Harvey Aluminum, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1962

139 N.L.R.B. 151 (N.L.R.B. 1962)

HARVEY ALUMINUM ( INCORPORATED ), ETC. 151
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local No. 222, or
any other labor organization, by discharging, laying off, or refusing to reinstate
or reemploy any of our employees because of their concerted or union activities
or in any other manner discriminate in regard to their hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT threaten our employees with discharge, legal proceedings, or
any other reprisals because they engage in concerted or union activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, join, or assist
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local No. 222, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, or to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities.
WE WILL offer immediate and full reinstatement to John Keith, Gordon Lee,
Gary Stephenson, Ronald Johnson, and Ralph Tolman.
WE WILL make whole the following employees for any loss they may have
suffered as ,a result of the discrimination against them : John Keith , Gordon Lee,
Gary Stephenson, Ronald Johnson, Ralph Tolman, Frank Gross, Harry M. Jeffs,
Blaine Jensen, Dee Wright, and Gary Todd.
All of our employees are free to become , remain , or refrain from becoming or
remaining, members of any labor organization. We will not discriminate in regard
to hire or tenure of employment, or any term or condition of employment, against
any employee because of membership in or activity on behalf of any labor
organization.
WESTERN CONTRACTING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from its date, and must not be
altered, defaced, or covered by any other material . Employees may communicate
directly with the Board's Regional Office, 609 Railway Exchange Building, Denver,
Colorado, Telephone Number, Keystone 4-4151, if they have any question con-
cerning this notice or compliance with its provisions.
Harvey Aluminum (Incorporated) and General Engineering,
Inc.; Wallace A. Ummel d/b/a Wallace Detective and Security
Agency; i Harvey Aluminum (Incorporated ) and United Steel-
workers of America , AFL-CIO. Cases Nos. 36-CA-1067-1,
36-CA-1067-2, and 36-CA-1067-3. October 18, 1962
DECISION AND ORDER
On March 30, 1962, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondents had engaged in certain unfair labor
1 Although the formal papers were amended at the hearing to reflect the correct name
of this Respondent , this amendment was not reflected In the Intermediate Report or the
Appendixes attached thereto. Those documents are hereby amended accordingly.
139 NLRB No. 8.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondents filed exceptions to the
Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing. Among the rulings to which the Respondents except
are the Trial Examiner's failure to order the General Counsel to
produce for their inspection a memorandum report prepared by a
Board attorney in connection with his interview of Hahn, a witness
for the General Counsel ; his failure to order the General Counsel to
produce statements which Hahn and other witnesses for the General
Counsel testified they had given to the Department of Labor and
the Federal Bureau of Investigation ; and his revocation of subpenas
duces teoum directed to the General Counsel, the Attorney General,
and the Secretary of Labor, seeking the production of these state-
ments.2
The record indicates that the Hahn memorandum, which had never
been seen by the witness, was less than one page in length, contained
expressions of the Board attorney's opinions along with two 2-word
phrases which purported to be quotations of Hahn's statements, and
did not contain any information not present in Ilahn's affidavit (a
copy of which had been given to the Respondents). We find that
this memorandum is not a statement of a witness required to be pro-
duced for cross-examination purposes under Section 102.118 of the
Board's Rules and Regulations, Series 8, as amended, the principles
enunciated in the Jencks case,' or the statute commonly referred to
as the "Jencks Act."' We further find that the failure to produce
this memorandum is not cause for striking Hahn's testimony.
The statements given to the Department of Labor and the Federal
Bureau of Investigation were in the possession of those agencies, and
had been obtained by them in connection with the administration
of statutes enforced by the Departments of Labor and Justice. As
these statements were not in the possession of the General Counsel,
Section 102.118 of the Board's Rules did not require their production.
Nor in our opinion, was it contemplated by either the Supreme Court
in the Jencks case or Congress in enacting the "Jencks Act" that state-
ments obtained by various other departments of the Government in
connection with other statutes administered by them should be pro-
duced in a proceeding such as this. Accordingly, we affirm the Trial
2 By motion, filed July 11, 1962, the Respondents requested that the Board grant oral
argument on the issues raised by these rulings, and determine these issues prior to its
consideration of the substantive matters involved in the case As the Board decided to
consider all the issues posed herein contemporaneously, and as the record, including the
exceptions and briefs, adequately presents the issues and positions of the parties, the
Respondents' motion is hereby denied
Jencks v. United States, 353 US 657
18 U.S C Sec. 3500.
HARVEY ALUMINUM (INCORPORATED), ETC. 153
Examiner's refusal to order the General Counsel to produce such
statements, and his revocation of the subpenas directed at the General
Counsel, the Attorney General, and the Secretary of Labor seeking
the production of these statements.5 We therefore find that the Trial
Examiner's rulings are free from prejudicial error and they are hereby
affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
as modified herein.'
1. As found by the Trial Examiner, Respondents Harvey and Gen-
eral constitute a single employer engaged in the fabrication of alumi-
num at plants in Torrance, California, and The Dalles, Oregon.' Dur-
ing the summer and autumn of 1960, when various labor organizations
including the Charging Party were attempting to organize these
plants, Respondents Harvey and General employed Respondent Wal-
lace to learn and report on the identity of those of their employees who
favored union organization. Wallace operatives, ostensibly hired by
Harvey and General as production workers, acted as labor spies and
reported the identity of prounion sympathizers to the Respondents.'
,While Section 11(6) of the National Labor Relations Act, as amended. contains a
procedure whereby the Board may request other departments to furnish documents in
their possession, the purpose of that section is to enable the Board, at its discretion and
at Presidential direction to secure documents which it needs for the proper administration
of the Act In our opinion, it is not the purpose of that section to enable parties to Board
proceedings to use the facilities of the Board to obtain documents in the files of other
governmental departments
6 On May 18, 1962, Respondent Harvey moved the Board, pursuant to 5 U S C Section
1006(d), to reopen the record so that it could present evidence in refutation of findings,
other than jurisdictional findings , contained in prior Board decisions involving Respondent
Harvey on the ground that the Trial Examiner had based his decision thereon A Trial
Examiner may of course take official notice of prior Board decisions Moreover, while
the Trial Examiner adverted to prior Board decisions , his findings were based on the
record herein . Accordingly, we hereby deny Respondent Harvey's motion.
The Intermediate Report contains certain minor inaccuracies which do not affect our
agreement with the Trial Examiner 's ultimate factual findings or conclusions.
7 Interest on backpay shall be computed in the manner set forth in Isis Plumbing &
Heating Co , 138 NLRB 7116 For the reasons set forth in the dissent in that case. Mem-
bers Rodgers and Leedom would not award interest on backpay and do not approve the
award here
8 Respondent General excepts to the Trial Examiner's finding that Harvey Aluminum
Corporation (or Company) of Oregon was its direct successor in the operation of The
Dalles, Oregon, plant. We find merit in this exception. As the issue of succcssorship was
not raised by the charges or complaint and was not fully litigated at the hearing, and as
no contention was made that this company should be added or substituted as a respondent,
we shall leave the determination of the question of successoiship to the compliance stage
of this proceeding
9 The Respondents, who admit that Harvey and General engaged Wallace to spy on
employees at the two plants, contend that Wallace operatives were employed to detect
theft and the disposition of stolen goods , prostitution , dope peddling , gambling, and the
unauthorized sale of liquor They charge that the Trial Examiner erred in failing to
credit the testimony supporting this contention and accuse him of bias and prejudice. It
is established Board policy not to overrule the Trial Examiner 's credibility findings except
where a clear preponderance of all the relevant evidence convinces us that such findings
are incorrect , See Standard Dry Wall Products, 91 NLRB 544, enfd . 188 F. 2d 362
(C A. 3). While the record in the subject case is marked by conflicts in testimony, as
well as charges and countercharges of bribery and subornation , the Trial Examiner en-
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employment of undercover operatives to engage in labor espio-
nage and surveillance of union activities has been condemned since the
early days of the National Labor Relations Act as a flagrant violation
of the rights guaranteed by Section 7 of the Act. We concur in the
Trial Examiner's finding that by engaging in such conduct, the Re-
spondents Harvey and General unlawfully discriminated against
tion of Section 8(a) (1) of the Act.
2. We likewise concur in the Trial Examiner's findings that Re-
spondents Harvey and General unlawfully discriminated against
Dillon and Rea in violation of Section 8(a) (3) and (1) of the Act.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order.lo
gaged in exhaustive analysis in resolving these conflicts and we find no warrant for over-
ruling his resolutions . We also find no support for the Respondents ' charge of bias and
prejudice.
10 The lines in the notice marked "Appendix A" which have been provided for the in-
sertion of the correct name of the "successor " to Respondent General are hereby deleted.
The following note is hereby added to the bottom of the Notice marked "Appendix A"
immediately below the signature:
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
The following paragraph is hereby substituted for the penultimate paragraph appearing
in the notices:
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard at Portland, Oregon, and Los Angeles, California, on June 13,
14, and 15; July 10, 11, 12, 25, 26, and 31; and August 1, 2, 3, 4, 7, 8, 14, 15, and 18,
1961, before Trial Examiner Martin S. Bennett. The consolidated complaint 1
alleges that Respondents Harvey Aluminum (Incorporated), herein called Harvey,
and General Engineering, Inc., herein called General, engaged in surveillance of their
employees by hiring Respondent Wallace Detective and Security Agency, herein
called Wallace, to spy upon their employees on and after July 23, 1960, in order to
ascertain their union sympathies; that Respondent Harvey laid off Lewis D. Rea
on or about December 30, 1960; and that Respondent Harvey discriminated against
Ballard Dillon between November 23 and December 9, 1960, and constructively
discharged him on December 9, 1960, Respondents thereby engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the National Labor
Relations Act. Oral argument at the close of the hearing was waived and the time for
filing briefs was extended to November 6, 1961. Briefs have been received from all
parties but the Charging Party.
