Osceola Farms Co.

National Labor Relations Board - Board Decisions

Mar 13, 1963

141 N.L.R.B. 458 (N.L.R.B. 1963)

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 1961, criticizing the handling of funds in the benevolent association. I
have previously found that at the January 1962 meeting, Lewis did not make state-
ments to the membership , encouraging or inviting them to visit physical harm
on Pond and Link. Pond's admission that the first thing Jenkins said to him was
that Pond had been talking about him , is consistent with Jenkins ' version and is
one of the factors tipping the scale in his direction Also significant is Pond's ad-
mission that Jenkins did mention something about Pond's claim of loss of clothing,
although according to Pond it was in a different context. The General Counsel
argues in his brief that he is sure that "many things are said in this dressing room on
the 30 or 40 occasions annually when clothes are missing " without provoking "an
incident similar to what occurred to Pond." But, as Jenkins himself testified,
while there was nothing unusual about an employee complaining about his clothes
being stolen , it was unusual for anyone to accuse Jenkins of stealing.
Upon consideration of all the foregoing , the fact that I have already previously
discredited Pond , and the demeanor of the witnesses who testified on this issue, I am
convinced and find that Pond did remark that Jenkins probably stole his clothes,
or words to that effect , that Landreth and Kastner overhead him and reported the
accusation to Jenkins , that whatever Jenkins may have said or done to Pond was
prompted and solely motivated by the report of this accusation , and that the con-
troversy was one entirely of a personal nature. I will accordingly recommend the
dismissal of the allegation concerning this incident.
CONCLUSIONS OF LAW
1 Brewers and Maltsters Local Union No. 6, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
2 Robert Lewis is an agent of the aforesaid labor organization within the meaning
of Sections 2(13) and 8(b) of the Act.
3. Respondents , Local Union No 6 and Robert Lewis, have not engaged in conduct
violative of Section 8(b) (1) (A) of the Act, as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case , I recommend that the complaint be dismissed in its
entirety.
Osceola Farms Co. and United Packinghouse , Food and Allied
Workers , AFL-CIO. Cases Nos. 12-CA-2404 and 12-CA-.439.
March 13, 1963
DECISION AND ORDER
On January 2, 1663, Trial Examiner A. Norman Somers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel and the Respondent filed exceptions to the
Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its power in connection with these cases to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
141 NLRB No. 41.
OSCEOLA FARMS CO. 459
mediate Report, and the entire record in these cases, including the ex-
ceptions I and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
'In view of our dismissal of the complaint herein, we find it unnecessary to pass upon
the Respondent's contention that the Trial Examine, erred in finding that Rene Maestie
was a supervisor within the meaning of the Act.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was heard before Trial Examiner A. Norman Somers, in Belle Glade,
Florida, on October 24 and 25 , 1962 , on the consolidated amended complaint of
the General Counsel (hereinafter referred to as the complaint ) and answer of
Respondent.' The issues were whether the discharges of three-named employees
were discriminatorily motivated , in violation of Section 8(a)(3) and ( 1), and
whether Respondent invaded the protected rights of employees in other respects,
in violation of Section 8(a)(1) of the Act.
The parties waived oral argument , but the General Counsel and Respondent
filed briefs , followed further by a reply brief filed by Respondent pursuant to leave
specially requested and granted , and, also, pursuant to similar leave a responding
brief thereto filed by the General Counsel-all of which have been carefully con-
sidered . Upon the entire record ( as corrected with due notice to all parties), and
upon my observation of the witnesses , I hereby make the following:
FINDINGS OF FACT2
1. THE BUSINESS OF THE RESPONDENT
Respondent , Osceola Farms Co., is a Florida corporation , with its principal office
and place of operation in Pahokee , Florida. There it is engaged in planting , growing,
harvesting , and milling sugar cane into raw sugar . Respondent admits that during
the past 12 months, it sold and shipped to points outside the State finished products
valued in excess of $50,000. There being no showing to the contrary , the applicable
presumption is that the figure thus conceded is representative of Respondent 's oper-
ations. It is accordingly found that Respondent operates in commerce and in a
business affecting commerce within the meaning of Section 2(6) and ( 7) of the Act,
and to an extent meeting the Board 's self-limiting standards for the assertion of its
jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
United Packinghouse , Food and Allied Workers , AFL-CIO, hereinafter referred
to as the Union , is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues as joined
The complaint alleges that the discharges of Gustavo Castillo and Glover Riley
Deas, Jr., occurring on July 30, 1962, and of Fabian Zaballa occurring on August 17,
1962 , were discriminatorily motivated in violation of Section 8(a) (3) and ( 1) of the
Act. The motive thus imputed is based , in the main, upon alleged conversations
with employees on the part of the two highest supervisors and an alleged minor
one expressive of hostility to the Union , and as further claimed , having a coercive
import independently violative of Section 8(a)(1). The conversations are cate-
gorically denied by the two higher functionaries. The alleged supervisor (whose
supervisory status is disputed ) was not in Respondent 's employ at the time of the
' In Case No. 12-CA-2404 , the charge was filed July 17, 1962, and a complaint issued
September 7, 1962 In Case No 12-CA-2439 , an original charge was filed on August 23,
and an amended one on October 4, 1902 On October 10, 1902, the two cases were con-
solidated , and the consolidated amended complaint issued , which is the one on which
the contested issues herein were joined
2 Respondent has submitted proposed findings and conclusions , which are adopted only
to the extent consistent with those set forth in this report
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing, and did not testify. As to the discharges, Respondent ascribes them to
purely operational motivations unrelated to the Union.
