California Cotton Oil Corp.

National Labor Relations Board - Board Decisions

Feb 16, 1940

20 N.L.R.B. 540 (N.L.R.B. 1940)

In the Matter of CALIFORNIA COTTON OIL CORPORATION and EDIBLE
OIL WORKERS UNION, LOCAL 21569, A. F. OF L.
In the Matter of CALIFORNIA COTTON OIL CORPORATION and INTER-
NATIONAL LONGSHOREMEN AND WAREHOUSEMEN'S UNION, LOCAL
1-60, C. I. 0.
Cases Nos. C-1.00 and C-1201, respectively.Decided February 16,
1940
Milling and Processing of Cottonseed Industry--Jurisdiction: operations inci-
dental to processing of cotton seed ; effect on interstate commerce-Interferenice,
Restraint, and Coercion: restraining employees from joining union by state-
ments to assembled employees that they were being misled and would not be
fairly treated by the union, that the respondent could do more for them than
outsiders, that it would move its plant to another State rather than recognize
the union or sign closed-shop agreement ; questioning of employment applicant
concerning union affiliation; subjection of union leader to criticism and ridicule;
respondent's full knowledge of union activities; decline of union activities-
Discrimination: charges of, as to five employees, not sustained.
Mr. Charles M. Brooks, for the Board.
Flint & MacKay, by Mr. Wesley L. Nutten, Jr., lllr. Donald TV.
Hamblin, and Mr. Maurice G. Covington, of Los Angeles, Calif., for
the respondent.
Mr. E. F. Prior, of Wilmington, Calif., for the A. F. of L.
Mr. H. W. Alexander, of Los Angeles, Calif., for the C. I. 0.
Mr. Louis A. Roland, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges separately and duly filed by
Edible Oil Workers Union, Local 21569, affiliated with the American
Federation of Labor, herein called the A. F. of L., and by Inter-
national Longshoremen and Warehousemen's Union, Local 1-60,
affiliated with the Congress of Industrial Organizations, herein called
the C. I. 0.,1 the National Labor Relations Board, herein called the
'The A. F. of L.' s third amended charge alleged violation of Section 8 (1) of the Act.
The C. I. O.'s amended charge alleged violation of Section 8 (1) and (3) of the Act.
20 N. L. R. B., No. 54.
540
CAL'Il O1T.NTA COTTON OIL CORPOI ATION 541
Board, on August 19, 1938, ordered that the two cases be consoli-
dated for the purpose of hearing, and, by Towne Nylander, Regional
Director for the Twenty-first Region (Los Angeles, California),
issued its complaint, dated September 6, 1938, against California
Cotton Oil Corporation, Vernon, California, herein called the re-
spondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, together with notice of hearing, were duly
served upon the respondent, the A. F. of L., and the C. I. O.
In respect to the unfair labor practices, the complaint alleged in
substance that (1) at various dates the respondent laid off or dis-
charged five named employees and at all times thereafter refused
to reinstate them to their. regular positions of employment solely
for the reason that they had joined or assisted the A. F. of L. or the
C. I. 0., thereby discriminating in regard to hire and tenure of em-
ployment of said employees and discouraging membership in a labor
organization, and (2) the respondent on numerous specified dates
since June 1, 1937, and at other times urged, persuaded, and warned
its employees to refrain from joining, or remaining members of, the
A. F. of L. or the C. I. 0., threatening to discharge them and to
tear down and remove its plant to Texas if they did so, made state-
ments derogatory to the A. F. of L. and the C. I. 0., informed
itself of the attendance of its employees at A. F. of L. and C. I. O.
meetings, and otherwise interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them in Section
7 of the Act. On September 22, 1938, the respondent filed its answer
to the complaint admitting some of the specific facts alleged therein
but denying that it had engaged in any unfair labor practices, and
also filed a motion to dismiss the complaint on the ground that the
Board had no jurisdiction over the respondent.
Pursuant to the notice, a hearing was held at Los Angeles, Cali-
fornia, from September 26 to October 5, 1938, before James M. Brown,
the Trial Examiner duly designated by the Board. The Board and
the respondent were represented by counsel, the A. F. of L. and
the C. I. O. by representatives and all participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties. During the course of the hearing, the respondent made
oral motions, in addition to its written motion, to dismiss the com-
plaint for lack of jurisdiction. All these motions were denied by the
Trial Examiner. The Trial Examiner also made rulings on various
other motions and on objections to the admission of evidence. At
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the close of the hearing, counsel for the Board moved to amend the
complaint as to formal matters to conform to the proof. Counsel
for the respondent stated he had no objection thereto. It does not
appear that the Trail Examiner expressly ruled on this motion. It
is hereby granted. The Board has reviewed the rulings of the Trial
Examiner, and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
The Trial Examiner thereafter filed his Intermediate Report, dated
February 15, 1939, copies of which were 'duly served upon all the
parties, in which he found that the respondent had engaged in un-
fair labor practices affecting commerce, within the meaning of Sec-
tion 8 (1) and (3) and Section 2 (6) and (7) of the Act, by dis-
charging and refusing to reemploy four of the five employees alleged
in the complaint to have been discriminated against, and by other-
wise interfering, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act. He further
found that the discharge of Pleas Taylor, the other employee alleged
to have been discriminatorily discharged, was for cause and involved
no unfair labor practice. The Trial Examiner recommended that the
respondent cease and desist from its unfair labor practices and take
certain affirmative action to effectuate the policies of the Act, and
that the complaint be dismissed as to Pleas Taylor. Thereafter the
respondent filed exceptions to the Intermediate Report and a. brief
in support thereof. Neither the A. F. of L. nor the C. I. O. filed
exceptions or briefs and, although all parties were afforded an oppor-
tunity. to apply for oral argument before the, Board at Washington,
D. C., no party requested oral argument. The Board has considered
the respondent's exceptions and brief, sustains those exceptions which
are consistent with the findings, conclusions, and order set forth
below, and finds all other exceptions to be without merit.
Upon the entire,record in the cases, the'Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
California Cotton Oil Corporation is a corporation organized under
the, laws of California, with its principal place of business and its
oil mill plant located in Vernon, California. The oil mill plant, at
which the unfair labor practices are alleged to have been committed,
is commonly called the Los Angeles plant and has been operated
by the respondent and its predecessors since 1918. The principal and.
primary business of the respondent is the milling and processing of
cottonseed, the chief products of which are cottonseed oil, cake, meal,
hulls, and first- and second-cut linters. The respondent is also en-
-CALIFORNIA COTTON OIL CORPORATION 543
.gaged-in the business of operating cattle feeding pens, ginning seed
cotton, financing cotton -growers, and buying and selling cotton. The
respondent concedes that all of these operations, with the exception
of buying and selling cotton, which is more fully considered below,
are incidental to the operation of the oil mill plant.
