" the Company's road.)
The record establishes that Richardson and Leonard observed the union repre-
sentatives from a car driven "out" of the plant area by the former. They stopped,
I find, to talk. Leonard asked for a copy of the Union's leaflet. He and Richardson
each received one; and each read it, apparently, on the spot.
The testimony of Ballard and Harris with respect to the conversation that ensued
is substantially identical. Ballard testified to a statement by Leonard that they were
on a private road, and that they would have to get off. According to Ballard,
Leonard went on to say that:
If we [Harris and Ballard] didn't get off the road that they [Richardson and
Leonard] would have us picked up.
Shortly after their return, according to Ballard, Leonard drove out, en route to
town. The dischargee's testimony indicates that the superintendent tossed a query
at him, in passing, asking in words or substance, "Don't you know you liable to get
run off this place?" as his car went by. Field Representative Harris, who also testi-
fied with respect to the incident, recalled that Leonard had directed a remark at
Ballard, but could not testify as to what was said. His testimony varied from that
of Ballard, however, in that he recalled the superintendent as having stopped his
car to address his remark or remarks to the dischargee before driving off.
The superintendent categorically denied that he had said anything to Ballard,
upon leaving the plant in the course of the afternoon in question.
Within a short time, according to the union representatives, Leonard returned
to the plant. The testimony of Ballard and Harris, if credited, would indicate that
he approached the plant from the east, on the public highway, at approximately
30-35 miles per hour; that he began to drive his car off the highway and at least
partially on the shoulder some time before it reached the company road; that its
angle of approach to the company road was such as to endanger Ballard, standing
on the shoulder with his back to the east, adjacent to the junction between the com-
pany road and the highway; and that Ballard was able to escape being struck by
Leonard's car only because of his immediate reaction to a shouted warning by
Harris. Ballard testified, specifically, that Leonard had driven his car at such an
angle as to require him to "step back" in order to avoid being hit; Harris, although he
testified that the superintendent drove "pretty close" to Ballard, indicated that he
did not "pull into" the dischargee while approaching the access road.
10 The Respondent's plant is located slightly west of Casa Grande, on the north side
of the paved Casa Grande-Gila Bend highway. Its property, I find, is unfenced A com-
pany access road meets the highway at right angles and runs northward to the plant,
which would appear to be located at some distance from the main highway named Such
clues as the record affords with respect to the physical appearance of the area would seem
to warrant the following conclusions • Adjoining the paved highway, on each side, there
appears to be a 3-foot unpaved shoulder. Immediately to the north, this shoulder ap-
parently slopes off, more or less sharply, into a ditch or gully At the point where the
company's access road joins the highway, however, the slope would appear to be gradual.
The northern edge of the ditch, insofar as the record shows, does not appear to be too
sharply defined. At a distance of approximately 20 feet from the edge of the highway,
however, and immediately outside the recognized northern "limits" of the gully, a line
of telephone poles is located. The record establishes, without contradiction, that the
Respondent's property line-though unmarked by any fence-runs parallel to the high-
way, immediately north of the telephone poles. The firm's access road, it would aDDear,
was, at all material times, unpaved . I so find.
1854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leonard, as a witness, categorically denied that he had driven his automobile,
on the occasion in question , or at any time, in such a way as to threaten , scare, or
otherwise cause apprehension to Ballard with respect to his personal safety.
Somewhat later in the afternoon , if the testimony of Ballard and Harris is to be
believed, Richardson drove up to the plant from town, stopped the "pickup" truck
he was driving, and said to Ballard, in words or substance, that, "I thought I told
you boys to stay away from down here-ain't you going too far?" According to his
testimony, Ballard observed that they were on the highway. Harris walked up, ac-
cording to the dischargee, and advised the mill manager that he and Ballard had
been advised it would be "all right" to distribute leaflets on the highway as long as
traffic was not blocked. (This testimony was corroborated in substance by Harris.)
It is the testimony of the mill manager, however, that he asked Harris-at the out-
set, and while still in his "pickup" truck-if the latter did not think he and Ballard
were obstructing traffic-to which Harris, allegedly, replied only that they had seen
the sheriff and knew their rights.17 After receiving this reply, Richardson, I find,
parked his truck at the side of the company road, a short dist4nce from its junc-
tion with the highway, and walked back to hold a brief conversation with Harris.