B. The evidence
1. The alleged antiunion conversations preceding the discharge
On June 4, 1962, the Union held a meeting at the Women's Clubhouse at
Pahokee. Among Respondent's employees present were Castillo, Deas, and Zaballa,
the three dischargees, and also Navarro, an employee who since quit, all of whom
signed cards .3 Castillo, Deas, and Navarro testified to having , within the span of
a week after the meeting, been interrogated by Rafael Fanjul, manager of the
enterprise, and Mario Ullivarria, the mill engineer (hereinafter referred to by his
first name , the more frequent mode of reference to him at the hearing ). Castillo
implicated them in nothing else, his testimony being that "days apart" after the
meeting, he was interrogated separately in the same manner by Fanjul and Mario
in a sequence he did not remember, and that in each conversation his interrogator
asked why he had signed, and, on his answering that this was his right as an em-
ployee, told him he was an "old employee" and there was no need for him to join.
Deas and Navarro testified to more than one conversation with Fanjul and Mario,
and of a broader scope than Castillo's. Deas testified that his first conversation was
about 2 or 3 days after the union meeting, at Engineer Mario's office at the mill.
There, with Manager Fanjul listening but not talking, Mario, Deas testified, asked
him if he "belonged to the Union," and when he answered yes, asked why; that Deas
ascribed it to rights to a "say-so in our things," "seniority," and a desire for "protection
at work," whereupon Mario told him he "had a job as long as [he] wanted" but
"had made a bad mistake to sign the Union card."
Deas testified that he had another conversation with Engineer Mario about the
Union "a couple of weeks before [his] discharge [of July 30]." This was after
Mario had spoken to him and his two coworkers on the roof (consisting of com-
plainant Castillo and John Miller, a noncomplainant) about the falling of a zinc
tile handled by them while they had been working on the roof (discussed later), in
which there was no reference to the Union. The conversation about the falling of
the tile was also about 2 weeks before the discharge. Deas later placed the second
conversation dealing with the Union as a "week or two" after the conversation
concerned with the zinc tile, so it would be some indeterminate period in the 2-week
interval between the tile incident and his discharge . Deas testified that the second
union conversation , like the first , was in Mario's office in the mill, with Mario talking
and Fanjul listening ; that Mario asked him if he "was continuing to have activities
in the Union," and "if [he] was on the Committee" (referring to the organizing com-
mittee to which he had been elected at the meeting on June 4, supra, footnote 3);
that "he told me I was still making a mistake about the Union and might be subject
to discharge." 4
Navarro, the employee who quit, testified that the morning after the union meeting
of June 4, Engineer Mario asked him if he had signed a union card, and on receiving
an affirmative answer, told him he "knew what he was doing," but that he wanted him
to talk with Manager Fanjul; that Fanjul in his office told him that "little by little
the Union was going to eliminate us [the Cubans], that they were going to benefit the
Americans"; that Fanjul then gave him a paper to sign, written in English, explaining
its purport as being that "the Union was making me sign that paper (the card)"; that
Navarro said he could not truthfully affirm such an assertion, and Fanjul told him to
"think it over, that I was an old employee and I would not need the Union."
Some time later, Navarro testified, Fanjul in passing him while at work, put his
hand on his shoulder, informed him that 11 employees had signed the paper but he
had not done so, whereupon Navarro asked not to be called into the office about it
again 5
3 An employee organizing committee was chosen , which included Deas , apparently the
only non -Latin of the General Counsel 's witnesses, and Zaballa, elected as vice chairman,
and who, being conversant with English and Spanish , also acted as an interpreter.
Castillo had been one of the organizers of the meeting.
4 On cross -examination, Deas was not clear as to whether he claimed that apart from
the meeting concerned with the falling of the tile , he had two or three meetings with
Mario relating to the Union. On direct, he testified to but two union conversations, and,
so far as appears , no more than the two were described
5 In that connection, he testified, as the interpreter put it, "I had talked before that
to Mario Ullivarria, before that I could not sign the paper" The only such prior re-
fusal to which he had specifically testified (apart from one which occurred with his
OSCEOLA FARMS CO. 461
Navarro further testified that in referring to the paper, Fanjul said he would "kick
out the principal members of the Union," and that then "I mentioned a few names
like Zaballa, Castillo, two or three more that I don't remember, and then he said that
he would put out the principal ones." On cross, to the roster of names thus specifi-
cally mentioned, he added Deas and another employee called "the Cable," who does
not otherwise figure in the case.
On direct, I asked Navarro to clarify the expression "put out," and he explained it
as meaning that "if we, for example, signed to the Union, the Union was going to
work exclusively only with Americans, then they were going to put them out. That
is exactly what he said, from the work, to put Americans in their job." This vests the
statement attributed to Fanjul with a meaning more in line with the kind of appeal
the witness ascribed to him in the first conversation Yet, on cross, the witness again
imputed to Fanjul an outright threat to discharge, at least in reference to Castillo,
about whom alone he was asked on cross.
There were, indeed, considerable difficulties encountered in consequence of the
volubility of the witness and certain imprecisions in interpretation (see, e.g., supra,
footnote 5). But the witness' answer to my question, otherwise unexplained, cannot
be ignored, and so a rational reconciliation of the two parts of his testimony concern-
ing the "put out" threat ascribed to Fanjul would require construing it as being sub-
stantially to the effect that if the Union got in, it would, in the manner allegedly stated
by Fanjul in the earlier conversation, demand the replacement of Cubans by Ameri-
cans and that Respondent would "put out" the former in compliance therewith .6
Navarro also implicated one person other than Fanjul or Mario. This was in a
single conversation he testified he had with Rene Maestre, whom he identified as his
"boss," from whom he received his assignments, and who, for the reasons stated
below, is found to have been a supervisor?
Navarro testified that Maestre too told him about a paper which 11 men had signed
and that if Navarro signed it, he "would be in a solid way and guaranteed in the
company."