Respondents have heavily stressed their unsuccessful attempts, due to subpenas
quashed for various reasons stated on the record, to obtain statements made by
various witnesses to other Federal agencies, viz, the U.S. Department of Labor and
the Federal Bureau of Investigation. These statements were neither used by nor
in the possession of the General Counsel, who turned over to Respondents all state-
ments made to Board agents by such witnesses. Another document in the possession
of the General Counsel was inspected by me and I ruled that it did not constitute
I Issued May 11, 1961 , and based upon charges filed January 23 and 26 and Febru-
ary 6, 10, and 24, as amended March 20, 1961.
HARVEY ALUMINUM (INCORPORATED), ETC. 155
a statement within the meaning of the "Jencks" Act, 71 Stat. 595, 18 U S C. 35'00;
hence, I declined to order it turned over to Respondents. See Palermo v. U.S., 360
U.S. 343; U.S. v. Annunziato, 293 F. 2d 373 (CA. 2), cert. denied 368 US 919;
Section 102.118, Rules and Regulations of National Labor Relations Board. Respond-
ents have cited N L.R.B. v. Capitol Fish Company, 294 F. 2d 868 (C.A. 5), in support
of its position. That case turns up a different issue, in my view, as it involves an
attempt to -show improper conduct on the part of the attorney trying the case by
persuading witnesses to distort facts.
Upon the basis of the entire record in the case, and after consideration of the
relevant evidence and contentions, including my observation of the witnesses and
conclusions based upon their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Wallace Detective and Security Agency is a sole proprietorship owned and operated
by Wallace Ummel at Portland, Oregon, where he is engaged in the business of
furnishing security, detective, and investigative services. During the 12-month
period prior to the issuance of this complaint, Wallace performed services valued
in excess of $50,000 for enterprises each of which shipped goods valued in excess
of $50,000 per annum to points outside the State of its location or performed
services valued in excess of $50,000 outside of such State.
Respondent Harvey Aluminum (Incorporated) is a California corporation en-
gaged in the production and sale of aluminum products. At all times material herein
it has maintained its principal offices and an aluminum fabricating plant at Torrance,
California. It concedes that it owns another plant at The Dalles, Oregon, the opera-
tion of which has been carried on by other, and as will appear, affiliated concerns.
During the 12-month period preceding the issuance of the complaint, Respondent
Harvey admits that it shipped products valued in excess of $50,000 from its Torrance
plant to points outside the State of California. It admits that during the same period
it sold and shipped, although it denies the manufacture thereof, products valued in
excess of $50,000 from its plant at The Dalles to points outside the State of Oregon.
Respondent General Engineering, Inc., is an Oregon corporation which prior to
January 15 or 16, 1961, was engaged in the construction and operation of The
Dalles plant referred to above. It appears that a new corporation, viz, Harvey
Aluminum Corporation of Oregon,2 assumed the operation of The Dalles plant on
or about the above date. There is no indication or contention that this new concern
is other than a concern fully owned and controlled by Respondent Harvey. There
is evidence that supervisory personnel moved over from General to the new corpora-
tion and there is none of any change in the method of doing business. Thus, Andrew
Cronkrite has been general manager of the new concern since January 1961 and,
immediately prior thereto, held an identical post with Respondent General, similarly,
Robert Moore, personnel manager at The Dalles plant, was transferred from General
to the employ of the new concern in an identical capacity on the same date as
Cronkrite
The record also discloses that F. M. Blatt is resident auditor at The Dalles; that
he was on Respondent Harvey's payroll in that capacity since 1957; and that he
was transferred to Harvey Aluminum Corporation of Oregon when it was formed in
January 1961. Hence, while the new company is not named as a Respondent herein,
it would seem that it is a direct successor to Respondent General in the operation
of the plant. See Venetian Blind Workers' Union Local No. 2565, etc. (Ambassador
Venetian Blind Company, Consolidated Interiors, Inc.), 110 NLRB 780, and cases
cited therein.
The General Counsel has asked that notice be taken of prior Board holdings that
Respondent Harvey and Respondent General are a single employer. Counsel for
Respondent General repeatedly refused, when so requested , to make any contention
or claim that there had been any change in the business relationship between Re-
spondent Harvey and Respondent General subsequent to the prior Board holdings
on the subject. Accordingly, the request of the General Counsel has been granted
and notice is taken of various prior Board holdings in this area.
There are four prior cases cited by the General Counsel involving these two
Respondents at The Dalles, Oregon, and all four name both concerns as Respond-
ents. The first, a representation case, was decided April 2, 1959, and is reported in
123 NLRB 586. The Board there found that "In view of the described interrela-
2 This concern is also referred to in the record as Harvey Aluminum Company of
Oregon It Is not clear which Is the correct title.
156 DECISIONS OF NATIONAL LABOR RELATION S BOARD
tionship between the two corporations, we find that General is not an independent
contractor and that the two corporations constitute a single employer within the
meaning of Section 2(2) of the Act."
The next, an unfair labor practice case, was decided December 10, 1959, and
is reported in 125 NLRB 674. Therein, the Board found unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act and stated that both
concerns constitute a single employer. It relied "on the evidence of common
ownership and common control of both Respondents which was adduced" in the
prior proceeding.
The next case, also an unfair labor practice proceeding, was decided May 19, 1961,
and is reported in 131 NLRB 648. The Board again found unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act, and adopted the Trial
Examiner's finding that these two concerns were a single employer whose operations
affected commerce
The last case prior to the present proceeding is reported in 131 NLRB 901 and
issued May 31, 1961. The Board again found unfair labor practices within the
meaning of Section 8(a)(1) of the Act and held that "the Respondents constitute
a single employer." It may be noted that the name of Harvey Aluminum (Inc.)
appears for the first time in 131 NLRB 648 and the decision indicated that the
name was corrected by amendment at the hearing to reflect that form.
I find, contrary to the contention of Respondent General, ,that Harvey and
General constitute a single employer.
I further find that the operations of all Respondents affect commerce within the
meaning of Section 2(6) and (7) of the Act and that it would effectuate the pur-
poses of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is a labor organization within the
meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
The two plants of Respondent Harvey are unorganized and various labor organi-
zations including the Charging Union have attempted and were attempting during
the period material herein to alter this state of affairs. The alleged labor espionage
complained of herein by the General Counsel took place in the summer and autumn
of 1960 and initial attention is focused upon the Oregon plant located at The Dalles
This lengthy record is marked by many major conflicts in the testimony from
beginning to end. Wallace Ummel, the owner of Respondent Wallace, has claimed
on the witness stand that witnesses for the General Counsel were telling lies about
him Counsel for Respondent Harvey has contended that the testimony adverse
to Respondent Harvey is "purchased and perjured." Money has passed hands, as
will be discussed below. The frame of reference, therefore, as posed by counsel
and Respondents, is one of accusations of falsehood, and findings will be made herein-
after as to who did or did not present truthful testimony herein.
Initially treated herein is the allegation by the General Counsel that Respondent
Wallace was retained by Respondents Harvey and General to learn and report the
identities of those employees of the latter who favored union organization. The
employment of Wallace by Harvey, the reports of operatives to Wallace, and the
relay of this information by Wallace to General Manager Andrew Cronkrite at
The Dalles plant is admitted by all parties but Respondents contend that Wallace
was hired for a different purpose, namely, to conduct investigations of another
nature unrelated to union activities and that these reports related to a totally different
topic.
As counsel for Respondent Harvey put it in his opening statement, the detective
agency was retained because "We were faced with a very serious problem of
pilferage . . . there were notorious plant reports of prostitution . to determine
the method whereby thousands and thousands of dollars worth of materials and
supplies and tools were leaving the plant premises, and this was the purpose of
engaging the agency and was a successful purpose. We were able to determine how
all of this tremendous amount of equipment was leaving the premises and we were
able to put a stop to a great deal of this " [Emphasis supplied.]
Respondents have repeatedly advanced on the record their desire to get at the
truth in this matter. This claim is met and will be measured against the testimony
of General Manager Andrew Cronkrite who, on behalf of Respondent Harvey,
HARVEY ALUMINU M (INCORPORATED ) , ETC. 157
entered into the transaction with Respondent Wallace, and that of others. As will
appear, there is strong evidence that he and other witnesses have neatly excised
from their memories facts which are relevant herein. Stated otherwise, it is as
though there were two distinct versions of "Uncle Tom's Cabin." While both
versions agree that 'Liza sped rapidly across the ice, one version has her fleeing
the onrushing scoundrel, whereas the other places her in this position because she
enjoys winter sports.
There are also two alleged cases of discrimination at the plant in Torrance,
California, and these are discussed later in the report.
B. Labor espionage
1. Employment of Wallace by Harvey
Frank Siemens commenced work for Respondent Wallace as a uniformed guard
and was later assigned to solicit new accounts as a salesman. In connection there-
with, he went to The Dalles plant on June 2, 1960. This visit led to the employment
of Wallace by Harvey and was the genesis of the events that give rise to this pro-
ceeding. The visit itself is not in dispute, although the contrary is true of the sub-
jects discussed and the precise nature of the services contracted for by Wallace.
There is also a basic conflict as to whether a meeting of various persons involved
herein took place at Siemens' home that evening.
On June 2, 1960, Siemens left Portland bound for The Dalles for the express
purpose of calling on General Manager Andrew Cronkrite of Respondent Harvey
and attempting to sell him Respondent Wallace's uniformed guard service He was
accompanied by his superior, Lt. Gerald McCarthy, and also by Siemens' then wife
who went along for the ride. Siemens had proposed the trip to this and to another
prospect, in an effort to get new accounts. The trio arrived at the plant and stopped
at the guardhouse Cronkrite was telephoned from that point and agreed to see one
visitor. Siemens, according to Cronkrite, refreshed Cronkrite concerning their prior
acquaintance and then proceeded to his office while the other two waited in or
near the guardhouse.3
Siemens testified, and for the reasons explicated below I find, that no one else was
present during this talk. Siemens asked if Harvey's guard service was functioning
satisfactorily Cronkrite replied that Harvey operated its own service and found
it to be satisfactory. Siemens volunteered the fact that Wallace did other types
of investigations such as theft prevention and Cronkrite, pointing to the notation
"confidential investigations" on Siemens' business card, asked how confidential these
investigations could be. Siemens replied, "Very confidential." According to Siemens,
and I so find " . then we went into his own private office and he asked me about
our company, how long it had been in operation and what kind of people we were
and . . he said he had something in mind that had to do with our investigating
department, not the guard department." 4
In the inner office, after some further discussion about the structure of Respondent
Wallace, Cronkrite asked, as Siemens testified, if Wallace had personnel trained to
"conduct a very quiet investigation into pro-union employees of the Harvey Aluminum
plant; and if we had adequate . . . trained personnel to handle such a job .