His testimony with respect to the conversation agreed-in the main-with that
of the union representative. The record indicates, and I find, that it was limited, in
substantial degree, to a question on the part of the mill manager as to the advan-
tages the Union would be able to offer the employees, and the amounts to be charged
any employees who joined the organization. Harris advised him, apparently, that
such matters were not his concern.
In cross-examination, Field Representative Harris admitted that the statements
and course of conduct attributed to Leonard and Richardson, in his testimony, did
not interfere, in fact, with the leaflet distribution; and he testified that no employee
refused to accept a leaflet, at any time, because of the presence of Leonard or the
mill manager. Harris appears to have distributed the same organizational leaflets,
or others, at the highway junction over a period of several days; his testimony indi-
cates that no comments about the distribution were made by Richardson or Leonard
after the first day, as detailed in this report.
2. Analysis
In this posture of the record , it is the General Counsel's contention , apparently,
that Ballard and Field Representative Harris were not committing any trespass, or
obstructing traffic , in the course of their leaflet distribution , but that Richardson and
Leonard saw fit to suggest , nevertheless , that their conduct was improper and that
they would be forced to leave, by legal authority, if they persisted in it . 18 In the
alternative , the General Counsel contends that Ballard and the union representative,
even if engaged in a technical trespass , were entitled to distribute the Union 's leaflets
without let or hindrance-on the ground that any effective distribution of the leaflets to
the employees of the Respondent would otherwise be rendered hazardous and virtu-
ally impossible . See, e . g., N. L. R. B. v. LeTourneau Company of Georgia, 324
U. S. 793, 797-798. It is argued that the statements and course of conduct attributa-
ble to Mill Manager Richardson and Superintendent Leonard thus imposed an un-
reasonable impediment upon the exercise by the Respondent 's employees of their
right to self-organization-through a denial of their freedom to communicate with
one another-and that the Respondent should therefore be found to have engaged
in interference , restraint , and coercion.
Any conclusions with respect to this aspect of the case must rest, again, upon a
credibility determination , or determinations . Almost all of the relevant evidence is
in conflict-with the testimony of Ballard and Harris , on the one hand , opposed by
that of Richardson and Leonard on the other.
it Richardson's testimony with respect to this aspect of the situation appears to have
been offered to indicate a course of conduct on his part consistent with other testimony,
not previously discussed, that Ballard and Harris had been together in the middle
of the company road at the time of his approach, between the telephone lines and the
public, highway As witnesses, however, Ballard and Field Representative Harris had
categorically denied any course of conduct on their part calculated to interfere with the
passage of automobiles en route to or from the Respondent's plant.
>e The General Counsel 's contention that Richardson and Leonard threatened Ballard
and Harris with "physical violence" appears to refer to the superintendent's alleged at-
tempt to frighten Ballard by an apparent effort to run him down with a car ; this was
the only evidence in the case offered in support of the cited allegation in the complaint.
CASA GRANDE COTTON OIL MILL 1855
While Ballard's demeanor as a witness, in this connection, was just as forthright
and confident as that displayed in his earlier testimony with respect to the January 4
discharges, his reliability is again rendered somewhat suspect by virtue of the fact,
among others, that he was unable to recall, even after being prompted to revise his
testimony, the date of the "highway" incidents now under consideration. In view of
my previous determination that his testimony, even when corroborated by that of
McCowan, was not sufficiently convincing to sustain the General Counsel's case with
respect to the discharges, I would be disposed to reach a similar conclusion here if
Ballard's testimony stood alone. Should the fact that it has been corroborated, in
almost every material respect, by that of Field Representative Harris be considered
sufficient to establish the "preponderance" required to sustain the General Counsel's
case? I find myself constrained to reach a contrary conclusion.
Harris, in the main, impressed me as an honest witness. His testimony, too, was
given in a forthright manner, with every indication of frankness. With full knowl-
edge of Ballard's testimony, as the record will show, Harris did not corroborate the
dischargee in every respect; this would certainly be entitled to consideration as a
persuasive indication that the Union's field representative was testifying truthfully,
to the best of his recollection, regardless of where the "chips" might fall. His testi-
mony was not marked, in any way, by evasiveness, or any obvious failure of
recollection.