As stated, Maestre, whose employment with Respondent ceased some time before
the hearing, did not testify. But Manager Fanjul and Mill Engineer Mario, without
qualification, denied having had any conversation, whether separately, or together,
with any of the implicating witnesses even remotely concerned with the Union. On
supervisor, Maestre, to be detailed later ) was in his first conversation with Fanjul
Neither side asked him to clarify the reference to Mario, but in bridging the recital of the
conversation with Fanjul , culminating in the "think it over" admonition with the second
conversation , lie testified, according to the interpreter , "In that way they called me several
times with problems that I don ' t remember ." No clarification was sought from the witness
of the "they" or of the expression "problems ," nor was the interpreter asked to clarify
that expression in relation to the idiom of the original.
8 Further , on cross, Navarro was asked if it was lie or Fanjul who mentioned the names
of the employees , and this time he testified he did not recall The witness on his own
did not, nor was lie asked by either party to explain, how the names came to be men-
tioned. On cross, counsel for Respondent called attention to a statement in the witness'
pretrial affidavit that Mario did not ask him who also had signed But the witness in
his testimony ascribed no such inquiry to Mario, and the names were mentioned , accord-
ing to his testimony , only in his alleged second conversation with Fanjul.
4 Maestre was classified as "boiler maker." He was a salaried man, responsible for
making machinery or other apparatus in accordance with plans given him by either Mill
Engineer Mario or Chief Engineer Casablanca. He executed this task with a crew of
mechanics , helpers, and welders (Navarro being one of the latter ), ranging from 6 to 15,
the discretion concerning the allocation of the work being his . Fanjul testified Maestre
"exercised independent judgment in the assignment of the work to the employees who
could best do the job ." He so testified at the outset of the hearing when called by the
General Counsel as an adverse witness under Rule 43(b). The next day, as a witness for
Respondent , he qualified this by stressing that Maestre had no discretion to change the
engineers ' plans and that the choice as between welders, mechanics , etc., inhered in the
nature of the plans , with him making the assignments "in routine fashion " On cross,
he finally admitted that Maestro ' s function included his making his own decision as to
how to apportion and assign work among employees in a given category , whether welders
or mechanics . Maestre thus had the responsibility for the crew ' s turning out the machinery
in conformity with the plans , and as an adjunct thereto, breaking down the work and
assigning it on the basis of his own independent evaluation of the men 's capacities. This,
taken in connection with such relevant items as his being on salary, and-if Navarro's
case is typical-his being regarded by the crew as the "boss ," brings him within the
category of a supervisor within the meaning of Section 2(11) of the Act.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the score of its general attitude, Respondent elicited from Gallicio Paez, a witness
called by the General Counsel on another matter, confirmation of a statement in a
pretrial affidavit of his to the effect that Fanjul, in addressing the employees in July.
told them they had the right to join the Union or not, as they wished, and Respondent
would not discharge employees if they did join; and in August, informed them that
"inspectors (Board agents) were coming" and he wanted them to tell only the truth 8
2. The discharges of Deas, Castillo, and Zaballa
a. The claim in respect to certain temporary assignments of Deas and Zaballa prior
to the discharges
Deas and Castillo were discharged on July 30, following an accident in which a
third employee working with them was injured; and Zaballa was discharged on
August 17, 2 days after an alleged quarrel with a fellow worker. The General Coun-
sel claims that previous temporary changes in assignments of Deas and Zaballa
made shortly after the union meeting of June 4 shows a preexisting discriminatory at-
titude toward them because of their prominence in the Union Deas was taken off
his roofing job and assigned to removing what he described as "grease" from certain
machinery; and Zaballa, a millwright, was assigned, for 5 or 6 weeks, to repairing
machinery outside the plant building, he having theretofore, as he testified, worked
only in the interior.
Respondent explained its action in respect to Deas as occasioned by the need for
temporarily replacing an employee who had just been discharged, and that this lasted
but 5 working days (not 3 to 4 weeks, as Deas testified), during which, as Deas
admitted, the roofing work had been suspended; after this he went back to roofing with
additional hazard pay for that kind of work. In the case of Zaballa, the repair
work to which he had been assigned was within the line of his duties as a millwright
or first-class mechanic, which included repair of machinery.
Nothing in the record impugns the explanation for the assignments as made, and I
find no warrant for the adverse inference which the General Counsel asks to be read
into this action, whether taken singly, or in context with the remainder of the case,
however all other conflicts in respect thereto should be resolved.
b. The discharges of Deas and Castillo
The discharge of Deas and Castillo, on July 30, came in the wake of an accident
occurring July 27, in which Johnny Miller, the third in that crew of three roof work-
ers, fell and was seriously injured. Two weeks earlier, while the same three were at
work, a zinc tile handled by them fell to the ground grazing an employee below, who
might have been seriously, and perhaps fatally, injured if it had struck him directly.