The principal raw material used by the respondent in its operation
of the oil mill plant is cottonseed. A small amount of flaxseed is
also crushed. During the year ending July 31, 1938, the respondent
purchased for the operation of its oil mill plant 74,092 tons of
cottonseed valued at $1,935,138.34, of which 3,106 tons valued at
$61,134.53 were purchased and shipped to the oil mill plant from out-
side`California. The respondent also purchased, entirely within Cali-
fornia, 746 tons of flaxseed valued at $64,331.51. Thus, 4.19 per cent
of the tonnage and 3.16 per cent of the value of the cottonseed, and
4.15 per cent of the tonnage and 3.05 per cent of the value of all seed,
was purchased in interstate commerce.
During the year 1937 the respondent sold 89,632,253 pounds of
oil mill products valued at $2,647,006.64, of which 9,272,333 pounds
valued at $174,265.74 were sold in interstate commerce, being either
shipped to purchasers outside California or sold to purchasers within
California and shipped by the respondent pursuant to instructions
of such purchasers to points outside California. Thus, 10.34 per cent
of the tonnage and 6.658 per cent of the value of oil mill products
in 1937 were sold in interstate commerce. Sales of oil mill products
during the first 0-months of the year 1938 amounted to 37,463,031
pounds, valued at $1,042,607.92, of which 4,549,040 pounds valued
at $76,668.69 were sold in interstate commerce, being either shipped
to purchasers outside California or sold to purchasers within -Cali-
fornia and shipped by the respondent pursuant to instructions of
such purchasers to points outside California. Thus, 12.142 per cent
of the tonnage and 7.3535 per cent of the value of oil mill products
in the first 6 months of 1938 were sold in interstate commerce. The
respondent spends from $300 to $600 a month in advertising oil mill
products in agricultural publications. At the time of the hearing,
there were about 120 production employees at the oil mill plant.
The respondent's cattle-feeding pens, located in Los Angeles
County, California, are operated solely in order to have an outlet
for cottonseed hulls, cake, and meal, products of the oil mill plant.
The pens are available to cattle owners who deliver their cattle to
be fattened, for a consideration, on these products and also on hay
and barley, the latter products being purchased exclusively in Cali-
fornia by the respondent. The respondent reserves for itself all the
resultant manure, which is sold only in California. During the year
ending July 31, 1938, the gross receipts from cattle feeding were
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$261,554.91, and the gross receipts from the sales of manure were
$41,319.54.
Respondent operates two cotton gins in Arizona and 14 gins in
California, at which cottonseed is, for a uniform charge, separated
from the lint. All cotton ginned in California gins is grown in
California; all cotton ginned in Arizona gins is grown. in Arizona.
Since cottonseed is available only at cotton gins, one of the purposes
of cotton-gin operation by the respondent is to secure seed for use
in the oil mill plant. E. Roy Dahlson, secretary-treasurer of the
respondent, testified that although it is possible to operate an oil
.mill without operating cotton gins, "there is some argument here as
to how much seed you would get." Three-fourths of the lint cotton
resulting from the ginning process is sold by the growers to the
respondent's cotton department, described below, and cottonseed is
sold and shipped to the oil mill plant. The gross receipts from the
respondent's California gins for the year ending July 31, 1938, were
$794,909.42. The gross receipts from the respondent's Arizona gins
during the same period were $45,588.07.
Cotton financing, or the lending of money to cotton growers to
finance all their operations, is carried on entirely by the respondent's
wholly owned subsidiary, California Cotton Credit Company. The
primary purpose of financing growers is to assure the respondent
of a proper supply of cottonseed for its oil mill operations, not other-
wise obtainable. Thus, in connection with loans to growers, con-
tracts are made for the purchase by the respondent of all cottonseed
derived from the growers' cotton crop. During the year ending
July 31, 1938, California Cotton Credit Company loaned to Cali-
fornia growers $1,448,009.77, and to Arizona growers $91,658.88.
. The buying and selling of cotton is conducted by the respondent
through its cotton department located at Fresno, California, 230
miles from the oil mill plant.2 The primary object of the cotton
department is to insure the repayment of loans made by the respond-
ent's wholly owned cotton-financing subsidiary by centralizing the
cotton sales of, and thereby securing higher prices for, the growers
financed by the respondent's subsidiary. The cotton department has
in fact made it possible for growers to obtain better prices for their
cotton than they formerly obtained, although the net profit of the
cotton department itself has been relatively small. The respondent,
purchasing about one-seventh of the cotton produced in California,
is about the third, fourth, or fifth largest cotton purchaser in Cali=
2 The cotton department is known as the T. H. Hopkins Cotton Company, but is not
a legal entity apart from the respondent. It is normally operated, under the supervision
of T. 'H . Hopkins , by three office men and one sampler ; during the peak season , two addi-
tional office men and one sampler are added.
C'ALIFO'RNIA COTTON OIL CORPORATION' - 545
fornia. All cotton purchased by the respondent through its cotton
department in 1937 and in the first 6 months of 1938 was grown
and purchased within California. During 1937 the respondent sold
63,778 bales of cotton for which it received $3,554,769.20, and in the
first 6 months of 1938, it sold 51,694 bales of cotton. for $2,281,741.64.
The purchase price and delivery to purchasers of cotton sold during
these periods were made within California. But of the 63,778 bales
sold during 1937, at least 21,554 bales, or about one-third, were sub-
seglieiitly shipped-by the purchasers from the respondent in inter-
state or foreign commerce. Of the balance sold in 1937, or 42,224
bales, it was either impossible to follow the identity thereof in order
to determine whether the same was shipped in interstate or foreign
commerce, or the -Board's agents were unable to determine whether
any more of the cotton was shipped in interstate or foreign com-
merce. The cotton when sold by the respondent was commingled by
the purchasers with cotton purchased from other sellers of cotton and
could not therefore be traced by such purchasers. It is undisputed
that of all cotton grown and sold in California in 1937 approximately
90 to 95 per cent was ultimately shipped in interstate or foreign
commerce.