He was very concerned about union conditions there at The Dalles. . . . He said he
wanted to ferret out the union bastards, I remember that. . . . He was going to fire
them " (Emphasis supplied.]
Cronkrite went on to explain that the method of operation he anticipated would be
for Wallace operatives to be hired by Harvey, as production workers, through
normal hiring procedures after which they would make reports on their observations.
Siemens replied that .he was certain Wallace had personnel equipped to carry on this
work and Cronkrite stated that if Wallace did a good job at The Dalles, it could
receive an identical assignment for Harvey at its plant in Torrance, California. Sie-
mens quoted Cronkrite an hourly rate per man, plus expenses, and suggested that
s Siemens and Cronkrite had met in 1957 when both were in other business ventures.
At a later date, Cronkrite loaned Siemens a camera for a mutual friend and, according to
Siemens, he paid Cronkrite a brief visit at The Dalles some time before this visit under
consideration herein , June 2 was their fourth contact
' Cronkrite testified that he has an outer office and two private inner offices Of the
latter, one is large and contains two large tables, a desk, and a safe A connecting
smaller office has two desks, a table, and a file I find that the two men commenced their
discussion in the larger private office of Cronkrite and, after the above discussion concern-
ing confidential investigations, Cronkrite transferred the locus to the smaller private office
and continued the talk.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cronkrite get together with Wallace Ummel, the owner of Respondent Wallace.
The matter was left on the basis that they had a deal if Cronkrite had a satisfactory
conversation with Ummel concerning price and availability of personnel. Siemens
was specific that there was no reference by Cronkrite to any other purpose for the
investigation and did not recall any reference by Cronkrite to thievery in the plant.
Cronkrite in his testimony recalled the visit by Siemens but claimed that one,
Harvey Jennings, the chief electrical engineer for both Harvey plants, was present
at all times inasmuch as he and Jennings were working together at adjacent desks.
He interrupted his meeting with Jennings and the latter remained present while
Cronkrite and Siemens conversed.
Siemens, according to Cronkrite, offered to sell the uniformed guard service and
Cronkrite allegedly replied that Harvey was satisfied with its own existing
service. Cronkrite then admittedly asked Siemens if Wallace had competent people
"to make private investigations." Siemens replied in the affirmative and offered to
telephone him with prices. Cronkrite refused, stating that he had to think the matter
over, and closed with "don't phone me; I'll call you." At this point Siemens left.
Cronkrite further claimed that he did not mention the purpose of the investigation to
Siemens.
Jennings is based in Torrance, California, but frequently makes business trips to
The Dalles. Respondent's gate records at The Dalles, if accepted at face value, dis-
close that Siemens entered the premises at 11 a m., whereas Jennings had entered
earlier at 8.50 a.m. Jennings claimed that he was in Cronkrite's office around 10:30
a.m. when they were interrupted by the visit of Siemens. Consistent with claimed
practice, Jennings remained in the room and was introduced to Siemens . Jennings
allegedly noted the name of Siemens because he formerly knew someone with an
identical surname At the hearing, he later spelled the other name and it came out
as "Seamans ." He in general supported Cronkrite's testimony that Siemens attempted
to sell Cronkrite the guard services, but his version went beyond that of Cronkrite,
Jennings claiming that -Siemens allegedly tried to sell the investigative service so as
to "curtail some of the loss of materials and equipment." [Emphasis supplied.]
There was no reference to any union or discharge of union sympathizers and the two
men were not out of Jennings' presence at any time. Cronkrite ended the meeting
with a statement that he was interested and would call Seimens later "if he decided
on it."
Two inconsistencies are immediately apparent between the versions of Jennings
and Cronkrite. Thus. Cronkrite testified that as the conversation progressed, he
asked Siemens if Wallace performed private investigations whereas, according to
Jennings, Siemens introduced the topic in his initial presentation Secondly, Cronk-
rite testified that the purpose of the investigation was not mentioned in the talk,
whereas Jennings claimed that Siemens attempted to sell the service to "curtail
some of the loss of materials and equipment," to which Cronkrite replied that he
was very much interested and would call him. Furthermore, as will appear below,
Jennings' explanation why he was conferring with Cronkrite and that the topic of
guard service caught his ear because it was within his particular bailiwick simply
does not hold water.
There is also some strange testimony by Jennings as to how he happened to come
forward with his testimony herein. Siemens presented his testimony herein on
June 15, 1961, and, as found, Siemens' visit to Cronkrite took place on June 2,
1960. Jennings, as he claimed, was in no way reminded of the Siemens incident for
quite some time. In June 1961, while en route to The Dalles on business, he hap-
pened to read a Portland newspaper which had, "a big spread" about the hearing
before me which had commenced on June 13, 1961. He was asked the specific ques-
tion if Siemens' name was mentioned in the paper. He replied, "I don't believe so
because it was a general statement. I don't remember any specific names." 5
Jennings did mention to Cronkrite the next morning the newspaper article con-
cerning "this detective agency having been employed by Harvey Aluminum at The
Dalles; they had been working undercover." He was again asked the specific ques-
tion whether in this June 1961 talk with Cronkrite they discussed Siemens. He
replied "Frank Seamans [sic ] name may have been mentioned, I don't recall it
specifically, that we had any specific discussion about him "
He returned to Torrance several days later. Respondent Harvey's public rela-
tions man , one Ford, according to Jennings, asked if Jennings had read an article
on this topic in another newspaper, as reflected in a clipping in Respondent's files.
He also asked Jennings if he had discussed the matter with Harvey's general counsel,
Elliott. Jennings later did discuss the incident with Elliott, but the precise nature
5 The transcript reflects the name as Seamans It is clear, and I find, that this refer-
ence was to the Siemens who testified herein and not to Jennings ' erstwhile acquaintance.
HARVEY ALUMINUM (INCORPORATED), ETC. 159
of the discussion is not disclosed, although this presumably led to his appearance
herein.
One is immediately struck by the fact that there is little in the newspaper stories, at
least so far as Jennings recalls them, to put in his mind 1 year later a specific reference
to Siemens. He testified flatly that Siemens was not referred to in the story he read.
Hence, in his reasoning, a story about Wallace engaging in purported labor espionage
automatically became identified with the Siemens visit to Cronkrite at which he was
allegedly present a full year earlier.
As stated before, the conflicts of testimony herein are numerous and major.
However, I am overwhelmingly convinced from a consideration of what took place
at the Siemens home later that very night after his trip to The Dalles, that Siemens'
version is the truthful one and it has been credited. If this is so, either Jennings was
not in the room at all, or was in the outer office working at a desk pursuant to his
custom and remained there while Cronkrite, as Siemens testified, proceeded to take
Siemens to his smaller private office. Cronkrite then brought up the union problem
and proposed a scheme for labor espionage. This would have been entirely consistent
with Cronkrite's admitted policy, as later developed, of not permitting any supervisors
to know the identity of Wallace operatives, and entirely consistent with the elaborate
precautions, described below, to have all information from Wallace funneled through
Cronkrite. At this point, therefore, I find that Jennings' testimony was contrived to
the extent that he placed himself in the room and in the presence of the other two
men during the crucial portion of the conversation. At the very least, a year's ra-
tionalization colored his memory, if it ever existed, with afterthought.
This finding as to Jennings' veracity is also predicated upon another factor. As
noted, Jennings claimed that this discussion with Siemens stuck in his memory so
well because it involved a topic which was within his personal interest and function
as chief electrical engineer and, indeed, was related to the purpose of his visit to
the plant. This is not supported by the record and I discredit his testimony for the
following additional reason.
Jennings is the chief electrical engineer for both plants of Respondent Harvey.
Although based in Torrance, he frequently visits and works at The Dalles plant. In
connection therewith, in June 1960 he was the project engineer for the construction
of a new building at The Dalles and he frequently conferred with Cronkrite because,
according to Jennings, they were "discussing transferring certain personnel" and
"assignment of existing personnel" and they were setting up schedules on paper "of
work, manpower and that sort of thing." This new building, it is significant, was
not a warehouse but rather one containing new production facilities to house "60
new cells." As Cronkrite put it, he and Jennings were "going over some drawings"
on June 2, 1960. This, I find, was manifestly a discussion about the construction
of a new building and the electrical problems attendant thereupon.
Respondent Harvey claims, in support of Jennings ' testimony, that the discussion
between Siemens and Cronkrite was a matter of personal interest to Jennings
because it related to the purpose of the latter's visit. It introduced in evidence a
document dated February 1, 1960, prepared by Resident Auditor F. M. Blatt and
entitled "Audit of Tool Crib and Related Areas." This document reflects a survey
made by Blatt during January 1960 and includes an inventory also taken in January.
Contrary to Harvey's claim , there is little in this document to support Jennings'
testimony. It states on its face that it is an audit of three "maintenance functions"
and these are: (1) Physical security of materials stored in the various tool crib
areas; (2) recordkeeping; and (3) utilization of materials bought into inventory.
As to the first two topics it states as follows:
1. Physical Security.
a. Adequate security exists in the mechanical maintenance section of the
tool crib.
b. A complete lack of security exists with respect to electrical materials and
construction materials presently stored on the dock to the rear of the cafeteria
within the General Service building. This area contains shelves on which are
stacked extremely valuable electrical supplies. Also, a large variety of other
electrical and construction materials are stacked on the dock. No fencing
exists at this time.