Mill Engineer Mario had the three brought to his office and it is conceded that he
8In view of a characterization in Respondent's brief given to the Geneial Counsel's
action in the matter, I deem it incumbent to recite the circumstances As a witness
called by the General Counsel, Paez had testified, on direct, concerning a circumstance
relating to the discharge of Zaballa When Paez' direct examination was completed,
Respondent made the usual demand for the witness' pretrial affidavit for use on cross
The General Counsel indicated that the witness had given two such affidavits, one after
Zaballa's discharge and relating to that event, and the other given before that occurrence,
during the investigation of the earlier of the two consolidated cases, and unrelated to
Zaballa's discharge The General Counsel stated he had no objection to making available
to Respondent the affidavit dealing with the subject matter of Paez' testimony, as given
on direct, but contended for a construction of the applicable provision of the Board's Rules
and Regulations (Section 102 118) as not requiring him to produce the earlier affidavit
because it did not deal with that testimony, and he offered to have me inspect the affidavit
in verification of his assertion. Refusing the proffer, I overruled his objection, holding
that the breadth of the language of the section, entitling a respondent to production, after
direct examination, of "any statement of [the] witness in possession of the general
counsel," did not permit of the narrow construction he proposed, at least in regard to
one procured in the investigation of the same case, and, accordingly, I directed lie make
both statements available to Respondent's counsel. The General Counsel accepted the
ruling and complied with the direction. In its brief, Respondent, in characterizing the
General Counsel's actions, uses the term "suppress " The imputation inherine in that
term, whatever its intent, is unwarranted Government counsel made full disclosure of
the existence of both affidavits, and submitted his legal position for a ruling, which,
though adverse to him (on a question not altogether an open and shut one), lie accepted
and honored.
OSCEOLA FARMS CO. 463
sharply admonished them for the occurrence and cautioned them to be "more care-
ful." Deas and Castillo denied Mario also warned them they would be discharged
if such a thing happened again; and Mario corroborated by two employees on that
score, testified he explicitly warned them they would be discharged in the event of
another accident. The seriousness of the matter under discussion would indicate
that Mario's admonition was instinct with warning, however articulated.
When the second accident occurred, on Friday, July 27, Manager Fanjul sent
Deas and Castillo home, without then discharging them, out of compassionate con-
cern, as he testified, for their overwrought state over the injury to Miller. On Mon-
day, he discharged them, saying that before the mishap he had seen them and Miller
engaging in "horseplay" on the roof. The accident occurred about 2:40 p.m. At the
hearing, Fanjul and Mario testified to having, separately and at different times before
then, seen them engaging in the "horseplay." Fanjul testified that about 1:30 or 1:45
p.m., while having lunch, he had seen Deas "waving his arms" and Miller "prancing
on the roof," and that after finishing lunch, he proceeded from his office toward the
mill (about 450 feet distant) to get them off the roof and fire them because "what
they were doing was dangerous and irresponsible," but that he was sidetracked by a
summons from the board of directors to go with them to the canefield, and that 20
or 30 minutes later he was informed of the accident to Miller.
Mario testified that about 2.30, he was on his way from the main office to the
mill, accompanied by Artemio Gonzalez, the timekeeper; that when he was about 175
feet from the side of the building where the accident occurred, he saw the three
roofers on the 23 ° slope of its tower, and that Deas was "squatting" [indicating a
deep knee bending position with arms outstretched], which "got [him] kind of dis-
gusted, because I thought he was making signs at me"; and that when he got to the
office, Deas came in excitedly telling them, "Johnny fell down, Johnny fell down.
Get an ambulance."
Miller, who is still under doctor's care, did not testify. Deas and Castillo denied
there had been any "horseplay," and stoutly maintained they had been attending
strictly to their work; they testified that the slope on the roof was a steep one and
with no protective facilities they would not have dared to engage in horseplay; that
when the accident happened, it had begun to rain, and they were preparing to come
down; that they had just completed drilling and laying down a piece of tin; Castillo
was then on one side and Miller and Deas on the other, or steep, side; that Deas, as
the latter testified, looked back and saw Miller leaning on the machinery and "next
thing I knew his feet had slipped out from under," after which he shouted for Castillo,
but he was beyond reach when they got to him.
Timekeeper Gonzalez testified he was with Mario when, "three or four minutes at
the most" before the accident, they saw the boys gesturing, and Mario remarked to
him that the boys "were working so carelessly that they will fall from the roof "
His description of their actions, as ultimately given on cross, was: "They were
gesturing with their arms, so I figured they were talking "
Considering the admitted failure of Mario or Fanjul to warn the boys of the
dangerous conduct they assertedly saw, Mario with no explanation therefor, and
Fanjul on the basis of a claimed business exigency, which does not explain his failure
to act before completing his lunch and in any event is a rather strange detergent to
spontaneously taking the preventive measure which the dangerous conduct he as-
sertedly saw would have expectably evoked, and Gonzalez' description of what the
conduct came down to, one is rather forced to conclude that the conduct they
described-at best to them-is the product of hindsight impression.9
Granted the above, the accident itself was a sufficiently serious matter, which,
coming so soon after a prior mishap, with potentially fatal consequences avoided by
the providential matter of a fraction of an inch could impel management to con-
clude that it had enough: that here was an accident-prone crew, who were a hazard
to their fellow employees and themselves, particularly taking into account Castillo's
special responsibility as the roofing mechanic to whom the others were helpers and
a record of three earlier injuries to himself within a span of 9 months, a matter cov-
ered by a published rule to the effect that "three personal injuries or accidents through
carelessness in one year may be grounds for discharge." While I am less than im-
pressed with the effort to attribute Deas' discharge additionally to his having been
found by Fanjul some 7 months earlier asleep near a bin-an offense never repeated
9 Respondent's counsel, on cross-examination of Castillo, at first suggested that the
squatting (of the kind later described by Mario) had been done by Miller He later sug-
gested that it was Miller or Deas Castillo denied that either had squatted Also, on
the day of the accident Mario, as he admitted, did not tell Fanjul about the squatting ;
nor, so far as appears, did Fanjul tell Mario about the prancing.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or having barred him from later assignment to higher paid work-the hard core of
merit in Respondent's case inhering in the succession of two serious accidents oc-
curring in close proximity entitles it to the presumption arising therefrom that it
acted exclusively in the interest of insuring the safety of its staff and of the persons
involved. This presumption is not overcome by the stated infirmities in the case
relied on by the General Counsel, which I have fully considered. Nor would my
conclusion be changed even if the dispute-still open-over whether Respondent
engaged in the predischarge activity ascribed to it were to be resolved in the General
Counsel's favor.io
c. The discharge of Zaballa
This case presents some significant points of difference with the two just discussed.