It was, however, subjected to effective attack, in one significant respect. As will
be seen, elsewhere in this report, Harris corroborated Ballard, expressly, in testi-
mony offered to show that Mill Manager Richardson had participated in "surveil-
lance" of the Union's scheduled meeting place, on April 2, in the afternoon. His
testimony was unequivocal. But the record, as this report will develop, clearly shows
that Richardson's participation in any "surveillance" of a union meeting place in
Casa Grande, on the occasion in question, would have been impossible. I have
been forced to conclude that the testimony offered by Harris to corroborate that
of Ballard, in this connection, must be considered incredible-and that his action in
offering it raises a substantial doubt, at the very least, as to the reliability of his other
testimony, taken as a whole.
I have not been impelled to conclude that Harris misrepresented the facts with
respect to the "highway" incidents, in every respect. In the main-as I have said-
he impressed me as honest. But in all fairness, it must be recognized that his version
of the incidents which developed in the course of the leaflet distribution herein
noted-as offered to corroborate the testimony of Ballard-cannot be characterized
as persuasive, in the face of conflicting testimony, when the record shows that he
testified incorrectly, or mistakenly, in another closely related and material matter.
3. Conclusion
As in the case of the discharges herein challenged as discriminatory, I must find-
in all good conscience-that the General Counsel has failed to sustain his burden,
and that no unfair labor practice or practices, attributable to the Respondent, have
been established by a preponderance of the evidence dealing with the Union's leaflet
distribution. In the absence of persuasive testimony, I am unable to conclude that
the distribution was, in fact, conducted, at all times, on the public highway. Nor
can I conclude if it was not, that the situation would warrant an application of the
LeTourneau rule.19 And if the leaflet distribution-confined to the public highway-
was not in fact virtually impossible, the admitted attempts of Richardson and Leon-
ard to forestall any trespass or interference with traffic, on the part of the union rep-
resentatives, cannot be characterized as involving interference, restraint, or coercion.
I so find.
D. The surveillance
1. The evidence
Pursuant to its previous announcement, the Union scheduled two "special meet-
ings" for the Respondent's employees on Friday, April 2, 1954. The meetings were
scheduled at "Mary Forman's Pool Hall" in Casa Grande, at 2 p. in. for the swing
and graveyard shifts, and at 6:30 p. in. for the day shift employees.
11 The union representatives themselves would seem to have recognized that a leaflet
distribution confined to the public portions of the access road, and the adjoining highway
shoulder, would be effective-and there is no indication in the record, at least on their
part, that it was not.
1856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is the contention of the General Counsel , primarily on the basis of testimony
provided by Sherman Ballard , with corroboration by Field Representative Harris,
that Superintendent Leonard and "Buddy" his son-the latter a rank-and-file em-
ployee at the plant-appeared in front of the "pool hall " shortly before the afternoon
meeting was due to start; that the superintendent 's son-the driver of the car in which
they appeared-parked it immediately in front of the "pool hall," and got out to
sit on a bench in front of the meeting place with Ballard, and later with the Union's
field representative ; that Superintendent Leonard remained in the car ; that he subse-
quently called over T. P. Taylor, a day shift pressroom employee, then on sick
leave, and spoke to him briefly ; and that he did not leave the vicinity of the scheduled
meeting with his son until 3 p. in., approximately . Ballard also testified , with the
corroboration of Harris , that a number of persons known to him, by sight, as em-
ployees of the Respondent approached the "pool hall" by automobile , while Super-
intendent Leonard was seated in the car in front of it; that none of the automobiles
stopped; and that , for lack of attendance , no meeting was, in fact, held.
Ballard also testified that , while seated on the bench in front of the "pool hall"
he observed Mill Manager Richardson drive by several times in his car; he described
the car and was positive in his identification of Richardson as its driver . His testi-
mony in this respect was expressly corroborated by Harris , the Union 's field repre-
sentative . (According to Ballard , Richardson drove slowly , passing the "pool hall"
2-3 times in each direction , at 10-20 minute intervals between 2 and 3 p. m.)