2. Record Keeping.
a. An audit of the record keeping functions maintained in the mechanical
maintenance tool crib was performed in conjunction with a more detailed study
of material usage. General accuracy and appearance of the records was con-
sidered adequate.
b. The inventory usage card presently being used in the tool crib is not
completely satisfactory for our purposes and will be revised to facilitate posting.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Electrical materials such as motors, transformers, heaters, conduit, etc., are
not maintained on any systemized record. Usage of this material or book
inventory for checking purposes cannot be readily determined.
The document devotes considerable space to the third topic. Indeed, the first two
topics are treated in full on the first page of the document which also reflects the
purpose of the audit. The third topic appears on one and one-half pages and is
also accompanied by two separate pages each of which is an appendix thereto.
The first is an inventory analysis of the tool crib setting forth the length of time
items have been on hand and the second is an analysis of inventory items which had
never been used. As for the third topic itself, it states that it is concerned with the
utilization of materials. It points out that a detailed audit had been made of 1,421
separate inventory items in the maintenance tool crib with the exception of small
parts such as bolts, nuts, and clips. The items are then broken down into items
of normal usage versus dormant usage. The appendixes reflect and analyze desirable
amounts of inventory for respective items dependent upon the frequency of usage. It
points out that a considerable portion of the inventory is dormant and closes with
the following language:
Summary: It appears that items were placed into inventory without adequate
consideration for the true necessity of the item, nor for the quantity to be bought
after the necessity has been determined. When ordering increased quantities
of material to take advantage of a quantity price discount, potential usage of
material must be considered. Savings developed by quantity buying can be
easily offset by the non-use of the material.
Recommended: That prior to buying an item into inventory, the following
steps be taken:
1. Determine how long it will take vendor to deliver material to plant.
2. Maintain inventory level only high enough to cover emergency main-
tenance in critical areas and cover us until vendor can deliver replenishing order
3. All electrical materials whatsoever their nature or use should be controlled
by the maintenance stock clerk. Issues should be made as the material is
needed similar to the method now used for mechanical materials.
Obviously this document is primarily directed to Harvey's inventory stocking pro-
cedures but also, in treating with electrical materials, incidentally made a recom-
mendation that they be dispensed by the maintenance stock clerk. It is true that
this does obliquely raise the issue of security measures for electrical and construc-
tion materials. But this is a far cry from a meeting of the plant electrical engineer
with Cronkrite some months later devoted to drawings for a new plan and the
construction procedures and personnel involved. I fail to see, therefore, how Jen-
nings could honestly make the claim that he did herein. Significantly, he admitted
that he had nothing to do with initiating this study, which had issued over 4 months
before. Even Blatt conceded on the witness stand that there was no discussion of
an unexplained shortage of electrical and construction equipment in this report,
although he asserted that he had discussed the problem with Cronkrite
To this must be added the fact that Jennings regularly works in Cronkrite's office.
In his business trips to The Dalles, as he testified, he is regularly assigned a desk
in Cronkrite's office and uses the office as though it were his own. It is his custom,
when Cronkrite is interrupted by a visitor, to continue working if his work is inde-
pendent and is not being carried on with Cronkrite. Generally, his attention is not
drawn to Cronkrite's conversations with visitors, but he contended that this talk
with Siemens drew his attention. He conceded that for the week under consideration
he remained and worked in the office, in part independently on his own, and in part
on work which required conferences with Cronkrite. I believe and find, for the
reasons stated, that the Siemens visit did not relate to the work of Jennings, ac-
cordingly did not draw his attention, and that, assuming Jennings was present in
the outer private office, it involved a matter in which he was not truly concerned.
Indeed, Respondents Harvey and Wallace admit on page 37 of their brief that
"admittedly Mr. Jennings was a bystander to the conversation, he was not basically
interested in its contents and it was outside his field of responsibility." As demon-
strated, I agree with this statement. The brief further alleges that Jennings' "recol-
lection could not be expected to be as complete as that of Cronkrite." With this
too, I agree, but the difficulty with the claim is, as demonstrated, that Jennings' ver-
sion went beyond that of Cronkrite and soared off into a purported explanation by
Siemens of how stolen goods were traced to fences and other sources. Hence, when
on page 24 the brief refers to Siemens' testimony as "a fairy tale," I believe the term
may be correct but it is misdirected to Siemens rather than to Jennings, a more
appropriate recipient.
HARVEY ALUMINUM (INCORPORATED), ETC. 161
For this, for previously stated reasons, and because of the findings below con-
cerning the meeting in the home of Siemens that evening, the testimony of Jennings
is discredited herein as to the events in the office of Cronkrite on June 2, 1960, with
particular reference to his testimony that Cronkrite did not speak privately with
Siemens on this occasion. 1 find, as indicated, that Cronkrite proposed to Siemens
that Wallace engage in labor espionage at the Harvey plant in The Dalles, and later
at the Torrance plant, for the purpose of learning and reporting the identities of
prounion adherents among Harvey employees at a time when organizational activities
were being carried on. At a, later stage of this report, I have considered testimony
by Cronkrite as to the purposes of this investigation and the use or rather nonuse
made of the materials supplied by Wallace operatives. For reasons there set forth,
I find that he was not a reliable witness and I am unable to accept his testimony
in this instance as well. Accordingly, I also reject his testimony that the word
"ferret" is not in his vocabulary and that he did not use it to Siemens in connection
with ascertaining the identities of union sympathizers.
2. Implementation of plan for espionage
Siemens testified, and I find, that he returned to the automobile and, in the
presence of his wife, repeated his talk with Cronkrite to McCarthy. As Siemens
put it, "It looked like a pretty big job and I told him immediately." McCarthy
expressed pleasure over the prospect and they returned forthwith to Portland to
report to Wallace Ummel, the owner of Respondent Wallace, because, according
to Siemens, Cronkrite "wanted to move immediately; he wanted to get right on it."
Accordingly, they omitted the other call they had planned to make
Mrs. Siemens, as a rebuttal witness for the General Counsel, testified in accord
with Siemens whom she had previously divorced in February 1961. She testified,
and I find, that McCarthy and her then husband "talked about the plan that they
were going to present to Mr. Ummel about the placing of men in the plant to .. .
ascertain the union sympathies of the employees." Her husband warned her at the
time not to repeat this to anyone and repeated the warning that evening in their
home at a meeting which is described below.6
Siemens and his ex-wife testified in substantial agreement concerning a meeting
that night, June 2, 1960, in the Siemens home which I find was attended by Wallace
Ummel, McCarthy, Siemens, and Mrs. Siemens, although there is a minor conflict
between them as to whether Siemens dropped off at the home with Mrs. Siemens on
the return to Portland or first went to see Wallace Ummel. Both testified that the
meeting was held in the Siemens home that evening; was attended by Wallace
Ummel, McCarthy, and Siemens; and that Mrs. Siemens remained present during
the meeting.
According to Siemens, he and McCarthy contacted Wallace Ummel on the
premises of a Portland newspaper where Respondent Wallace furnishes uniformed
guard service and was then assigned an office. Siemens explained to Umimel that
Cronkrite wanted investigators to work in the plant "to find out who was pro-union."
He did not state any other purpose for the investigation. McCarthy then suggested
several men who were available at the time, one of them Calvin Davis, a major
participant in this narrative. The trio went to McCarthy's home and then to that
of Siemens who lived nearby. Mrs Siemens served the trio with beer and remained
in the room. A discussion ensued as to whether Wallace could provide sufficient
men for the job and whether Siemens had quoted an adequate rate for the men;
0 McCai thy claimed that Siemens reported only that there was no chance to get the
guard service, that there was a possibility of "some other work," that it would be some
time before it came to a head, and that Cronkrite would contact Ummel if he wanted this
other (unspecified) work done Siemens alleged that "possibly it would be in the range of
investigative work " McCarthy elsewhere demonstrated a most faulty memory. For ex-
ample, contrary to Wallace Ummel, he insisted that Calvin Davis was the third man to go
to work at the plant, whereas the record conclusively shows that Lieutenant Davis and
another were the first two chosen for this key assignment, that they started work 1 week
later, and that additional personnel were sent after another 2 weeks McCarthy errone-
ously placed the first operatives in The Dalles 7 weeks after the Siemens visit and he
placed operative Feazle in California before Davis, whereas the reverse was t ue by
6 weeks. The testimony of McCarthy is not accepted and I find that Siemens told him
more at this point than McCarthy chose or was able to recollect in his testimony. Indeed,
the fact that the second call was abandoned and that they returned directly to Portland,
despite the early hour, demonstrates that Cronkrite had presented Siemens with more
than the mere possibility of work.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
according to Siemens, they then "discussed their purpose of going there was to find
pro-union sympathizers."
Mrs. Siemens testified, and I find, that Lieutenant McCarthy and Ummel came
to her home between 7 and 8 p.m.; that a conversation then took place in her living
room; that she and her husband were present; and that "Mr. Ummel sat on the
davenport on the left hand side of the room." McCarthy and Siemens "were
sitting on the right hand side of the room. I was sitting back ,in the corner in a big
chair." McCarthy told Ummel of the trip to The Dalles and what Siemens had
reported to him. McCarthy spoke about the best method to place Wallace operatives
"in the plant to find out what the union sympathies were of the employees." He
suggested having a contact man in The Dalles to whom the plant operatives could
report. Either McCarthy or Siemens claimed that Cronkrite considered it a good
idea to have the operatives placed m the plant. Ummel and McCarthy then men-
tioned the names of various Wallace operatives who might be suitable for an
assignment of this nature.
Mrs. Siemens identified Ummel in the courtroom and, on cross-examination,
reaffirmed her testimony that he had been at her home on this evening, viz, June 2,
1960. She recalled that McCarthy, on the return to Portland, had stated he wanted
Siemens to tell Ummel what had taken place at the plant and had suggested that
the Siemens home would be a good meeting place, although she later attributed
the choice of location to her ex-spouse. I asked her how she happened to remember
where everyone sat in her living room and she replied that the meeting was fixed in her
mind because she was "unhappy" with her then husband and "didn't want to be
bothered" with the group coming to her home. She further testified that this was
the first ,and apparently only visit of Ummel to her home, although McCarthy had
been there previously for business reasons to notify her husband about jobs. Ummel
for the most part sat and listened and would occasionally nod an affirmative answer.