Earlier reference has been made (supra, footnote Z) to Zaballa's role as vice
chairman of the Union's organizing committee and interpreter between the English
and Spanish speaking employees. Manager Fanjul admitted Respondent knew of
Zaballa's organizing role in the Union.
In contrast with the serious incident involved in the discharges of Castillo and
Deas, the immediate cause of Zaballa's discharge was a quarrel 2 days earlier with a
fellow employee. In further contrast with the preceding cases, Zaballa's discharge
came without prior warning or expression to him of dissatisfaction with his perform-
ance-a fact which tends to undermine the credence of Respondent's attribution of the
discharge additionally to a series of incidents in manifestation of a cantankerous dis-
position affecting Zaballa's working relationship with his fellows and superiors. This,
Respondent asserts, was the basic reason for its action, and the quarrel with the
employee its illustrative culmination.
Zaballa, obviously a strong personality, may well have been cantankerous, but his
work history rather indicates that Respondent had deemed this trait more than over-
come by his value as an acknowledged master of his craft. He started with Re-
spondent in April 1961. A month later he was made a millwright at a raise in hourly
rate. Then, during the 3 months of the grinding season, he was a mill foreman at a
still higher rate. After an ensuing seasonal layoff, he was called back April 2, at
his regular millwright's position, at the rate highest in its ranks, which he held until
his discharge. A measure of the overall value Respondent placed on Zaballa's
services rather appears in an item it now cites to his detriment In February 1962,
he had a difference with Assistant Engineer Battista, and handed in his resignation,
only to be asked to stay on; and thereafter, as stated, following the short seasonal
layoff, Respondent called him back in April.
Engineer Mario testified that "although he was a skilled man he had a bad habit
of always talking back to any kind of assignment he was given." The one such
instance cited was in July 1962, when, according to Mario, Zaballa said he thought a
certain repair job should have been assigned to the employee who had done the dis-
mantling, that ground-laying step having been performed inadequately, as he saw it.
Zaballa denied he resisted the assignment. But assuming the reverse, if management
took umbrage at what, on Mario's own version, would appear to have been the
voicing by an acknowledged craftsman of an understandable aversion to assuming
responsibility for a job which, according to his lights, had been inadequately pre-
pared for by another, there is no indication of it having been communicated to
Zaballa either then or at any time during his tenure.
Mario cited two other matters-one in April or May, involving the rigging of a
roller, in which, Mario testified the cables were faultily supported, so that they
loosened and the roller fell 5 feet to the ground, piercing the floor of the mill; and
the other, on Zaballa's last job, in August, in which Mario testified the supporting
blocks for a trash bar constructed by Zaballa were made one-half inch narrower than
specifications, so they had to dismantle and redo the job These items would seem
to go to Zaballa's competence in his craft-about which Mario, in prefacing his
recital of the incidents, said there was no dispute. Zaballa testified he was never
blamed for either the roller incident or the trash bar construction, the fall of the
roller, he testified, being due to defective cables (which Mario disputed with testi-
mony that the cables are still in use), and that the trash bar was under construction
and not yet completed by him when he was discharged, so that there was not-as
there could not-have been any discussion of that with him during his employment.
If. in the difficult task of evaluating conflicting self-serving assertions by opposing
litigants, the adage that "actions speak louder than words" plays a legitimate role, as
10 Also considered is the fact that Miller is still on the payroll. But he is still In-
capacitated, and one can understand the special exigencies of Respondent's situation in
respect to him.
OSCEOLA FARMS CO. 465
it would appear to do," then the admitted silence of Respondent concerning these
matters, separately when they occurred or retrospectively during their alleged
accumulation, would seem to speak more tellingly than Respondent' s post litem
assertions of its concern over them.
Mario's testimony as to the timing of the discovery of the alleged defect in the
trash bar job was featured by a vagueness tending to cast grave doubt on whether
the asserted inspection and discovery occurred before the discharge. He testified,
"This happened in the time when we discharged Zaballa. In other words, right at
the time when he got through with the job and we went to inspect that, it wasn't
done right." No explanation is given as to what the occasions was to inspect, prior
to Zaballa's discharge, a job he was still working on. Had the inspection been made
before the discharge, one would have expected some talk with Zaballa about it before
his dismissal. None is claimed. The inspection thus either took place after the
discharge, or if done before, then it was manifestly without Zaballa's even knowing
about it. In that case, it was done with a secrecy corresponding to the covertness of
the inquiry into the quarrel with Paez.
The investigation of Zaballa's interchange with Paez was undertaken without any
complaint about it by Paez and with no inquiry from either of them, as the principals
involved,^concerning what happened. The one employee produced by Respondent
as witness to the incident (Francisco Fandino), when asked on direct whether he had
"report[ed] this argument to Mario Ullivarria," answered, "The following day, the
engineer knew about this and he asked me and I told him what I knew." And when
Paez, on learning that Zaballa was discharged because of the quarrel, went with
Zaballa to Engineer Mario to proffer his explanation in exoneration of Zaballa, he
was curtly, and indeed angrily, rebuffed.