With respect to the evening meeting, Ballard testified in substantially similar
terms. Specifically , he testified that Superintendent Leonard again appeared in the
vicinity of the "pool hall" shortly before the scheduled meeting hour , seated in the
back of a car-which his son, the driver , parked directly across the street , this time,
from the entrance of the meeting place as announced . Ballard's testimony indicates
that everyone remained in the car , this time, and that it left shortly before 7 p. m.
Once again , according to Ballard , various employees of the Respondent , known to
him only by sight, drove by the "pool hall" in cars, but did not stop. For lack of
adequate attendance , the record shows, no evening meeting was held. Ballard's
testimony with respect to the evening "meeting" was again corroborated by the
Union's field representative . ( Ballard also testified , this time without corroboration,
that he saw Richardson drive past the "pool hall" 3-4 times or more after 6:30 p. m.,
driving slowly , back and forth.)
Superintendent Leonard, as a witness for the Respondent , admitted being present
in front of the "pool hall" at or about the time of the scheduled union meetings 2°
The superintendent admitted that he had remained in his son's car-parked as it was
almost directly in front of the "pool hall" entrance-for at least three-quarters of an
hour, and he further admitted that he had spoken , briefly, at one time during this
period to T. P. Taylor, a company employee 2 i Leonard also freely admitted his
presence in the vicinity of the "pool hall" at the time previously set for the evening
meeting. And his testimony would certainly warrant an inference that he intended
his presence , at the time, to be more or less inconspicuous.
The superintendent insisted that his presence in the vicinity of the "pool hall" at
the hours indicated had been dictated by "personal" reasons, and that he hadn't come
to "spy" on any union activity . Specifically , he testified that his son , Buddy, a rank-
and-file employee , had expressed a desire to attend the meeting in order to see what
the Union had to offer , and that he (Buddy ) had requested the company of his
father, as the Respondent's superintendent , in order that he might have a measure of
20 He testified that he and his son did not reach the Union 's meeting place , in the after-
noon, until 2:30 p. m., approximately . The superintendent alleged, in this connection,
that he had had to wait for his son to "change clothes " and join him ; he insisted that his
son had picked him up at the plant, after changing ; at approximately 2: 15 p in. The
record provides no clue, however, as to why Leonard ' s son would change his clothes at
that time in the afternoon . If employed on the day shift, such conduct on his part would
signify that he left work early on the day of the union meeting ; if employed on the swing
or graveyard shift, his need to "change clothes" in mid-afternoon remains unexplained
I find Superintendent Leonard's attempt to fix the time of his arrival at the "pool hall"
by a reference to his son's schedule , incredible-and therefore find, consistent with the
testimony of Ballard , that he and his son arrived at the Union 's scheduled meeting place
approximately 10 minutes before its announced "special meeting" was due to start. -
n His testimony that their conversation had no connection with the scheduled meeting
has not been controverted-but there is no indication that any of the interested persons
who observed it were, in any way, aware of the fact.
CASA GRANDE COTTON OIL MILL 1857
physical and moral support . 22 Because of this request , the superintendent testified,
he (Leonard) elected to accompany his son when the latter sought to attend the
afternoon union meeting.
The superintendent admitted, quite readily, that Mill Manager Richardson, upon
being advised of the scheduled meeting, had consulted Phoenix counsel to find out
whether he or Leonard "could" attend the meeting in question . And the super-
intendent also admitted that Richardson, after doing so, had informed him of the
counsel's advice-which was, in short, to stay away from the vicinity of the union
meeting and to make no attempt whatever to observe it. As a witness, Leonard ad-
mitted that he had understood Richardson's repetition of this advice as an indica-
tion of its adoption by the Respondent as company policy. Nevertheless, his testi-
mony is that his desire to accommodate his son impelled him, knowingly, to
disregard Richardson's advice.
Leonard attempted to justify this decision by saying that, in his opinion, his son,
as a rank-and-file employee, had a right to attend the meeting, and a further right to
request the support of his father to forestall any possible misadventure.