The respondent contends that the operations of the cotton depart-
ment should not,be considered in this proceeding for the reasons that
these operations are separate, unrelated and independent of the
operations of the oil mill plant at which the unfair labor practices
are alleged to have occurred, that the cotton department is located
230 miles from the oil mill plant, is engaged in a different type of
business with different employees, that none of the oil mill products
are handled by the cotton department and none of the cotton bought
and sold by the cotton department passes through the oil mill. It
is further contended that the activities of only the oil mill plant,
apart from - all other branches of the respondent's business, may
properly be examined to ascertain the effect upon commerce of the
alleged unfair labor practices. These contentions may be granted
without thereby conceding that the -Board lacks jurisdiction in this.
proceeding. We cannot, however, agree with these contentions. The
facts presented in the record compel the conclusion that the various
operations conducted by the respondent constitute an interrelated,
integrated whole, centering about the primary business of milling
and processing cottonseed.3 The respondent operates cattle-feeding
pens in order to utilize certain products of the oil mill plant, cotton
3 Most of the facts relating to the respondent's business were introduced into the record
in the;;forni"of) stipulations; ',upon which -counsel for the-respondent and the Board were
agreed as'toflcontent but-not, in all cases, as`-to materiality or admissibility. Certain of
these stipulations present conclusions which are not borne out by the facts also set forth
in the stipulations or in undisputed testimony , as, for , example, the statements in Re-
spondent Exhibit No. 1 that "the business of buying and selling cotton carried on through
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gins in order more readily to secure seed for the oil mill,. a cottqu
finance company in order to secure contracts for the purchase of seed
from borrowers, and a cotton department in order to protect the in-
vestments of the finance company. If it were not for its oil mill
operations, it seems plain that the respondent would not have been
interested in the cotton department, which showed a net profit dur-
ing the year ending July 31, 1937, of .414 per cent and during the
year ending July 31, 1938, of .0102 per cent, as compared to the oil
mill plant's net profits of over 15 per cent and of 10.93 per cent dur-
ing the same periods.' If the oil mill plant were to cease operations,
the other branches of the respondent's business would be affected
in that there would be little, if any, reason to continue operation of
the cattle-feeding pens, of the cotton gins, of the financing or the
buying and selling of cotton. A strike in the oil mill plant would
consequently affect all the operations of the respondent.
II. THE ORGANIZATIONS INVOLVED
Edible Oil Workers Union, Local 21569, affiliated with the Ameri-
can Federation of Labor, is a labor organization admitting to lnem-
bership production and maintenance employees of vegetable and
edible oil extracting and processing plants in Vernon and vicinity,
including employees of the respondent's oil mill plant. Prior to
January 1938, Soap and Vegetable Oil Workers Union, Local 20283,
affiliated with 'the American Federation of Labor, admitted to its
membership employees of soap-manufacturing plants as well as of
oil extracting and processing plants in the Los Angeles area. After
January 1938 its membership was confined to workers engaged in the
soap-manufacturing industry while workers-in the edible-oil industry
were transferred to membership in the newly created Local 21569.
Both unions are herein called the A. F. of L.
International, Longshoremen and Warehousemen's Union, Local
1-60, affiliated with the Congress of Industrial Organizations, is a
the Cotton Department of Respondent is not . incidental to the operation of Respondent's
cottonseed mill. " and that "the Cotton Department was not at any time necessary in order
to enable Respondent to obtain cottonseed for milling operations ," and the statement in
Respondent Exhibit No . 2 that "Respondent 's oil mill and its cotton department are sepa-
rate , unrelated and Independent branches of its business ." The statements in Exhibit
No. 1 were admitted over objection from the Board ' s attorney that they were- incompetent,
irrelevant , and immaterial , and the statement In Exhibit No. 2 was admitted after counsel
for the respondent agreed that counsel for the Board could examine witnesses 'with
respect thereto , since "he would have the right anyway." Conclusions of this type are
not binding on the Board in the face of stipulated facts or undisputed testimony as to
facts which import conclusions to the contrary . This consideration applies equally to the
statement in Respondent Exhibit No . 5 that "the operation of the gins Is separate and
distinct from the operation of the oil mill and labor dispute in the oil mill plant would
have no effect upon the operation of the Company 's gins."
4 For the year ending July 31, 1937, the net profit of the cotton department was
$15,686 . 75 on sales of $3,787,799 . 51, while the net profit of the oil mill plant was
$424,249 .48 on sales of $2,824 , 843.33. For, the year ending July . 31, 1938, the net profit
for the cotton department was $411 . 50'on sales of $4,030 , 874.31, whereas the net profit
of the oil mill plant was $305 ,837.77 on ' sales of $2,797,382.70.
CALIFORNIA COTTON OIL CORPORATION 547
labor organization admitting to its membership production and main-
tenance employees, exclusive of clerical employees, foremen, and,
those having the power to hire and fire, employed in the cotton in-
dustry within the metropolitan area of Los Angeles, including those
engaged in ginning, compressing, and warehousing of cotton, and in
oil mill plants, including employees of the respondent's oil mill plant.
International Longshoremen and Warehousemen's Union, through
other locals, organizes employees in the cotton industry in other port
areas, and the Congress of Industrial Organizations, through the
United Cannery, Agricultural, and Allied Packing Industry Workers
of America, organizes employees engaged in the growing and process-
ing of cotton in all other areas, including the San Joaquin valley.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In the second week of June 1937, the A. F. of L. began its efforts
to organize employees of the respondent' s oil mill plant, over 75
per cent of whom are colored men. Cards and invitations were cir-
culated among the employees and on June 18, 1937, a union meeting
was held at Slausson Street and Broadway, Los Angeles, at which
Herman C. Thomas, an employee of the respondent, applied for mem-
bership.- Thereafter, Thomas became a leader in organizing efforts.
From August through November 1937 numerous union meetings were
held in Thomas' house and membership increased until 74 of the
average of 132 persons employed during this period by the respondent
had joined or applied for membership in the A. F. of L. At the
first conference in .the summer ;of 1937 between the A. F. of L., rep-
resented by E. F. Prior and J. H. Metcalf, and the respondent, rep-
resented by W. B. Coberly, Sr.,5 vice president and general manager,
and W. B. Coberly, Jr.,' assistant general manager, the respondent
was informed of the A. F. of L.'s intention to organize the
employees. Coberly Sr. stated that he did not care whether his
employees belonged to the union or not and he would not discrim-
inate . against union members, but that he could do more for the
colored-'employees than any union could, and he did not believe the
union could organize them, although it could go ahead and try. At
a second conference in September 1937, Coberly Sr.- reiterated to,
Prior his opinion that union organization among colored employees
would never succeed.
Thereafter, at about the end of September 1937, Coberly Sr. called
a meeting of the employees, the purpose of which, he testified, was to
'Bllereafter'referred'to as Coberly Sr.
Hereafter referred to as Coberly Sr.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explain the respondent's position with regard to the union. Before
the meeting took place, Prior advised Coberly Sr. not to address the
employees on the ground that it would constitute a violation of the
Act. At the meeting which was nevertheless held in the hull house,
Coberly Sr. testified, practically all the employees were present. Only
Coberly Sr. spoke. He told the employees that the respondent be-
lieved it was high time to make its position clear in view of the rumor
and misrepresentation going around that the respondent was going to
be forced to sign a closed-shop contract. He denied that the respond-
ent was party to such a contract and stated that although employees
who joined the union would not be discriminated against, it was not a
requirement of employment that they join the union. Coberly Sr.
testified generally that he never made statements to his employees
derogatory to any union. Witnesses for the Board who were present
at the meeting, however, testified that Coberly Sr. further stated that
the men were being foolishly misled, that "I will guarantee you men
I will do more for you than the outsiders who are trying to get you
misled into a union," and that the colored men would never have
equal rights with the white men in the A. F. of L. or any other union.