The above would seem to have rather recognizable hallmarks of a quest undertaken
to justify a predetermined result. Confirming this would seem to be the character
of the discharge interviews which preceded the rejection of Paez' overture on Zaballa's
behalf. On August 17, when Zaballa reported to work, he was called in by Mario and
brought to Fanjul's office. There, in the presence of Mario and Assistant Engineer
Battista, Fanjul, Zaballa testified, told him that he was being discharged because he
was "hav[ing] difficulty with the other employees"; when Zaballa indicated he did
not know what this referred to, Fanjul stated he had "trouble" with Gallicio Paez;
when Zaballa resisted the significance sought to be attached to the occurrence, Mario
told him he had "snatched" tools without permission, at which Zaballa expressed sur-
prise, and heatedly stated that he had always borrowed needed tools with the permis-
sion of Assistant Engineer Battista or whoever had them, whereupon Mario abruptly
cut off that discussion; Zaballa returned to his workplace to inform his brother of his
discharge, and at this point, Paez, learning he was named as the cause, went with
Zaballa in his unsuccessful effort to explain the event to Mario.
Fanjul, on the other hand, testified that in the discharge interview, he went down
the line reciting every item previously discussed, going as far back indeed as the inci-
dent of February with Battista (where management did not accept Zaballa's proffer
of resignation and called him back after the ensuing seasonal layoff), through the
matters which were the subject of Mario's testimony, and, still more, that Zaballa had
been looking for a job elsewhere. Supporting Zaballa's version-apart from the con-
ventional significance of the absence of a corroborating account of the interview from
Battista or Mario-is the prominence with which Fanjul vested the Paez incident dur-
ing his previous day's testimony as a witness called by the Government under Rule
43(b). A comparison of his two testimonies concerning it shows a variance remi-
niscent of his two testimonies concerning Maestre's supervisory function previously
discussed (supra, footnote 7). On his first day on the stand, he made the same gen-
eral statement about Zaballa's not getting along with others, which Zaballa attributed
to Fanjul at the outset of the discharge interview. Fanjul then testified that "the main
reason why we fired Mr. Zaballa was about 2 days before he was fired, he had an argu-
ment with his fellow worker, Gallacio Paez." On the second day, after Zaballa and
Paez had given their testimony, Fanjul testified the Paez matter was the "last straw"
in a "cumulati [on of] incidents . . . having to do with [Zaballa's personality defi-
ciencies]," and that he recited to Zaballa seriatim every incident now relied on,
beginning indeed, with the difference in February 1962 with Battista down to his quest
for another job in August. As to this last, although Zaballa, on cross-examination,
admitted that he had indeed been looking for another job , Respondent then made no
suggestion that this matter had been stated to him as a reason for the discharge during
the termination interview, as it had suggested in regard to the other reasons.
Il See St Louis Independent Packing Co ., Division of Swift & Co. v. N L R B , 291 F 2d
700, 705 (CA. 7) ; The M. H. Rtitzwoller Co. v. N.L.R.B., 114 F. 2d 422, 436 (C.A. 7)
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of the above, insofar as it is given to one, within the scope of his human limita-
tions, to reconstruct an event on the basis of demeanor and the probabilities, vests
Zaballa's version, to me at least, with greater credence than Fanjul's, and his version
is credited. But even if it were as Fanjul described it, the gaping hole in Respondent's
assertion that it truly discharged Zaballa for these matters is that nothing had ever
been said to Zaballa that he was putting his tenure in jeopardy because of them, and
that he should mend his ways-a procedure rather familiar in industrial experience
and hardly alien to Respondent, which its own warning to Castillo and Deas before
their dismissal would indicate.
The statement, even if made, of the reasons for Zaballa's discharge only after the
decision was reached, in the circumstances here disclosed, takes on the attributes of a
ritual to sanctify an accomplished fact. It is rather difficult to reconcile the ex post
facto protestation of concern over the matters advanced as the reasons for the dis-
charge with the failure to have given any objective manifestation of concern over
them when they allegedly occurred, or to apprise the individual involved of the man-
ner in which he was assertedly giving offense, or to have made a demand or even
communicated to him a desire, that he correct it. More particularly is this so when
the first time these matters are mentioned, if at all, is after the severance decision is
made, with no prior opportunity to the employee to state his position regarding them,
or the particular event which is assigned to him as the precipitating cause of the dis-
charge, as to which there was no complaint from or consultation with the one assert-
edly aggrieved by that last event, and whose later proffered explanation in exonera-
tion of the one being discharged for the occurrence is dismissed out of hand.
While all the above cogently indicates a termination of Zaballa for a reason or
reasons other than those intoned to justify it, it does not of itself establish that the
reason is the forbidden one, which the Government contends it to be. This is so de-
spite Fanjul's previously noted admission of Respondent's knowledge of Zaballa's
prominence in the Union. In the absence of a showing of hostility to the Union,
which would motivate the employer to use such knowledge against the employee, the
attribution of an antiunion motive for the discharge solely on the basis of the em-
ployer's knowledge of the employee's role in it (which, in view of the ambiguity of
the record on that score must be presumed to have been acquired at the time most
favorable to Respondent-June) is vulnerable as embodying the post hoc-propter hoc
fallacy, regardless of how unpersuasive the reasons given for the discharge. For
"management can discharge for good cause, for bad cause, or no cause at all"
(N.L.R B. v T. A. McGahey, Sr., et al, d/b/a Columbus Marble Works, 233 F. 2d
406, 412 (C.A. 5) ), "as long as it is not for, or in discouragement of such activities
as the Act makes permissible " (Magnolia Petroleum Company v. N.L.R.B., 200
F 2d 148, 149 (C.A. 5)). A claim that it was indeed for the latter would require a
showing of antiunion hostility, which taken in connection with the facts as a whole,
would warrant an inference that the discharge was motivated by such hostility, carry-
ing more persuasive force than Respondent's denial that this was so.
This, of course, brings us into the still unresolved matter of the conduct imputed to
Respondent before the discharge.