She reaffirmed that she had a very good mental picture of "who was sitting where."
The testimony if Siemens is in substantial agreement with that of his ex-spouse
with her two minor exceptions, viz, the extent to which McCarthy participated
in the discussion and whether Siemens remained at home on the return from The
Dalles or left with McCarthy and then returned. He testified that he left with
McCarthy and conferred briefly with Ummel, explaining that Cronkrite wanted some
men to work in the plant to ascertain "who was pro-union," and Ummel responded
that they had the personnel to handle the job. He testified in accord with his ex-wife
that Urnmel, McCarthy, and he conferred in his living room that evening in her
presence. They discussed the fee to be charged and the fact that "their purpose for
going there was to find pro-union sympathizers."
McCarthy claimed that he and Siemens saw Ummel in Portland that afternoon,
told him of the possibility of doing business with Harvey, and that he, McCarthy,
did not mention the nature of the work because he did not know it. He was "almost
positive" that he did not see Siemens again that day, that he did not visit the Siemens
home that evening, and, further, that he returned to his own home at 5:30 or 6 p.m.
Ummel flatly asserted, immediately after Mrs. Siemens testified, that he had neither
seen nor met with her before her appearance in the courtroom on this day that she
testified, viz, August 18, 1961 He further claimed that he had never been in the
Siemens home.
Ummel, who previously testified at great length, claimed that either Siemens or
McCarthy reported to him on their return from The Dalles that Cronkrite had
rejected the use of uniformed guard service but had said there was a possibility of
some "investigating work; that the nature of this work was not specified"; and that
Cronkrite would contact Ummel in a few days.
Respondents have made an extended attack on the credibility of both Siemens
and his former wife. As to Siemens, much was made of a $20 check given to him
by the Charging Union and of his drinking habits which led to his discharge shortly
after the episode under consideration. By contrast, Respondent urges the credibility
of one, Stark, a witness for Respondent in a later stage of the case, who had a
similar drinking problem. Indeed, the record contains many references to the per-
sonal problems of various Wallace operatives on both sides of the case and it could
well be argued that the nature of the work involved does not attract the most respon-
sible element. See Holmes, J., in Olmstead v. U.S., 277 U.S. 438, 470, and Mapp V.
Ohio, 367 U.S. 643. See also Cavanagh v. Pinkerton's Detective Agency, 198 F. Supp.
50 (D C. Mass.).
As for the $20, this has reference to a sum paid to Siemens by the Charging Union
from which the trier of fact is asked to conclude that his testimony has been purchased
and, as Respondents argue in their brief, that "his story is unbelievable, he himself
is not -a credible witness." The record discloses the following concerning the incident,
HARVEY ALUMINUM (INCORPORATED), ETC. 163
as reflected in the testimony of Siemens and Staff Representative Lee Caldwell of
the Union.
Early in January 1961, Siemens, no longer in the employ of Wallace, heard that
the Union was interested in obtaining information on the connection between Harvey
and Wallace, telephoned the Union, asked if they were interested in such informa-
tion, and was referred to Caldwell. They met that afternoon and Siemens told
Caldwell that it was he who had negotiated the contract or arrangement with
Cronkrite. Caldwell told Siemens that he was interested in concrete evidence thereof
such as expense vouchers for the Wallace operatives or check stubs from both jobs
for the same employees. He further stated that the information would be appreciated
and that it would be paid for. Siemens agreed to obtain such information and,
as Caldwell testified, said he wanted $200 for himself and funds to buy drinks in The
Dalles for workmen. Caldwell responded that he would have to get approval
for the $200, but could and did give him $20 for the latter purpose.
A day or two later, Siemens contacted Caldwell, said that he had been in touch
with some of the men, had run out of funds, and had written a $10 check on the
assumption that Caldwell would cover it. Caldwell refused, but renewed his offer
of $200 if Siemens could obtain the data desired by the Union. This data was not
forthcoming and no additional funds were paid to Siemens. The fate of the $10
check is not disclosed. It may be noted, as Siemens testified, that Caldwell advised
him that when and if he spoke to the National Labor Relations Board he should
"tell them the truth."
I fail to see how this $20 episode warrants the inference that Respondents would
have drawn. If anything, a contrary inference is more logical. The Union re-
fused to cover a $10 check written by Siemens and presumably this check either
rapidly assumed the characteristics of rubber or was covered by Siemens to his
distress. More significantly, the Union refused to give Siemens the $200 he sought
for his services.
Respondent points herein to the character of Wallace Ummel as shown by 11 years
of allegedly exemplary service on the Oregon State Police force.? The General
Counsel counters by pointing out that Ummel resigned from this organization after
an investigation for infraction of department rules, viz, having an unauthorized
passenger in a patrol vehicle while on duty. Moreover, as will appear below, the
testimony of Ummel described hereinafter concerning the methods of investigation,
the uses made of the evidence elicited, and certain "loans" he made is as incredible
as that of Cronkrite.
It should be noted that the testimony of Mrs. Siemens was presented in August
1961 and that she had previously divorced Siemens in February 1961 on the
grounds of "cruel and inhuman treatment." Manifestly, as of the time of her testi-
mony, the inference is not warranted that she was favorably disposed toward her
ex-spouse. I have given careful consideration to Mrs. Siemens' testimony herein.
She was cross-examined carefully by most able and skilled counsel for Respondents
and, in fact, had been interviewed, prior to her testimony, by affiliated counsel.
More particularly, there is not an iota of evidence that she is favorably disposed
to her ex-spouse and her testimony as to the meeting at her home that evening dis-
closes the contrary.
Her testimony, it may be noted, comes in significant contrast to the failure of Re-
spondent to call Mrs Cronkrite in connection with a later episode where Cronkrite
and Wallace Ummel have given testimony in substantial conflict with that of Calvin
Davis, a witness much attacked herein, and not without some justification, by
Respondent
To set forth Mrs. Siemens' testimony, and the circumstances under which it was
given, serves to disclose its truthfulness; moreover, in contrast to Ummel and
McCarthy, she has no personal interest in the outcome of this case. I have weighed
at length the straightforward and forthright testimony and demeanor of this witness,
clearly a woman of intelligence, as well as all the surrounding circumstances. I am
entirely convinced that she was a truthful and reliable witness and her testimony
left me with an abiding impression of its integrity and veracity. As is readily
apparent, if she told the truth, and I am convinced on this record beyond any doubt
that she did, the testimony of Wallace Ummel and his aide, McCarthy, is utterly
irreconcilable with hers and the conclusion is inescapable that their testimony was
contrived because of vital self-interest.
To sum up, I find that General Manager Cronkrite of Respondent Harvey pro-
posed to Siemens on June 2, 1960, that Respondent Wallace engage in labor
7 For that matter, the record discloses that Calvin Davis was formerly chief deputy
coroner of Tillamook 'County.
672010-63-vol. 139-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
espionage to detect prounion sympathizers among Harvey employees at The Dalles
plant, and that on the same evening Wallace Ummel and Lieutenant McCarthy met
with Siemens at the latter's home. They then proceeded to discuss ways and means
to implement this plan and considered personnel that might be used thereon, all in
the presence of Mrs. Siemens In this respect, see U.S. v. Annunziato, supra, hold-
ing that "the existence of a plan to do a specific act is relevant to show that the act
was probably done as planned." Further implementation of the plan for labor
espionage is described ibelow.
3. Initial contact of Cronkrite with Wallace operatives
According to Wallace Ummel, he was contacted by Cronkrite 1 or 2 days after
the June 2 visit of Siemens to Cronkrite, and, on the third or fourth day after the
visit, Ummel called upon Cronkrite and discussed the tool theft problem. A day or
two later, Cronkrite summoned Ummel to The Dalles and they came to an agreement
to start with two operatives and add others later.
Cronkrite was not certain whether he contacted Ummel, or vice versa, 2 or 3
days after the visit by Siemens. They met on the following day and, after an
interval during which Cronkrite checked Ummel's references, they met again,
negotiated a price, and agreed to get started. After a couple of days, Ummel tele-
phoned, said that he had two operatives alerted to start in and gave Cronkrite their
names; these manifestly were Cal Davis and one, Darrel Wagner, the first two
operatives who had been working as uniformed guards in Portland. Ummel, it is
interesting to note, does not agree with Cronkrite on this, because he claims that
he gave Cronkrite the names of the two men when he met with him at The Dalles
a day or two later at a time when the two men were present, albeit outside in a
parked automobile.
As for events at The Dalles, Calvin Davis testified that Ummel approached him
early in June 1960 and asked if he was interested in working for Harvey at The
Dalles. Ummel stated that Harvey was nonunion, that unions had been unsuccess-
ful in organizing the concern, and that the job involved ascertaining the identities
of prounion employees and reporting their names and badge numbers to Ummel
or Cronkrite. Davis accepted the proposition and was told that his job, as well as
that of his companion, Wagner, was to "report any activities of tool theft and pro-
union activity." According to Ummel, he did contact Cal Davis at or about the time,
but told him only that his job and that of Wagner would be to report people in-
volved in tool theft Their pay scale was to he $2 an hour from Harvey and $1
an hour from Wallace plus initial expenses. Wagner did not testify herein and his
whereabouts is not explained.
Ummel and Davis are in agreement that they together with Wagner proceeded
to The Dalles early in June 1960. Ummel drove his own car and Wagner rode up
with Davis. When they arrived at The Dalles, Ummel telephoned Cronkrite.
According to Ummel, Cronkrite was anticipating his arrival and suggested that
Ummel meet with him at the Cronkrite residence Ummel drove to the Cronkrite
home together with Davis and Wagner. Ummel did not recall any previous talk
between Cronkrite and himself about bringing the two men to the meeting and
attributed his act in bringing them along to the fact that "they might as well ride
along with me as to sit there [in The Dalles] and do nothing."
Cronkrite, however, viewed the presence of the two men quite differently from
Ummel, inasmuch as he testified that he had instructed Ummel to bring Davis and
Wagner to his home "So I could get a look at them." [Emphasis supplied I Both
Ummel and Cronkrite testified that Davis and Wagner remained in the car parked
in the driveway. According to Ummel, he entered the home alone whereupon Mrs.