Three of the respondent's witnesses testified, in varying degrees, to
similar effect.7 And within a week after the meeting was held, Cob-
erly Sr. recounted to Prior, inter alia, that he had told the assembled
employees that he could do more for them than any labor organization
and that they should not permit any white men to mislead them. Un-
der the circumstances, we find that the afore-mentioned statements,
clearly hostile to the A. F. of L., were made by Coberly Sr. at the
meeting.
Toward the end of October or the beginning of November, Coberly
Sr. again called a meeting of the respondent's employees, to be held
in the meal storage room or No. 10 warehouse. Coberly Sr. testified
that he had heard rumors of a strike, that Prior had told him that the
A. F. of L. had voted to strike, and that he therefore called a meeting
to discuss the strike and its consequences with the employees. At this
meeting Coberly Sr. reiterated that employees had the privilege of
joining a union but that it would not be a condition of their employ-
ment, and observed that lie hoped a strike would not be called at a
time when seed was coming in, that they should present their griev-
ances to the respondent and that he intended to increase their wages
in the future. Several witnesses for the Board who heard Coberly Sr.
speak testified that he further warned the employees, at either the first
or second meeting, that before he would recognize the A. F. of L. or
sign a closed-shop agreement he would tear the mill down and "move
' These witnesses were E. Roy Dahlson, secretary-treasurer of the respondent, and Eddie
Jackson and Fred Jones, employees of the respondent.
CALIFORNIA COT'TON OIL CORPORATION 549
the damn thing to Texas." Coberly Sr. denied having made this state-
ment but admitted that at the second meeting he told the employees
that "if we were going to be put to any unjust difficulty and expense,
that we might find it necessary, in order to compete, to move the plant
or part of it closer to our source of supply." He further testified that
85 to 90 per cent of the cottonseed processed at the oil mill plant comes
from the San Joaquin Valley. The version presented by Fred Jones,
an employee and witness for the respondent, was that Coberly Sr. had
stated that he would move the plant out of the State before he would
pay an unreasonable wage. Under all the circumstances, and in view
of the Trial Examiner's findings as to the credibility of various wit-
nesses testifying on this point, we find that the version presented by
the Board's witnesses more accurately reflects the words actually
spoken by Coberly Sr. It is undisputed that the employees attended
both meetings on company time and property, and were paid for the
time spent therein.
In the early part of November 1937, representatives of the A. F.
of L., including Prior, conferred with the respondent's representa-
tives, including Coberly Sr., and the parties discussed a proposed
contract which the A. F. of L. had, on October 20, submitted to the
respondent. The respondent definitely refused, among other things,
to recognize any labor organization as the exclusive representative of
all its employees. At about this time, at several conferences between
the A. F. of L. and the respondent Coberly Sr. stated that Herman
C. Thomas 8 was a communist, an agitator, and generally "a no-good
nigger," who had been planted by the A. F. of L. in the mill for the
purpose of organizing it. At a later conference in June 1938, Coberly
Sr. repeated his stand against exclusive recognition and told the
representative of the A. F. of L. that he had been as well informed
as to union activities in the plant as the A. F. of L. representative
was, and that the respondent had been successful in eliminating most
of the agitators and troublemakers from the plant.
In December 1937, Coberly Sr. separately addressed the employees
of four departments of the plant, namely, the employees of the press
room, the meal room, the linter room, and the expeller room. One
of the press-room employees, Coberly Sr. testified, requested him to
discuss grievances with the men in that department. Accordingly,
Coberly Sr. appeared before the press-room, employees at two sepa-
rate shifts, discussed with them several of their grievances, told them
that the respondent contemplated certain increases in pay, and asked
them to agree not to make demands for additional increases at least
before February 15th. To the meal-room department employees
Coberly Sr. stated that he had called them together to discuss wages,
8 Thomas is one of the men alleged to have been discriminatorily discharged by the
respondent and is discussed more fully in Section III B, infra.
283031-41-vol. 20-36
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and asked them similarly to agree, in consideration of a slight in-
crease, to make no request for further increases until February 15th.
All the employees individually agreed to the proposal, except Mar-
cellus Hamlin, who said he would have to consult his union before he
could agree. Coberly Sr. testified that he told Hamlin it was his
privilege to consult the A. F. of L., that Hamlin and another em-
ployee also discussed with him the question of overtime wages, and
that the foregoing was, in substance, the complete discussion with
the meal-room employees. Accordingly to Hamlin's testimony,
Coberly Sr. also told the meal-room employees that he was addressing
them because of rumors he had heard, that the agreement proposed by
the A. F. of L. "makes me sick" 'and that .he would never: agree to,...
certain of its provisions. Hamlin thereupon spoke in defense of the
A. F. of L.'s program for better wages and working conditions, and
Coberly Sr. replied, "I hope you all won't go back to the Union and
try to make any trouble for me." Although Coberly Sr. testified
after Hamlin had completed his testimony, Coberly Sr. did not spe-
cifically deny Hamlin's version of the meeting. Under all the cir-
cumstances, we find that Coberly Sr. spoke disparagingly to the meal-
room employees concerning union activities, as recounted by Hamlin.
Beginning in June 1937, when the, A. F. of L. organizational ac-
tivity began, and on numerous occasions in July, August, September,
and October, Coberly Sr. discussed . the matter of hiring and dis-
charging union men with Coberly Jr. and with H. F. Crossno, plant
superintendent generally in charge of employment, lay-offs, and dis-
charges. Coberly Sr. and Coberly Jr. testified that they told
Crossno to be extremely careful to avoid violations of the
Act and to confer with them, concerning employment and . dis-
charges where charges of, violation, might arise; 'despite the fact that-
they did not feel they were subject to the jurisdiction of the Act.
Crossno, after testifying that Coberly Jr. had told him in June or
July that he was "to be very careful in hiring or discharging or
laying off of men that would cause us any trouble with the union,"
stated that these instructions meant :
Well, in this regard, if he was a union man and he was work-
ing, why, he didn't want me.to,lay off a union-man because.-I'
knew he was a union man and wearing a button, which was the
only way I would know that he was a union man. If he was
wearing a button, I was not to lay him off because he was a
union man. In hiring a man, I was not to pick through the
bunch and get a man that had a button on. [Italics supplied.]"
9 At another point, Crossno testified : "Mr. Coberly Jr. didn't want me to discriminate
on the union in any way=if I knew of a union than , not to let that interfere with me
putting him to work." .