C. The conclusions
1. The predischarge activity
As stated, the testimony given by Castillo and Deas, two of the discharges, and
Navarro, the erstwhile employee who had quit, was categorically denied by Fanjul
and Mario, insofar as they were implicated, the only undenied matter being Navarro's
recital of his alleged conversation with Maestre, his then supervisor, whose employ-
ment with Respondent ceased some time before the hearing. Though Navarro, un-
like the two other witnesses on each opposing side on this matter, was not an inter-
ested witness, his bias, apart from his own union membership, appears in his lingering
sense of grievance over treatment to which he attributed his resignation. We thus
are confronted with the difficult task of resolving a dispute concerning matters typi-
cally "exposed to the sport of fugitive and biased recollection" (L Hand in Art
Metals Construction Company V. N.L R B., 110 F. 2d 148, 150 (C A. 2) ), with no
version from a disinterested source directly dealing with the events.
In such a matter, in the absence of any aid in the form of a direct version from a
disinterested source, one cannot altogether brush aside testimony from a disinterested
source dealing indirectly with the subject involved in the disputed conversations. On
that score, Paez, as previously noted (supra, footnote 8) after giving testimony favor-
able to Zaballa concerning a particular circumstance involving his discharge, later con-
firmed the portion of the affidavit given by him before that event, in which he quoted
Fanjul as having in July assured the employees as a group against reprisal for union
OSCEOLA FARMS CO. 467
affiliation, and of having early in August advised them to tell the Board agents only
the truth (supra, footnote 8). This, insofar as it is indicative of a position taken by
Respondent in dealing with the employees as a group, legitimately bears on an issue
concerned with the imputation to Respondent of a contrary sentiment privately com-
municated to certain employees. All of this is with due allowance for the fact, often
reflected in case lore, that what is said to the employees in a group is not necessarily
the measure of what may be said to them in the privacy of an individual discussion,
where, in the circumstances, they are left with their own word concerning what
happened.12 But this consideration, while qualifying the weight of the indirect testi-
mony, does not nullify its relevance.
The evidence of privately expressed sentiments contrary to those uttered publicly
comes from but three witnesses, two who are interested and one with a bias. This
rather raises the question of why they should have been selected for private interview
as against the numerous others who attended. To be sure, separate appeals privately
made will vary with the individual-such as the absence of anything said to the
mature and strong-minded Zaballa, who, it may be assumed, would likely have made
short shrift of such an overture to him. But on that score, one wonders why
Navarro should have been singled out for the kind of flagrant statements which he
attributed to Fanjul, in contrast with the mild overture to Castillo, as testified to by the
latter, since he provided no less a natural target than did Navarro for appeals based
on fear of discrimination due to nationality. Again, one wonders how a conversation
between Fanjul and Navarro could have reached the point of Fanjul's making an
outright threat, if that is how Navarro's testimony (apart from how he answered
my question that he explain it) is to be construed, to "kick out" the "principal"
supporters, and still more pointedly, to the specific naming of intended victims. As
to this last, as earlier stated (supra, footnote 6), while no explanation was asked
from him, the fact remains that there is no explanation of how this avowed supporter
of the Union, who, on his own testimony staunchly withstood a proposal to repudi-
ate it, could have come to expose its principal proponents in a context of the em-
ployer's threat to "kick" them out. The dilemma in which this inner contradiction
puts the General Counsel's case is that either this witness was less than candid when
he testified to having thus exposed the leading supporters of the Union, or that he
had been playing a duplicitous role, the nature of which he was concealing, thereby
gravely reflecting on his character and reliability.
In weighing the denials of Fanjul and Mario, due consideration has been given
to the discredited manner in which they testified concerning other subjects-such as
their descriptions of the conduct of the boys on the roof preceding the accident which
led to the discharges of Deas and Castillo, and the roster of reasons advanced ex post
facto in explanation of the discharge of Zaballa, including the furtiveness which
preceded it. These matters, bearing materially on the credibility of Fanjul and
Mario, would have had decisive weight in the resolution of this conflict, did the
testimonies of Deas and Navarro, who made the really damaging imputations, hold
together.
It cannot be conscientiously said that the testimonies of these accusing witnesses
did have the inner consistency, which would lead one to attach greater credence to
them than to the officials they were implicating. My reservations concerning Navarro
already have been stated. As to Deas, I found his testimony was confusing, to say
the least, as to the number of union discussions he claimed he had with Mario, and
of the two described by him, most confusing in regard to the crucial item of the
timing of the later one. Nor can I quite see Mario calling him for a second con-
versation concerning the Union, after the one in which he and the other two roofers
were called in for admonition in consequence of the tile incident preceding the
accident which led to his and Castillo's discharge. Coming as it did about the time
that Paez testified the assurance against reprisal was given to the employees as a
whole, it is difficult to visualize Respondent thus patently discrediting itself with
a threat-to him and no one else-in opposition to such assurance. This rather
strikes one as a transposition by the lad of the warning of discharge made in connec-
tion with the zinc incident to the setting of a union discussion. The doubts thus
engendered by his account of an allegedly second conversation, interwoven with
the belated and unamplified suggestion of a possible third, sufficiently reflect upon
his recital of the first, so as to make me unable to vest it with greater credence than
I do the denials.
"E g , Navarro testified that Fanjul before opening the first conversation, sent an em-
ployee out of his office.
708-006-64-vol. 141-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The sum of the above is that I am not more persuaded that the conversations,
testified to by Navarro and Deas did occur than I am that they did not, and this,
in view of the character of Navarro's testimony as a whole, applies as well as to his
testimony concerning his conversation with the departed Maestre, who did not
testify. As to the rather innocuous conversations that Castillo testified he had sep-
arately, but in an unremembered order, with Fanjul and Mario, assuming they could
be a valid subject of remedial treatment if they occurred, the vagueness of Castillo's
testimony, as well as the reasons generally stated in the preceding part of this
discussion, leaves me in sufficient doubt so as to persuade me no more toward the
truth of his testimony than to that of the persons he implicated.