Cronkrite telephoned her husband at the plant. She offered him a cup of coffee
and asked if the men outside in the car would care to enter Ummel replied in the
negative. Cronkrite arrived shortly thereafter, was given the names of the two men
by Ummel, and wrote them down. As noted, Cronkrite testified that these names
had been furnished to him by Ummel at an earlier date during a telephone conversa-
tion when Ummel called and said he had two men ready to leave for The Dalles.
Cronkrite testified that as he entered his home he passed 10 feet from the parked
car and took a quick look at the men. He allegedly "looked at them pretty hard" in
order to identify them at the plant. Upon entering the home, Ummel provided
their names in terms of the large man versus the small man. Cronkrite contended
that he could distinguish the men in size despite the fact that both were seated in
the car, one in front and one in back and both facing ahead.
Cronkrite admitted that upon his arrival he suggested to Ummel that the men be
brought into the house, but Ummel replied that it was not necessary. Cronkrite
HARVEY ALUMINUM (INCORPORATED), ETC. 165
also testified that it would have been the normal thing for him to have suggested
this to Ummel, but, in any event, there is no claim that the men were kept outside
for any policy reasons,
Davis testified that he and Wagner had dined with Ummel at which time Ummel
telephoned Cronkrite and made an appointment to see him. At approximately 7
p.m. the three men went to the home; Ummel introduced Davis and Wagner to
Cronkrite and they conversed for 30 or 45 minutes. A woman Davis assumed to
be Mrs. Cronkrite was initially present and served them coffee. He described Mrs.
Cronkrite as a "middle-aged" lady but did not recall the color of her hair or whether
she was slim or heavy set. When asked on cross-examination whether the coffee
was served in paper cups or in china, he recalled that it was the latter; the purported
Mrs. Cronkrite then left the room after the coffee service.
Cronkrite told the two men that they were to apply at the plant for work through
regular personnel channels. After employment, they were to listen for "any pro-
union discussions and report the same to either he or Mr. Ummel." Cronkrite
further stated that "our sole purpose was to ferret out all pro-union men" and report
them to either Ummel or Cronkrite, but preferably to the former unless it was an
emergency. [Emphasis supplied.] He suggested that the two men mingle with
their coworkersand become acquainted with them in bars and restaurants, adding that
"if we were caught at this, we were to state that we were there for the purpose of
tool theft only." Cronkrite referred to an election coming up among the men; the
record elsewhere discloses that considerable organizational activity was then being
carried on at both Harvey plants. He also stated that he was not to be called
unless "any mass meetings were to occur" or if some situation developed rapidly.
According to Ummel, he and Cronkrite discussed the housing situation in the area
and Cronkrite made suggestions concerning available rooms. They discussed the
fact that the two men would apply for work at the personnel office on the following
morning. There was no discussion of how reports would be made. According to
Cronkrite, he appeared on the scene, was given the names of the two men by Ummel,
told Ummel how they should apply for work, and suggested certain lodgings.
Cronkrite denied having any conversation with either of the two men that evening.
Elsewhere, he testified that the word "ferret" is not a word he uses. As found,
Cronkrite used this word to Siemens on June 2.
As is apparent, there is a major conflict between Davis on the one hand and
Ummel and Cronkrite on the other. I have already found that Ummel's testimony is
not to be credited with respect to the meeting at the Siemens home, a meeting which
is most basic herein, because it represents the first instance of Ummel's personal
participation in this scheme. I have also noted that Cronkrite rendered some fantastic
testimony which is treated hereinafter, specifically with reference to the use made of
reports concerning pilferage; in essence then, there is a conflict between the testi-
mony of Davis which has drawbacks, discussed below, and that of two witnesses
whose testimony is elsewhere found unreliable and rejected.
Respondents, with some justification, point to the fact that Davis has received
money both from the Charging Party as well as from Respondent Ummel and alleges
that his renders his testimony unworthy of credit. This is admittedly a trouble-
some matter. On the one hand, I am loathe to credit a witness who has received
funds from both sides of the case or for that matter from one side. On the other
hand, his testimony is controverted by that of highly interested witnesses whose
testimony has been and is hereinafter found to be unworthy of credence with respect
to basic aspects of the case.
While this does tend to render the sequence of events difficult to follow, I believe
it will facilitate matters to dispose of the credibility of Davis at this point. Initially,
it may be noted that in the aspects of the case treated hereinafer, his testimony is
corroborated by witnesses who are found to be credible witnesses. Stated other-
wise, except in this instance , his testimony is corroborated. Secondly, the receipt
of funds from interested panties does not render his testimony incompetent. This
means that his testimony is to be regarded with suspicion, is to be appraised ob-
jectively, is to be compared with other testimony in the case, and the caliber of
the respective testimony herein is to be weighed; this in fact has been done. I turn
therefore directly to the issue of payment of funds to Davis.
Lee Caldwell, a staff representative of the Charging Union, testified about his
payments to Davis. Caldwell's demeanor has been carefully observed and appraised
by me. He was a witness who presented his testimony in a forthright and straight-
forward manner and, in my observation, did so whether it appeared to be helpful
to or harmful to his interests herein . Although he is an interested party herein,
I consider him to be an honest witness who testified consistent with the fact.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Caldwell, and I so find, Davis telephoned the union office in Port-
land in mid-February 1961.8 Davis volunteered the fact that he had some informa-
tion concerning "the spy system" at the two Harvey plants. As noted, Caldwell had
previously been contacted in January by Siemens on this topic. As Caldwell put
it, Davis then "laid before me a whole program of the spy system .. . he named
names. He told me how he turned his reports in."
Caldwell asked Davis, who had voluntarily left the employ of Wallace in No-
vember, to give a statement to the Board, and Davis, who lived in the Portland
area, expressed concern over the prospect of testifying at a hearing in Los Angeles
and the loss of earnings as an automobile salesman. Caldwell replied that the
Government would probably reimburse him for losses incurred during the presenta-
tion of his testimony. Thereafter, Davis demurred about signing a statement
and testifying, again expressing concern over an extended absence from the Port-
land area and the attendant expenses. Caldwell ascertained from the local office
of the Board what per diem was allowed to witnesses and, without detailing the
sum, it is a fair statement that the amount is at best nominal. Caldwell also
checked with his counsel and received permission to pay the expenses of Davis up
to the amount of $500.
He notified Davis that if he would sign an affidavit reflecting what he had told
him, Caldwell, and would testify consistently therewith, the Union would reimburse
his losses up to the amount of $500. He also testified, and I credit his testimony
in full, ". . . the only prerequisite I ever made to Cal Davis was that ... that he
was to tell the truth. If he had told me the truth in the things that he told
me this night I spoke to him, then he was to tell the same truth when he went
to the Board." 9
Davis testified similarly that in their initial contact Caldwell asked him to give
a statement and to "tell the truth of what happened." The record amply demon-
strates that Davis, as was the case with many of the witnesses herein, was beset with
financial problems and that he asked Caldwell for $300, whereupon he would "sign
what he wanted-tell the truth," and for $500 thereafter. Caldwell "stipulated
that it would be the truth and I said that it would be." Elsewhere he tesitfied that
Caldwell told him to "Give the facts as you remember them." On February 20,
1961, Davis, accompanied by Caldwell, visited the office of the Board in Portland.
Caldwell waited outside while Davis gave a six-page affidavit generally consistent
with his testimony herein. He left the building with Caldwell and was promptly
paid $300 in cash. He testified herein on June 14, 1961, and thereafter received
$500 from the Charging Union, approximately a week or 10 days later.
However, subsequent to his execution of the affidavit for the General Counsel,
he signed an affidavit for Respondent Wallace and received a total of $350 from
Wallace Ummel which, according to Ummel, was a "loan." 10 As elsewhere in
the case, there are sharp and irreconcilable conflicts between the versions of the
witnesses for the respective parties. Davis had voluntarily left the employ of Wal-
lace in November 1960 and was employed elsewhere as an automobile salesman.
Shortly before March 10, 1961, Ummel visited this establishment and brought up
the fact, according to Davis, that "this thing was coming up, this hearing, and that
he would appreciate very much if I would go along with him all the way . . . he
said that if I would go along with him, well, he would see that I was reimbursed
for it." [Emphasis supplied.] Davis expressed interest in the proposition and
stated that he had been offered $800 by the Union; Ummel replied that he would
match the offer.
9 It should be noted that the first charges had been filed in January with the Los Angeles
Regional Office of the Board
9 Respondent Harvey contended at the hearing that this was "purchased and perjured
testimony," this with reference to Davis' affidavits to the Board but presumably not with
respect to the affidavit, described hereinafter, that Davis signed for Respondent Wallace
and for which , as found below , money was paid to him by Respondent Wallace. The latter
was prepared by Wallace Ummel with the substantial assistance of General Counsel Max
Elliott of Respondent Harvey. This exhibit is described hereinafter . Suffice it to say at
this point that Ummel testified that "I prepared a part of it. I was assisted in the
preparation of it . . . by an attorney, Mr. Elliott. . . . I wrote out the thing to the best
of my knowledge , and Mr. Elliott changed some of the wording and emphasized the fact
that . to me, whether it was correct , and it was correct." IImmel further testified that
he told Cronkrite that he needed the services of an attorney after this case came to light,
and Cronkrite arranged for Elliott to get in touch with him.
10 It may be noted that prior to the time of this hearing , Davis did not disclose to
Board agents his receipt of money from the Union and from his former employer.
HARVEY ALUMINUM (INCORPORATED), ETC. 167
On March 10, Davis telephoned Ummel at home, stated that he needed money
desperately, and that he would sign a statement if he could get $200. Ummel
told Davis to appear at his office later that day and, according to Davis, "he would
have the money there and the papers there to sign." Davis who had heard that
former coworkers of his at the Torrance plant were signing similar statements,
signed a statement for Ummel and was given a check in the amount of $200.