CALIFORNIA COTTON OIL CORPORATION 551
Crossno's application of his instructions, so uncertainly expressed by
him, may be found in the occasion of his hiring of Eugene Hill to
Hill testified, and for the reasons stated below we find, that when
he applied for work at the end of October 1937, Crossno asked him
whether he belonged to any union and said "I have orders from the
higher authorities to not hire, any union man or anyone that asso-
ciates with the union, or for the union in any way. If you want
to work here you can't wear -a union button. If you do, you won't
work here." Although Hill admitted that he belonged to the A. F.
of L., he explained to Crossno that this had been necessary to secure
employment in many places in Los Angeles. He promised not to
wear the union button. Thereupon he was hired by Crossno., When
Crossno was questioned concerning this incident, the Trial Examiner
noted that he "was visibly and unmistakenly embarrassed." Crossno
denied that he had told anyone not to wear a union button and
asserted that he told Hill that "I was being very careful as we had
had some union talk around the plant, and outsiders distributing
circulars and other things." When asked what he meant by "being
careful," Crossno testified : "I wanted to know who I was hiring;
whether I was hiring an organizer or a non-union man, or what it
was." 11 That the respondent was "being careful" not to hire active
union members is apparent.
"Mill, as one of the persons allegedly discriminated against , is discussed in Section
III B, infra.
Crossno's full testimony at this point reads as follows
Q. (By Mr. Brooks.) Do you remember how the subject came up about the union?
A. (By Mr. Crossno.) Yes.
Q. How did it come up?
A. Me not knowing Hill. hint being a stranger to me, I made the statement that he
was - I either went to the gate or he canie to me. I don 't know which, but I was hiring
some men the day before that and I was continually putting-on one or two along during
the week: or each day, and lie either asked me for the job or I went to the gate and
called him ; one or the other.
Not knowing him, why I remember telling him I was being very careful as we had
had some union talk around the plant, and outsiders distributing circulars and other
things, that I was being very careful and was trying to hire my old men and had
probably put them all back to work and needed a few new ones.
He said , "well, I am a union man but I don 't give anyone no trouble , but I have
to be union to work in the different parts of the City of Los Angeles."
Q. Did you say anything else to him at that time about being careful about hiring
people because of union talk going on-?
A. No.
Q. I don't understand just what you mean by, that, Mr. Crossno ; about being careful
because of the union . Will you explain that?
A. Well, nothing more than only when I said "being careful ," I wanted to know who
I was hiring ; whether I was hiring an organizer or a non-union man , or what it was.
I didn 't have any particular reason and lie just explained to me that he was a union
man and I said that it didn't make any difference ' as long as his work was satisfactory.
- Q. In other words, you were being careful with all of them that you were hiring?
A. Yes.
Q. In that regard?
A. Yes. I just wanted some kind of an -introduction . That is the only reason I asked
him who he was, where he lived, and he explained to me that he was a union man-.
I said I didn 't care about the union part, as long as his work was satisfactory.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some time in the fall of 1937, a large number of A. F. of L.
buttons were worn at the plant, by which the respondent was made
aware 'whether or not employees belonged to the A. F. of L. In
September Crossno remarked to Walter Stark, who was working with
Herman C. Thomas, the leader in union organization among the
employees, "How is it that Herman will let you work here without
a button on"? Crossno turned to Thomas and told him he would
be better thought of by the respondent "if you didn't talk and carry
on so much about the union." However, Coberly Jr. admitted that
before November 1937 the A. F. of L. buttons had gradually begun
to disappear. The sharp increase in new applications for A. F. of
L. membership mounting from 3 in June to 19 in August and 37 in
September, began to fall precipitately after September, to 8 in Octo-
ber, 6 in November, and none thereafter. Active efforts at organi-
zation on behalf of the A. F. of L. ceased by the early part of
December.
Meanwhile, the C. I. O. had begun its organizing efforts at the
oil mill plant. In October 1937 circulars urging unionization and
attendance at a meeting "to discuss ways and means of forming a
union in the company" were distributed in front of the plant by the
International Longshoremen's and Warehousemen's Union, affiliated
with the C. I. 0., and by Local 1-26 thereof. H. W. Alexander,
field organizer and representative for the C. I. O. at the hearing,
began to organize the employees at the plant on behalf of the C. I. O.
about December 15, and secured as members an undisclosed number
of the respondent's employees, including the five persons allegedly
discriminated against by the respondent.
We think that the facts found above compel the conclusion that
the respondent interfered with, restrained, and coerced its employees
in the exercise of their rights freely to organize and bargain col-
lectively through representatives of their own choosing. When
organizational efforts began at its plant, the respondent was not slow
in instituting measures to prevent their successful culmination.
Later on, Coberly Sr., its general manager, could boast to Prior, the
A. F. of L. representative, that he had known as much about union
activities in the plant as Prior did. This awareness of union activi-
ties was reflected in the fact that a number of meetings of employees
were successively called at the plant during working hours by
Coberly Sr. upon his learning that the A. F. of L. had taken or
contemplated certain action. At the two general meetings called by
the respondent, attempts were made to alienate the employees from
any union, and thereby effectuate Caberly Sr.'s repeated prophecy
to Prior that the A. F. of L. would not succeed in organizing col-
ored employees. Despite the respondent's professions that its em-
CALIFORNIA COTTON OIL CORPORATION 553
ployees had the privilege of joining a union and would not be
discriminated against if they did, these remarks were coupled with
statements to the effect that they were being foolishly misled by
the union, that the respondent could do more for them than these
outsiders, that the colored employees, constituting a large bulk of
the respondent's working force, would not be fairly treated by any
union, and that the respondent would move its plant to another State
rather than sign a closed-shop agreement with, or recognize, the
A. F. of L.
Concurrently, the hostility of the respondent to any union was
clearly manifested by the repeated instructions by higher officials
to the superintendent, Crossno, regarding employment of union
members, the application of which resulted in Crossno's questioning
of an employment applicant concerning his union membership and
warning the applicant that he should not wear a union button in
the plant. This persistently antagonistic attitude was further made
manifest to employees by Crossno's ridicule and criticism, in the
presence of other employees, of the union activities of Thomas, an
employee who was a leader in organizing activities, by Coberly Sr.'s
statement to the meal-room employees that the proposed A. F. of L.
contract made him sick, by the respondent's repeated statements
to A. F. of L. representatives that it would not recognize any union
as an exclusive bargaining agency and that Thomas was a com-
munist, an agitator and "a no-good nigger," and by its boast that
it had been successful in eliminating most of the agitators and
troublemakers. As a result of this campaign of alienation and ob-
struction, it was natural that the enlistment of members and activity
by A. F. of L. should, and in fact did, gradually diminish and finally
cease entirely 12 By all the afore-mentioned acts, statements, and
conduct, we find that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
12 In Matter of Wheeling Steel Corporation and The Amalgamated Association of Iron,
Steel and Tin Workers of North America, etc., 1 N. L. R. B. 699, 709, we said:
The power of an employer over the economic life of an employee is felt intensely
and directly . . . The employee is sensitive to each subtle' expression of hostility
upon the part of one whose good will is so vital to him , whose power is so unlimited,
whose action is so beyond appeal.