By way of final observation: on a credibility issue in such fine and delicate balance,
one cannot deny some place on the scales to Manager Fanjul's open encouragement
to the employees to tell the Board agents the truth-an assurance less likely to be
forthcoming from an employer with a sense of having something to hide, and in any
event calculated to have produced more than what the Government has offered, if
violations of the kind it claims had occurred.
A careful weighing and consideration of all the testimony accordingly brings me
to the conclusion, here reached, that the General Counsel has not established by a
preponderance of the credible evidence that the conversations testified to by Castillo,
Deas, and Navarro occurred
2. The discharges
The findings above undermine the evidentiary basis for the attribution of an
antiunion motive for the discharges, whatever the doubts raised by the manner
and circumstances in which they were made. In the cases of Deas and Castillo,
my ultimate conclusion would be the same even if I had resolved the conflict concern-
ing the Respondent's predischarge activity the other way. The accident itself, as I
have earlier stated, was serious enough to have raised a presumption of its having
been the motivating cause for the discharge, which would not have been overcome,
in my opinion, by Respondent's discredited effort to vest the defense with greater
than its actual strength or by the antiunion statements, if made. If a motive to find
a pretext to discharge Deas and Castillo for their union affiliation existed, it was
there earlier when the previous accident occurred. Yet at that time, management's
serious view of the first acccident was conveyed to them in unmistakable terms,
however couched. So it would have seemed natural for an employer, after the
shortly ensuing second mishap, to have dismissed the group as accident-prone, without
regard to individual fault (the special circumstances being understandable for the
retention of the still incapacitated Miller, concerning whose union affiliation the
record is silent anyway).
A much more difficult situation is presented in Zaballa's case. There, despite
the fact that no antiunion statements to him are claimed, the discharge was effectuated
in a manner and under circumstances indicating it was for other than the assigned
causes, at least those relating to his conduct as an employee. However, for the
reasons stated in the evidentiary discussion, it is difficult to say that the true cause
was Zaballa's prominence in the Union, however much-as Fanjul admitted was
the fact-Respondent knew of that role. Had the evidence warranted a finding of
an antiunion attitude on Respondent's part, a combination of that fact and the less
than candid method by which the discharge was effectuated would have afforded
warrant for the conclusion that the discharge was the product of that antiunion
attitude. With this last out of the case, the matter of the true reason, whatever
one's suspicions concerning it, are left in the limbo of speculation. Concerning this
last, a possible explanation for Respondent's manner of handling the termination
may have been the factor it played down-Zaballa's hunt for other employment. On
his own admission, he had already accepted another offer, to take effect on com-
pletion of his last assignment, but contingent upon the outcome of his use of it as a
lever for a demand for a raise in pay. In such a circumstance, an employer might
well be impelled to precipitate action as a countermove to the employee's embarrassing
it by a sudden departure of his own. It is true that this alternative hypothesis would
carry greater conviction if Respondent had openly put it on that ground, or the
evidence were clearer concerning when and how Respondent got this information,
a matter which the Government did not probe. But, in the absence of a prima facie
basis for an inference of antiunion motivation for the discharge, which Respondent
is called upon to offset, it is rather academic what the relative merits are of the
two reasons which can rationally account for the precipitateness , one within and
the other outside the purview of the statute. Regrettably to Zaballa, the evidence does
not provide an adequate basis in law for attributing the discharge to an antiunion
HOISTING & PORTABLE ENGINEERS LOCAL 701, ETC. 469
motivation whatever the suspicions aroused by the manner of, and the asserted basis
for, the Respondent's action.
In the circumstances, the conclusion is that the preponderance of the evidence
does not support the allegations that Castillo, Deas, and Zaballa were discharged
because of their support of or affiliation with the Union.
On the basis of the finding above and the whole record, I hereby set forth my
following:
CONCLUSIONS OF LAW
1. Respondent is engaged in interstate commerce within the meaning of the Act.
2. Respondent did not engage in any of the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
On the basis of the findings and conclusions above and the whole record, it is
hereby recommended that the complaint be dismissed.
Hoisting & Portable Engineers Local Union #701 International
Union of Operating Engineers , AFL-CIO and Cascade Em-
ployers Association , Inc. and Corvallis Sand & Gravel Co.,
Eugene Sand & Gravel Co., and Wildish Sand & Gravel Co.,
Parties to the Contracts . Cases Nos. 36-CB-235 and 36-CB-
235-f. March, 13, 1963
SUPPLEMENTAL DECISION AND ORDER
On September 8, 1960, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent 1 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 Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief and the Charging Party filed
a brief in support of the Intermediate Report. On July 31, 1961, the
Board issued its Decision and Order,2 dismissing the complaint in this
matter. The dismissal was predicated upon a conclusion that Cascade
was representing the employers in an inappropriate multiemployer
unit, one not historically established or consented to by the Engineers,
and accordingly the Engineers were not bound to bargain with it.
Following the issuance of this Decision and Order, the General Coun-
sel and the Charging Party filed separate motions requesting the
Board to reconsider the matter. On January 31, 1962, the Board by
appropriate order granted the motions for reconsideration and re-
manded the proceeding to the Regional Director for further hearing
before Trial Examiner Spencer to receive evidence on the unit issue,
including whether or not Cascade was attempting to bargain for a
historically established multiemployer bargaining unit. Such hear-
Hoisting & Portable Engineers Local Union #701, International Union of Operating
Engineers , AFL-CIO, herein called the Engineers or the Respondent.
2132 NLRB 648.
141 NLRB No. 28.