Ummel, according to Davis, stated that he would have to show this on his books
as a loan. The sum has not been repaid and Ummel has not requested its repay-
ment. This check, as well as the subsequent check for $150 given to Davis by
Ummel, is in evidence. The payor is Wallace Detective and Security Agency and
the signer is Ummel's wife who is connected with the business and signs checks.
It bears on its face the word "loan."
On this occasion, according to Davis, Ummel initially handed him a copy of a
two-page affidavit executed by Ummel on February 25 and asked him to read it.
This affidavit, which is in evidence, is a document prepared by Ummel with the
assistance of General Counsel Elliott of Respondent Harvey and gives Ummel's
version of the contacts between Siemens and Cronkrite in June 1960 and describes
how Cronkrite retained Wallace ".to investigate the causes of substantial inventory
shortages and mounting losses of tools at the Aluminum plant." It also states, so
far as immediately material herein, that "Mr. Cronkrite emphasized that the assign-
ment of our operators was limited to the foregoing and that we were not to be-
come in any way involved in any union or other labor controversy or to take sides
in any discussions of any labor iaffairs or make any reports thereon." Later in
the affidavit, Ummel sets forth the instructions he gave his operators and states
that "I re-emphasized however, that any union associations or activities in which
they should engage were solely for the purpose of gathering information regarding
pilfering, thefts, and the disposal of stolen merchandise and that they were not to
investigate on labor matters." He later states that all investigations were carried
out strictly in conformity with these instructions.
Then, as was done with other employees or ex-employees of Wallace, Davis was
given a previously prepared affidavit to read and sign. Blanks were left only for
the name of the signer, his address, and for the date of Ummel's affidavit, as well
as for the pertinent data covering the notarization. Davis read and signed the
document and left with the check.
This document states as follows:
AFFIDAVIT
COUNTY OF MULTNOMAH,
State of Oregon, ss:
Calvin C. Davis,* 11 being duly sworn, deposes and says:
I am a citizen of the United States of America, over the age of twenty-one
(21), and presently residing at 4625 S. W. Poplar Ln. Portland, Ore.* From
time to time during the past year I have been employed as investigator and
operative by the Wallace Detective Agency of Portland, Oregon, and as such
investigated pilfering, thievery, inventory losses at the Harvey Aluminum plant
at The Dalles, Oregon, and the disposal of tools and supplies stolen from
the plant.
Mr. Wallace Ummel has shown me, and I have read carefully, his affidavit
dated 2/25/61* regarding the foregoing investigations. Mr. Ummel's said
affidavit completely and accurately sets forth the instructions which he gave
me. I complied strictly with these instructions in performing all my work
and duties throughout the Harvey plant investigation.
My activities and reports were confined to careful, thorough investigations
relating to the detection of the possible crimes above noted, the identification of
the perpetrators and the recovery of any stolen goods. At no time did I
investigate or report on any union or other labor activity.
(S) CALVIN C. DAVIS.
Subscribed and sworn to, before me, this 10th day of March 1961, at Port-
land, Ore.*
JANE E Sims,* Notary Public.
My commission expires: Oct. 3, 1964.*
11 * Means handprinted or signed
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In passing, it may be noted that not only was Davis' testimony as to subsequent
events in major conflict with that of Ummel, but that he further testified that this
affidavit was false insofar as it stated that he did not spy on union activities. He
also testified that Ummel's affidavit was untrue where it stated what Ummel's in-
structions were with respect to union activities.
Davis testified that the affidavit previously given to the General Counsel, which
was consistent with his testimony herein, was the truth; that he had knowingly
signed the Ummel affidavit which he knew to be untrue because he was eager
to obtain the $200 check and turn it over to his ex-wife who was pressing him for
funds; and that he would "have signed anything" on this occasion
On April 12, Davis signed a short affidavit for the General Counsel. He denied
therein that he had signed the March 10 affidavit for Ummel set forth above or
that he had read Ummel's affidavit of February 25. He did state, however, that
the statement in his March 10 affidavit that he at no time investigated or reported
on union or labor activity was untrue. Thereafter, another payment of money
was made by Ummel to Davis. Davis, .as he testified, telephoned Ummel approxi-
mately 1 month after the original disbursement of $200 and told him that he
needed money to pay a bill. Ummel replied that Davis should "Come and get
int." Davis complied and, on April 21, was given a check in the amount of $150
by Ummel. This check bore the same imprint as the previous one but was signed
by Ummel and stated on its face that it was a "Loan" to Davis
As for Ummel's version of the affidavit, his story is indeed a vastly different one
and warrants the thought that, if credited, he approached the stature of a martyr
who suffered much from Davis solely because of the friendship between their
wives, which dated back, according to Ummel, to their simultaneous confinements
in the same hospital and their respective deliveries of children on the same day
According to Ummel, Davis telephoned late in February, asked to see him, and
Ummel drove to Davis' place of business on the following day Needless to say,
this either points up that Ummel was a tremendously solicitous person and one
who was concerned over what was bothering Davis, someone who had been out
of his employ since November 1960 Davis told Ummel, according to the latter,
that he had been contacted by the Charging Union and offered a sum of money,
viz, $500 if be would testify "to the fact that we were spying on the union" in
Torrance and at The Dalles. Ummel replied that only "a pretty low form of
life" would engage in such conduct, i.e., present testimony of such a nature
Davis telephoned Ummel on the following day and stated that he had been con-
tacted by one, Caldwell, the chief hatchet man of "the Union," and that Caldwell
would pay him $500 "to testify in the right way" Ummel alleged that he ex-
pressed interest in seeing the actual payment of this "bribe" and Davis promised
to advise "Ummel of the time and place" so that he, Ummel, could arrange to ob-
serve "the payoff of the bribe."
Ummel did not hear from Davis for several days a't which time Davis telephoned
Ummel, according to the latter, and explained that he had not contacted Caldwell
or telephoned because he, Davis, had been briefly jailed in Tillamook over Wash-
ington's birthday on February 22 for failure to pay child support to his ex-wife 12
Several days later, Ummel contacted Davis at the latter's place of employment.
According to Ummel, Davis 'stated that he needed money desperately because he
was out on probation and did not care how he obtained it. He stated that he had
been offered money by the Union and thought that Harvey could produce some
funds to avoid trouble if Unimel requested it. Ummel promptly refused to engage
in any shenanigans of this nature. Davis then threatened to tell Harvey repre-
sentatives that he would testify about "informing on union matters" unless he was
paid off. He also said he would "sell out to the highest bidder."
In his testimony, Ummel stated that he ignored a number of subsequent telephone
calls from Davis, but this state of affairs did not last for long. During the first
week of March 1961, Davis telephoned Ummel, according to the latter, and said
he would like to see him. Ummel did not ignore this call but visited Davis on the
following day at his place of business Again, in my view, and particularly in
view of the statements previously attributed to Davis by Ummel, Ummel displayed
considerable interest in one he elsewhere portrayed variously as a dead beat, liar,
extortioner, and a despicable character. Nor is there any evidence that Ummel
took up these matters with any police authorities, although he characterized Davis'
plan to take $500 from the Union as a "pretty low form of life" To the con-
trary. he proceeded to "loan" him money
12 There is no dispute that this incarceration took place.
HARVEY ALUMINUM (INCORPORATED), ETC. 169
Davis stated that he needed $350 for overdue child support because his ex-wife
threatened to have him jailed . He also referred to having written "several bad
checks " Ummel replied that he could not afford to advance this money. Davis
then turned the conversation to a business proposition , viz, "If I [Ummel] would
lend him twenty thousand dollars, that he could set up in a mausoleum business"
elsewhere in Oregon . While Ummel testified that he " laughed" at the proposal,
he admittedly queried Davis concerning this proposition and elicited the background
of the venture . The meeting ended with Ummel 's suggestion that Davis contact
him in a few days , at which time he would "be able to lend him something for his
purposes , especially the child support."
Three or four days later , Davis telephoned Ummel and the latter returned the
call Davis stated that he was desperate for funds , that he and Ummel had been
friends for years, that their wives had been good friends, that their children had
been delivered in the same hospital room on the same day, and that he needed the
funds for his ex-wife . He did state that he had taken care of the bad checks.
Ummel told him to stop by the next day and he would loan him $200. Ummel
raised the question of repayment and Davis explained that it would be repaid when
certain property was sold It was on this occasion , according to Ummel, that he
again raised the topic of the affidavits previously discussed with Davis As Ummel
put it , "I also mentioned at the same time . . . that I had these affidavits that I
wanted him to sign" [Emphasis supplied.]
Ummel agrees with Davis that Davis came to his office on the following day,
March 10, and received the $200 check endorsed as a "loan ." He allegedly told
Davis that he needed the money back and wanted it repaid soon. Ummel re-
minded Davis that Davis had borrowed $20 the previous Christmas which had not
been repaid and Davis agreed to take care of this as well Ummel elsewhere put
it that "I asked if he would sign this affidavit I had asked him previous to this,
and, as long as he was coming up for this [ loan], I asked him if he would sign
it the same day that he came to the office " Ummel professed ignorance, as of
March 10 , that Davis had previously signed a Board 'affidavit at the request of the
Charging Union
Neither the $20 nor the $ 200 was repaid by Davis , despite the "loan" character-
ization of both by Ummel Then, in mid -April, Davis again telephoned Ummel,
according to the latter He stated that his ex-wife demanded funds within a few
days upon the threat of sending him to the penitentiary and he was desperate enough
to do anything. Ummel brought up the existing $220 debt and Davis assured him
that the property sale would take care of this and, further , that he had a lead on a
new job Ummel pointed out that he knew Davis had not turned over the $200
to his ex-wife and Davis admitted that he had not done so because he had lied about
taking care of the bad checks and the funds had gone for this purpose Ummel told
Davis he would " let him know in a day or two."
On the following day, Ummel "was scheduled to go to Tillamook ," by map some
70 to 114 miles from Portland according to the route used. In the course of his
visit, he called upon the first Mrs. Davis and made inquiries concerning the receipt
of child-support payment She verified Davis' prediction that the outlook for his
incarceration was favorable.