And in National Labor Relations Board v. The Falk Corporation , 102 F. ( 2d) 383 (C. C.
A. 7, 1939), enf'g Matter of The Falk Corporation and Amalgamated Association of Iron,
Steel and Tin Workers of North America, Lodge 1528, 6 N. L. R. B. 654, the Circuit Court
of Appeals for the Seventh Circuit said :
The position of the employer , where, as here , there is present genuine and sincere
respect and regard , carries such weight and influence that his words may be coercive
when they would not be so if the relation of master and servant did not exist.
See also Matter of Crawford Manufacturing . Company and Textile Workers Organizing
Committee , 8 N. L. R. B. 1237, 1241.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The alleged discriminatory discharges
Herman C. Thomas. The complaint alleges that on or about
November 8, 1937, the respondent discriminatorily discharged Her-
man Thomas and thereafter refused to reinstate him. In his Inter-
mediate Report, the Trial Examiner found that the respondent
discriminated against Thomas by refusing to reinstate him in August
1937, after a plant shut-down, to his previous position as a regular
fireman . The Trial Examiner made no finding as to subsequent acts
of discrimination which may have occurred after Thomas was re-
turned to work at positions other than that of a fireman. The
respondent contends that no discrimination occurred in August 1937
and, in its answer states that Thomas was refused reemployment
when he returned to work on about November 13, 1937, after being
injured a month previously, because of his past record of inefficiency,
inattention to duty, and substantial damage to the respondent's
property.
Thomas started to work for the respondent as a fireman in Decem-
ber 1936. He was laid off about June 12, 1937, when the plant was
closed for about 6 weeks for the purpose of building a new linter
room. Prior to the lay-off, his night foreman informed Thomas to
come back 2 weeks after the lay-off when his name would be, posted
.for his return to work. When, after 2 weeks, Thomas failed to see
his name posted and Crossno told him to return later on, he reported
the fact to Prior, business agent of the A. F. of L., who filed a
.charge of discrimination with the Board's Regional Director against
the respondent. Metcalf, Prior's assistant, then conferred with
Coberly Jr.; who promised to investigate the matter. Thereafter,
on about August 7, 1937, Thomas was recalled, put to work on a
baler press, and the A. F. of L., on August 10, requested and
secured the withdrawal of its charge of discrimination. Thomas'
rate of pay for work on the baler press was $4 a clay, whereas he
had, as a fireman, earned only $3.60 a day. Nevertheless, Thomas
asked to be returned to his fireman's job for which, the respondent
concedes, he was well qualified and on which his services had been
entirely satisfactory. Crossno denied this request, stating to Thomas
that due to the modernization of the plant, certain employees were
displaced, and the respondent, desiring to find a place for one of
these, Joseph P. Dunn, an old maintenance man who had worked
in the plant for- 15 years and had had experience as a fireman,
granted him the position of .fireman formerly occupied by Thomas.
Crossno testified that Dunn was not given the baler- press position
because it required more strenuous activity and was less suitable
for an older man. The two other men who had, with Thomas, been
CALIFORNIA COTTON OIL CORPORATION 555
regular -firemen prior .to the shut-down, were retained as such .when
the plant:-reopened: : One of- these; Will Holland, had more seniority
as a fireman with the respondent than Thomas; the other, Will
Mayes, began to work as a fireman for the respondent on April 12,
1937, several months after Thomas had begun. However, Mayes
had previously worked in the expeller room from May 16, 1936, to
June 6, 1936, and had worked as a fireman for the predecessor of
the respondent sometime prior to May 1935. Crossno testified that
he considered Mayes a better workman than Thomas, and that
Mayes was an older man. It is true that Thomas had, on June 18,
1937, during the period of the shut-down, joined the A. F. of L. at
its first meeting and had begun to assist in its organizational work
before he was refused reemployment as a fireman. However, under
all circumstances, particularly in view of the fact that he was given
a more remunerative position on the baler press and of the fact that
the A. F. of L. consequently requested the withdrawal of its charge
of discrimination on his behalf, we cannot conclude that the re-
spondent by refusing to return him to his former position as fire-
man, discriminated against Thomas because of his union member-
ship or activity.
Nor are we satisfied that the evidence warrants a finding that
Thomas' discharge on about November 8, 1937, was motivated by
his union membership or activity. After Thomas returned to work
about August 7, 1937, he operated the baler press for about 5 weeks.
It is undisputed that, during this time, in-removing the pressed bales
of cotton to a platform outside the building; Thomas dumped the
bales against, and thereby injured, the corrugated iron side of the
building, contrary to instructions. Crossno reported this to Coberly
Sr. and recommended Thomas' discharge, but Coberly Sr. suggested
that they go to extreme lengths before discharging Thomas in order
to avoid charges of discrimination which might be raised in view
of Thomas' union activity. Toward the end of this period, the baler
press on which Thomas was working, which had cost about $6500,
was injured, and as a result the entire plant was shut down for 8
hours because other machines could not operate when the baling and
removal of cotton ceased. The evidence is uncertain and conflicting
as to whether or not the accident,. which "tore the whole end out
of the press," was due to negligent operation on the part of Thomas.
At any rate, Crossno believed-that Thomas was at fault and again
sought to discharge Thomas, but Coberly Jr. prevailed upon him, in
view of Thomas' activity in the A; F. of L., to find another. job for
Thomas. Consequently; Thomas was transferred to a position in the
seed house. Up to the time of the hearing, no similar accident had
occurred on the baler press.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas worked for 1 or 2 weeks in the seed house where his wage
was reduced from $4 to $3.20 a day. The work consisted of feeding
cottonseed into a conveyor which brought the seed into the plant.
Several pieces of concrete had become mixed with the seed during the
building of the new seed house; Thomas was instructed to sift out the
pieces of concrete with a 12-pronged fork before placing the seed into
the conveyor. While Thomas was engaged in this work, the saws on
the delinting machine became dulled and slowed up production. Upon
investigation Crossno discovered that this was due to pieces of concrete,
which could only have been placed in the conveyor by Thomas. He
also discovered that a large piece of concrete had broken a part on a
rotary lift which elevates the seed from the conveyor into a bin. The
repair of the lift caused a 2 or 3-hour shut-down.13 Once more,
Crossno told Coberly Jr. that Thomas was unable to work satis-
factorily and asked that he be discharged, but again Coberly Jr. ad-
vised that some other position be found for Thomas. After having
completed about 75 per cent of the seed-feeding work, Thomas was
transferred to his last position, namely, unloading seed from railroad
cars.