The superintendent's contention that his presence in the vicinity of the "pool hall"
on the occasions noted derived from "personal" reasons cannot be said to provide
an acceptable defense for his conduct. Arkport Dairies, Inc., 95 NLRB 1342, 1343,
footnote 3. His known presence in the vicinity of the hall would certainly be rea-
sonably calculated to inhibit the voluntary attendance of employees at each of the
scheduled meetings, regardless of his motivation. And in view of his status as a
responsible representative of the Respondent 's management , the company must be
held responsible for his course of conduct. I find that the firm, through the agency
of its mill superintendent , engaged in surveillance of the scheduled union meetings,
and that Leonard's course of conduct, as described, was reasonably calculated to
interfere with, restrain, and coerce the Respondent's employees in the exercise of
rights statutorily guaranteed.23
The available evidence with respect to the alleged surveillance of the "pool hall"
by Mill Manager Richardson-at or about the times announced for the afternoon and
evening meetings , respectivelypresents an interesting credibility issue.
Ballard's testimony in this connection was most positive. He described the car
driven past the hall; and the record reveals at least a tacit assumption, on the part of
all parties, that his description "matched" any accurate description that might be
given of Richardson's car. His identification of Richardson as the driver, on each
of the occasions mentioned in his testimony , was also positive.
Although Harris did not recall seeing Richardson as many times as Ballard's tes-
timony would suggest, in the afternoon, he was equally positive in his identification
of the mill manager as the driver of the car in question. And he, too, testified that
the manager 's car was being driven slowly, and that it passed the "pool hall" more
than once.
In the face of this testimony, however, Richardson testified, with equal assur-
ance, that he was in Phoenix with several other company representatives, attend-
ing an invitational luncheon, on April 2; that he had left Casa Grande in the com-
pany of these individuals early that day, at approximately 8:30 or 9 a. m.; that one
of his companions had been the driver of the automobile used; that all of the men
in the party left Phoenix and returned to Casa Grande together, shortly before the
ra The record suggests that Leonard's 18-year-old son, though married and the head of
an established household, was-and is-a man of relatively slight physique ; and the su-
perintendent's testimony, uncorroborated, is that his son, though desirous of attending,
had expressed unwillingness to attend the meeting without his father's physical and moral
support because the habitues of "Mary Forman's Pool Hall" were supposed to have an
unsavory reputation, locally, for violence and immorality.
x' The fact that Ballard, as a witness, indicated an inability to name any of the em-
ployees who allegedly drove past the hall without stopping, while Leonard sat in the car
nearby, cannot be said to vitiate this conclusion, in any way. On the basis of established
precedents, it may now be taken as datum that the propriety of an unfair labor practice
finding is in no way contingent upon proof that the course of conduct thus characterized
actually served to promote the accomplishment of a forbidden objective. If the course
of conduct in question can be described, reasonably and with propriety, as one reasonably
calculated or tending to accomplish such an objective, the statutory violation is estab-
lished. That, in substance, is the case here
338207-53--vol. 110-118
1858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dinner hour, arriving at approximately 5:30 or 5 : 45 p. m .; that he (Richardson)
then spent 20-25 minutes at the Respondent 's plant ; that he had then eaten dinner
at home at approximately 6 or 6 : 15 p. m .; that his wife thereafter left to attend a
local church function set for 7:30 p . in. while he remained at home with their
children; that his car, throughout the day, had been in the exclusive care and custody
of his wife ; and that it had not been taken out of the garage at his residence by any-
one, during the afternoon or early evening hours , on the day in question . Richard-
son categorically denied any surveillance of the "pool hall" on the 2d , as claimed.
The record clearly establishes that the invitational luncheon cited by Richardson
as the luncheon attended by him , on April 2, was in fact held in Phoenix , 65 miles
from Casa Grande, on that date. (It appears to have been a luncheon sponsored
by Arizona Fertilizers, Incorporated, a Phoenix firm, at the Macayo Restaurant
in that city. I so find.) A representative of the firm responsible for the luncheon
meeting identified Richardson as having been present. And after interviewing the
other company officials involved, three in number, the General Counsel stipulated
that, if called as witnesses, they too would testify that Richardson had accompanied
them to Phoenix for the luncheon, leaving Casa Grande in the morning and return-
ing in the late afternoon. It was further stipulated that Richardson's wife, if called,
would testify that he had left home early on the morning of the 2d; that his car
had been left at their residence; that he had returned and eaten dinner at home
about 6:15 p. m.; that he had remained at home thereafter to "baby sit" while
she attended the church function previously noted; and that she had the "control,
custody and possession" of their car at all times during the day 24
In this posture of the record it would seem to be entirely clear that no charge
of improper "surveillance" could possibly be lodged against the Respondent on the
basis of Richardson's alleged activity on April 2. The identification of the mill
manager by Ballard and Harris, as the driver of a car which passed the "pool hall"
several times, at or about the hours previously set for the afternoon and evening
meetings, can only be characterized as either fabricated or completely mistaken.
And although I have found the Respondent liable under the statute for the activities
of its superintendent in this connection , there would seem to be no justification
whatever, in the record, for an imputation of liability to the Respondent, under
Section 8 (a) (1) of the statute, on the basis of the activities properly attributable
to Mill Manager Richardson on the day in question.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in the last portion of section III, above,
occurring in connection with its operations as described in section I, above, have
a close, intimate, and substantial relationship to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent engaged in a certain unfair labor
practice, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act, as amended.
Specifically, as it has been found that the Respondent, through its responsible man-
agerial agent, engaged in a certain type of interference , restraint , and coercion, it
will be recommended that the firm cease and desist from such conduct and post
appropriate notices declarative of its intention to do so.
Since the General Counsel has, as I view the record, failed to establish by a
preponderance of the evidence, that the discharges cited in the complaint as dis-
criminatory were in fact engineered to discourage membership in the Union, and
since the unfair labor practice found does not appear to involve any overriding
antipathy to the Union or its employee supporters , on the part of the Respondent's
zi The available evidence indicates that Superintendent Leonard called Richardson on
the evening of the 2d to inform him that no union meetings had, in fact, been held. The
mill manager's testimony is that Leonard said "just a few" employees had appeared, but
did not identify them. When taxed with respect to his conduct, Leonard appears to have
advised Richardson only that his reasons for going were more compelling than those given
him in support of the manager 's earlier advice that he stay away from the meeting.
CASA GRANDE COTTON OIL MILL 1859
-top management , there would seem to be no real basis for an inference that the
Respondent , when apprised of the unfair labor practice found , will nevertheless en-
gage in other unfair labor practices statutorily proscribed . No recommendation
will be made, therefore , that the Respondent be required to cease and desist, gen-
erally, from such other unfair labor practices , or that it be required to post a
notice to that effect.
In the light of the foregoing findings of fact, and upon the entire record in the
case, I have reached the following:
CONCLUSIONS OF LAW
1. United Packinghouse Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act, as amended.
2. The Respondent did not, by its discharge of Thomas Crew, Sherman Ballard,
or Delbert McCowan, on January 4, 1954, and its subsequent failure to reemploy
them, discriminate against these individuals because of their union membership
and activities, or to discourage union membership. The Respondent thus did not,
by its course of conduct in this respect, engage in any unfair labor practice within
the meaning of Section 8 (a) (3) of the Act, as amended.
3. The Respondent did not, by virtue of any statements attributable to its super-
intendent or mill manager on the occasion of a union leaflet distribution in the
vicinity of its plant, interfere with, restrain, or coerce its employees in their exercise
of rights guaranteed in Section 7 of the Act. The Respondent thus did not, by any
statements or course of conduct attributable to it in this connection, engage in an
unfair labor practice within the meaning of Section 8 (a) (1) of the Act, as amended.
4. The Respondent, by virtue of its superintendent's surveillance of two scheduled
union meetings, has interfered with, restrained, and coerced the aforesaid employees
in their exercise of rights guaranteed in Section 7 of the Act, and has thus engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, as
amended.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act, as amended.
[Recommendations omitted from publication.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT engage in surveillance of any place of union assembly, at or
about the time of any scheduled union meeting.
WE WILL NOT, in any like or related manner, interfere with, restrain, or
coerce our employees in the exercise of their right to attempt self-organization,
to form labor organizations, to join or assist United Packinghouse Workers of
America, CIO, or any other labor organization, to bargain collectively through
representatives of their own free choice, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) of the Act,
as amended.
All of our employees are free to become and remain members of the Union named
above, or any other labor organization, or to refrain from any such activity.
CASA GRANDE COTTON OIL MILL,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.