Thomas held this position from about October 5 to October 10, 1937,
and received $3.20 a day. Witnesses for the respondent, including
an employee who worked with him, testified, and we find, that during
this time Thomas dropped the power shovel, which he operated in
unloading seed from the car, into a pit outside, the car and damaged
it. Crossno admitted that this type of accident occurred to other
employees but testified that it is a rare occurrence. Thomas denied
having dropped the shovel into the pit and admitted only that a cable
on the power shovel broke several times, a trivial occurrence not due
to his fault but to the fact that the cable wore out once in a while. On
October 10, a string of railroad cars collided with the car in which
Thomas was working, breaking the shovel and seriously injuring
Thomas. When Thomas sought to return to work about November 8,
1937, after having been in an infirmary during the interval, Crossno
consulted with Coberly Jr., who in turn discussed the matter with
Coberly Sr. Thereafter Crossno reported to Thomas that he was
discharged because his work had not been satisfactory: Coberly Sr.
testified that he and Coberly Jr. had on this occasion reviewed the
13 Thomas did not deny the foregoing , but testified as follows :
Q. (Mr. Nutten .) And didn ' t you get some rock-fail to take out the rock in the seed
and got . some of the rock in the conveyor?
A. (Mr. Thomas .) Probably I did, but I don't recall.
Q. Don't you recall that they had trouble getting in there?
A. No, I don't recall it.
Q. Might it have happened and you have forgotten about it?
A. It might have happened on the outside , but not on that conveyor.
CAI,Ir'ORN'IA. COTTON OIL CORPOR.ATLON 557
complaints made concerning Thomas' work on his various jobs held
since August 7, 1937, and . concluded :they had reached their limit of
endurance with Thomas.
There can be little doubt that Thomas was an active leader in the
organizing efforts of the A. F. of L., that, to the respondent's knowl-
edge, union meetings were held at Thomas' house, that, as stated
above, he was told by Crossno that he would be better thought of if
he did not "carry on so much about the union," that both before and
after his discharge on November 13, Coberly Sr. referred to him as
a communist, an agitator and "a no-good nigger," and that in June
1938, Coberly Sr. told Prior that the respondent had been successful
in eliminating most of the agitators and troublemakers. However,
it-is-also true that an unusual number of mishaps had occurred on
the jobs filled by Thomas after August 1937, that at each mishap
prior to his discharge the respondent kept Thomas employed despite
Crossno's insistence that he be discharged therefor, and that both at
it conference in September 1937 and at several conferences thereafter
Coberly Sr. told Prior that Thomas was a thoroughly unsatisfactory
worker, that the respondent was bending over backwards to keep
him employed because he was an active union member and it did not
wish to be accused of violating the Act, but that if Thomas did not
improve he would have to be discharged. Upon all the evidence,
we cannot conclude that Thomas was not discharged because of
inefficiency or injury to the respondent's machinery.
. Edgar Edwin Howard began to work at the plant, for the respond-
ent's predecessor, in 1930 or 1931, and except for seasonal shut-downs
and occasional lay-offs was continuously employed until about May
31, 1937, when he was laid off preparatory to the shut-down of the
plant for the purpose of constructing a new linter room. Although
he had previously worked in other capacities, from August 1936 to
his lay-off in May 1937 Howard was a permanent employee on the
baler press in the old linter room. After the shut-down in June
and July 1937, however, fewer men were required to operate the new
machinery ; Howard consequently lost his permanent baler job but
was "next in line to be placed on some other job." On August 7,
1937, the respondent sent for Howard, put him to work in the hull
house for about 3 days, and then transferred him to the job of assist-
ing Herman C. Thomas, who had replaced Howard as the permanent
employee on the baler press in the rebuilt linter room. Howard's
functions were to sweep lint scattered around the press, clean the
floor, and help Thomas rebale cotton from bales which had burst.
While so employed, on about August 12, 1937, Howard joined the
A. F. of L. and was thereafter "very active" in its affairs. On
August 21, 1937, he wore his union button for the first time at the
558 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
plant; that afternoon Crossno told him there was no further work
for him to do. Howard testified that he believed his position was
permanent, that he was not told it would be .temporary when he was
hired on August 7. On the other hand, Crossno testified that this
employment was temporary, a "special job" of cleaning up hut which
had gathered around the baler press, that it had been completed, and
that no one had replaced Howard in this work. It is undisputed
that several other employees were laid off at about this time because
their work had been completed. Under the circumstances, we find,
as did the Trial Examiner'14 that Howard was given only temporary
employment on August 7 and that he was laid off as a routine matter
on August 21 when the work for which he was engaged was
completed. _
However, the Trial Examiner found that by failing to reemploy
Howard for temporary work thereafter, the respondent discriminated
against him because of his union activities, and he recommended
that Howard be placed on a preferential. list for reinstatement when
the respondent has need for his services. The record shows that
union buttons were generally worn at the plant in the fall of 1937,
that Howard joined the C. I. O. in January 1938, that after his lay-
off on August 21, 1937, he applied for work a number of times until
a few weeks before the hearing but was told that no work was avail=
able, that temporary jobs are usually filled by selection from among
applicants present in the yard of the plant, and that Howard did
not remember anyone being employed while Howard sat in the yard.
The respondent admits that Howard's services were satisfactory and
contends that he would have been reemployed had there been an
opening for him when he was available. In fact, during the course
of the hearing, after Howard signified his willingness to accept
temporary work then available at the plant and had applied therefor,
he was employed at such work by the respondent. Under all the
circumstances, we are not satisfied that Howard was refused reem-
ployment because of his membership or activity in any union.
Eugene Hill had worked for the respondent's predecessor from
December 1934 to April or May 1935. On about October 30, 1937,
he was rehired by the respondent,. as. a seed unloader and worked
satisfactorily. for about 5 weeks until he was laid off, together with
five other persons in a crew of seed unloaders, on about November
27, 1937. Crossno told them that their particular job was finished
and that they would be laid off for either about 10 days or 3 weeks
until a new seed conveyor was built. Although Hill testified that he
was not told his job had been temporary, it seems clear from the
14 No exception was taken to this-finding.
,CALIEIRRM•IA COTTON OIL CORPORATION 559
record that he was engaged for only temporary employment as a
seed unloader. A day or two after his lay-off, Hill became seriously
ill of pneumonia and was not able to resume work until February
1938. While he was ill he wrote to the respondent, inquiring about a
Christmas bonus and stating that lie would return to work as soon
as possible. On about February 8, 1938, and several times thereafter
during February, Hill returned to the plant to seek employment from
Crossno but was unsuccessful. Crossno denied that Hill ever reap-
plied to him for employment. Meanwhile, of the five men who had
been laid off with Hill, four had applied for and received temporary
employment in December 1937, and one on January 8, 1938, and all
were still employed at the time of the hearing.
The Trial Examiner found that Hill was refused reinstatement,
after having been temporarily employed, because of his- union activ-
ities, and recommended that he be placed on a preferential list for
reinstatement when need for his services arose. As stated in Section
III A above, when Hill was employed in October 1937, he told
Crossno that he was a member of the A. F. of L. and Crossno hired
him after Hill promised not to wear a union button at the plant.
Thereafter, Hill reported this conversation to Prior and attended
meetings of the A. F. of L.,' but never wore his union button. On
January 7, 1938, he joined the C. I. 0., but so far as he knew the
respondent did not learn of his change in union' affiliation. The
record shows that each of the five men who were laid off with Hill in
November 1937 were also members of the A. F. of L., and Prior
testified that several of them were quite active in the union. All
were rehired at a time when Hill was unable to work due to his
illness. Although three new -men were hired as temporary employees
after February 1938, when Hill recovered from his illness, the evi-
dence does not indicate what positions they. filled or whether Hill
was qualified or present to fill any of them. In the light of these
facts, we are unable to conclude that Hill was refused reemployment
because of his union membership or activity.
Pleas Taylor was discharged on February 2, 1938, and subsequently
refused reemployment by the respondent. The Trial Examiner found
that Taylor was discharged for reasons other than his union activities
and recommended That the complaint be dismissed as to Pleas Tay-
lor. Neither the A. F. of L. nor the C. I. O. filed exceptions to the
Intermediate Report. We have reviewed the evidence and agree
with the finding of the Trial Examiner. Accordingly, we find that
the respondent did not discriminate in regard to the hire and tenure
of employment of Pleas Taylor, and we shall, therefore, dismiss the
complaint in this respect.
Marcellus Hamlin began to work for the respondent's predecessor
in 1933 or January 1934, and for the respondent on May 1, 1935.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to his final lay-off on May 12; 1938, Hamlin had been working
steadily for over 11/2 years, except during the period of the plant
shut-down in June 1937. With the exception of the first 2 weeks,
Hamlin worked at different positions in the meal room during this
time and was considered a permanent and satisfactory employee in
that department.
Hamlin joined the A. F. of L. in June 1937, thereafter wore his
union button, a fact noted by Crossno, attended union meetings, and
was active in the A. F. of L.'s organization plans. As stated above
in Section III A, Hamlin spoke in defense of the A. F. of L.'s pro-
gram at the meal-room department meeting called by Coberly Sr. in
December 1937, and was the only employee in the department who
refused to accede to Coberly Sr.'s wage proposals without first con-
sulting the A. F. of L. In January 1938, Hamlin joined the C. I. 0.,
thereafter attended three committee meetings and aided the C. I. O.
organizer in contacting some of the employees.
On May 12, 1938, about 5 months after the meal-room incident,
Crossno told Hamlin and another meal-room employee, Cornell
Thornton, that he would have to lay them off, that their jobs were
"automatically cut out," and that "the axe fell and I guess it cut you
two boys." Crossno gave the two men a letter of recommendation,
and suggested they look elsewhere for jobs since there would be no
further work in the plant that fall, although if they were needed he
knew where to find them. Crossno testified that the men were laid
off because the installation of a new set of scales and the repair of
certain other machinery in the meal room had eliminated the need for
2 of the 11 meal-room employees. In selecting those to be laid off,
Crossno, although admitting that Hamlin was a satisfactory worker,
stated that he considered, in addition to length of service, the type
of work done and the qualifications of the men in order to retain the
most suitable workers.15
The work previously done by Hamlin, catching sacks of meal from
a chute and loading them on trucks, was continued by George Web-
ster, who had begun to work for the respondent on October 17, 1937,
and had also, in November 1937, joined the A. F. of L. and attended
its meetings regularly. He was not a member of the C. I. O. ` Rich-
ard Smith, another meal-room employee who was retained although
he had less seniority in the plant than Hamlin, was first employed by
the respondent's predecessor in October 1934, joined the A. F. of L. in
August 1937, and was, according to Prior, an "ordinary member."
Thornton, who was laid off with Hamlin,. had begun to work for the
'6IIamlin testified that only one meal-room position was eliminated by the change in
scales, but we are persuaded by the testimony of Crossno and Coberly Jr. that two posi-
tions were in fact eliminated at that time.
CALIFORNIA COTTON OIL CORPORATION 561
respondent in October 1937, joined the A: F. of L. in that month,
wore his union button, and was, according to Prior, an "ordinary
member." After his lay-off, Thornton was temporarily reemployed
two or three times by the respondent, at which times he continued
to wear his union button, and was working at the time of the hearing.
Since May 1938, the respondent has filled one permanent position in
the meal-room department, but the record does not indicate the
seniority record or union affiliation of this employee.
About 3 or 4 weeks after his lay-off in May 1938, Hamlin was
summoned by the respondent and offered a temporary cotton-sam-
pling position, to last 2 or 3 days. Hamlin refused the offer because the
employment would prevent him from receiving relief money for which
he had applied. Thereafter Hamlin did not apply for employment
at the plant, nor was he recalled by the respondent. Crossno testi-
fied that if an opening were available for which Hamlin was quali-
fied, the respondent had no objection to his reemployment. In the
light of all the circumstances, we are not satisfied that Hamlin's
lay-off in May 1938 was motivated by his union membership or
activity .
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities, of the respondent set forth in Section III A above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
them in Section 7 of the Act. We shall order the respondent to
cease and desist from such interference, restraint, and coercion, and
to take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the, foregoing findings of fact and upon the en-
tire record in the cases, the Board makes the following :
CONCLUSIONS OF LAW
1. Edible Oil Workers Union, Local 21569, and International Long-
shoremen and Warehousemen's Union, Local 1-60, are labor organ-
izations, within the meaning of Section 2 (5) of the Act.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
3.. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and .(7) of
the Act.
4. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, California Cotton Oil Corporation, Vernon, California, and its
officers, agents, successors, and assigns shall :
1. Cease and desist from in any manner interfering with, restrain-
ing, and coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their -own choosing, and to
engage in concerted activities, for the purposes of collective bargain-
ing or other mutual aid and protection, as guaranteed in Section 7
of the National Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Immediately post notices in conspicuous places at its Vernon,
California, plant, and maintain them for a period of at least sixty
(60) consecutive days, stating that the respondent will cease and
desist in the manner above set forth, that its employees are free to
become or remain members. of Edible Oil ,Workers Union, Local
21569, or International Longshoremen and Warehousemen's Union,
Local 1-60, and that it will not discriminate against any employee
because of membership or activity in those organizations;
(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 has taken to comply herewith.
AND IT Is .FURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (3) of the
National Labor Relations Act.