Davis telephoned Ummel's office 1 or 2 days later. Ummel then contacted Davis
and offered to lend him $150 and no more . On the following day, April 21, 1961,
Davis appeared at Ummel 's office and received a check similar to the previous check,
but in the amount of $ 150. It , too, was endorsed as a "loan ." Ummel told Davis
that he would not have received this "loan" but for the high regard Mrs. Ummel
had for the former Mrs Davis and her children Ummel also testified that he
regularly made loans to employees for personal reasons and has done so for former
employees . He identified an ex-employee to whom he had loaned sums on several
occasions.
In resolving this issue of credibility , the issue is not the character of Davis, so
stressed by the parties , but rather where the truth lies . The choice reduces itself
to an election between the testimony on the one hand of a witness who has accepted
money from both sides of the case and on the other band the unsatisfactory testi-
mony of two interested parties Of these two , one, Ummel, has already been found
to have presented unreliable testimony on a basic aspect of the case And the
other , Cronkrite , has presented fanciful testimony treated hereinafter concerning the
use made , or rather not made, by Respondent Harvey of the reports on pilferage,
testimony which defies credence.
As I have previously noted , the receipt of money does not mean that the testimony
of Davis is incompetent It means that it must be closely scrutinized with suspicion
and balanced against the character and caliber of the other testimony presented
herein. In essence , there are drawbacks to the testimony of all concerned, but on
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
balance, I believe for the following reasons that the testimony of Davis in this
instance is the more reliable indicator of what actually took place.
(1) Initially, Respondents contend in their brief that Ummel's handling of the
funds he turned over to Davis was on a higher plane than that of the Charging Union.
This distinction I am unable to appreciate. At least the Union told Davis to tell
the truth to the Board. This was far more than Ummel did, because he presented
Davis with a prepared statement and accompanied it by payments thinly disguised as
a "loan." I flatly reject Ummel's testimony which would have the payment to Davis
on the same date and occasion as the signature of the affidavit as being a pure co-
incidence and do not credit his claim that it was a loan. See U.S. V. Baker, 293 F.
2d 613 (C.A. 3), certdenied 368 U S. 914.
(2) Davis placed a woman he believed to be Mrs. Cronkrite on the scene at the
Cronkrite residence and both Ummel and Cronkrite flatly identified Mrs. Cronkrite
as present in the home. This is a case which was thoroughly investigated and tried
and few if any stones were left unturned. Indeed, even Mrs Siemens was interviewed
by an agent of Respondents shortly before she testified herein for the General
Counsel. Mrs. Cronkrite was and presumably still is the wife of General Manager
Cronkrite and was, I assume, available to testify and corroborate the testimony of
her husband and Ummel with respect to who was present in her home on this
occasion. While she may not be a disinterested witness, she is certainly less inter-
ested than her husband and Ummel in the present issue and she was ideally in a
position to testify as to the presence or absence of Davis in her home on the day
in question. As the Board pointed out in a recent decision, it "has long recognized
that an adverse inference may be raised by the failure of a party to produce available
evidence." International Association of Bridge, Structural and Ornamental Iron-
workers, Local 600 (Bay City Erection Company, Inc.), 134 NLRB 301.
(3) Ummel's testimony places Davis and Wagner on the scene solely because
"the main reason that I would bring them would be that they might as well ride
along with me as to sit there [in The Dalles] and do nothing." Cronkrite on the
other hand goes much further and assigns a reason. He admitted that he already
had their names and that he asked Ummel to bring the two men to his home "so
that I could get a look at them." I believe that if they were brought to Cronkrite's
home for this purpose, it was entirely logical and consistent to bring the first two
operatives into the home to receive instructions from a Harvey representative as
to what they were to do in the plant and how they were to go about it This is
particularly so, because Ummel was not familiar with the locality or the plant
setup.
(4) There is a peculiar intrinsic conflict in Wallace Ummel's own affidavit of
February 25, 1961. He states first that Cronkrite previously "emphasized" that
his men "were not to become in any way involved in any union or other labor
controversy or to take sides in any discussions of any labor affairs or make any re-
ports thereon." Ummel later deposes that he "re-emphasized to his operatives, that
any union associations or activities in which they should engage were solely for
the purpose of gathering information regarding pilfering, thefts, and the disposal
of stolen merchandise and that they were not to investigate or report on labor
matters."
Cronkrite testified similarly that at their second meeting or at the time when the
first two operatives came to The Dalles, he told Ummel "about the delicate labor
situation in The Dalles and had admonished him not to get involved in it or have his
people participate one way or the other . . I told him that our plant [was]
having a labor controversy with two unions . . . and it was a delicate situa-
tion . . . . I told him that I wanted him to make sure his people didn't participate
in the situation one way or the other."
As is immediately apparent, if Ummel pursuant to Cronkrite's instructions directed
his operatives, as he initially deposed, to avoid all involvement in union contro-
versies or in discussions of labor affairs, I fail to see how he could later tell them,
as he stated in the next paragraph, to restrict their union associations or activities
solely to gathering information concerning the alleged purpose of the investigation.
Even more startling, despite this elaborate predicate, is certain other testimony
by Cronkrite. About 10 days or 2 weeks after Davis and Wagner, the first two
operatives started, Ummel made a regular visit to The Dalles to talk to Cronkrite.
He entered the office carrying a bulletin or pamphlet distributed by organizers at
the plant gate and commented on their presence. Cronkrite explained "that those
were not our people . [but] people out there in an organizing campaign for the
plant." Ummel replied that he was "a little surprised . that he hadn't realized
that we didn't have a union in the factory." Cronkrite then explained "about the
organizing campaigns . . . and . . . why we had such a . . . delicate labor
situation."
HARVEY ALUMINUM ( INCORPORATED ), ETC. 171
Manifestly , this purported conversation looms as the height of ridiculousness
in the face of the prior specific instructions from Cronkrite to Ummel and from the
latter to his operatives . I believe it demonstrates further their efforts, not syn-
chronized in this instance , to tailor their testimony by excising therefrom vital matters
best forgotten.
(5) Corollary to the foregoing is the fact that this was no hasty impulsive act
on the part of Cronkrite . This entire undertaking , on his version , was to cope with
a critical situation , namely, extensive pilferage of tools. It was a matter which he
had admittedly gone so far as to clear with top management in Los Angeles, includ-
ing Lawrence Harvey, apparently a key official of Respondent ; the latter is briefly
involved in the alleged discrimination with respect to employee Dillon, discussed
hereinafter . This serves only to buttress my belief that he would have wanted to
check with , look at, and talk to the first .two operatives.
In addition , I have previously found that Cronkrite stated to Siemens that he
wanted to "ferret out" the union supporters and his denial that this word is not
in his vocabulary was not credited. This tends to corroborate the testimony of
Davis, attributing the use of this very word to Cronkrite in a similar context. Signi-
ficantly, the witnesses in this case were excluded during the taking of the testimony
and did not hear each other testify.
(6) Ummel flatly conceded with respect to reports treated hereinafter , while on
the witness stand, that he, Ummel, had "an extremely poor memory" whereas Davis
"had a very good memory and, in fact, it impressed me that he could remember
names and distances without writing them down " When next asked the specific
question, "You say you have a poor memory and Davis has a good memory?" he
replied , "His memory is better than mine in my opinion ...."
(7) Davis, in other respects , is corroborated hereinafter by other witnesses whose
testimony is found to be credible , reliable, and trustworthy . There is also not an
iota of evidence that he had prounion sympathies . That Cronkrite resisted union
organization in another case by engaging in unfair labor practices is disclosed else-
where herein
( 8) Ummel's explanation concerning these "loans" simply does not hold water.
He made two payments to an ex-employee who had owed him $20 for several
months and the first payment was made on the very day Davis signed a highly
significant and critical affidavit which had been prepared by Ummel with the assist-
ance of the general counsel of Respondent Harvey. If his explanation is to be
believed, he is undoubtedly a highly gullible person. I would assume that his
many years on the State police force , plus his time as a private investigator, would
endow him with some degree of skepticism with respect to human nature and
that he acquired this before being exposed to the catalysis of Calvin Davis. I deem
it significant that at no time, despite the threats of extortion he attributed to Davis,
did Ummel ever contact any police authorities despite his obvious familiarity with
them.
(9) In the final analysis, Ummel puts himself in the position of giving two loans
to someone he described as soliciting bribes and attempting to extort money from
him. This is hardly consistent with Ummel's position of complete righteousness
throughout this matter. While it is entirely conceivable that friendship of their
wives might tend to influence Ummel to loan money to an existing debtor, I do
not believe that, with knowledge of the pendency of this case and the filing of
charges against Ummel and Harvey, he would have made two "loans" to someone
he otherwise portrayed as a liar, a dead beat , and a "low form of life." Stated
otherwise , while Ummel may make bona fide loans to former employees, I do not
believe that he, seasoned by his police and investigation work, would do so to one
who was allegedly attempting to extort money from him and his client.
I find , therefore , that early in June 1960 , General Manager Cronkrite instructed
the first two Wallace operatives, Davis and Wagner, in the presence of Wallace
Ummel , to apply for work at Harvey through regular channels and, after hire, to
listen for "pro -union" discussions . He further told them that their sole purpose was
to "ferret out all pro-union men" and that they were to report these men to Cronk-
rite or Ummel , but preferably the latter , unless it was an emergency . Cronkrite
also instructed them that , if detected , they were to state that they had been em-
ployed for detecting "tool theft only."
C. Labor espionage at The Dalles
To set forth all the conflicts in this extensive record would render an already
lengthy report unwieldy and would serve only to lose sight of the forest for several
of the trees Accordingly, only those major ones sufficient to illustrate the merits
or demerits of the various contentions will be described.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 7, 1961, the morning after their meeting with Cronkrite and Ummel,
Davis and Wagner applied for work at the Harvey employment office in The Dalles.
On or about June 9 they were hired as laborers and assigned to different parts of
the plant. They were the only Wallace operatives for about 2 weeks. Davis re-
mained in this plant for about 6 weeks until sent to the Torrance plane for similar
work.
About 2 weeks after Davis and Wagner commenced work at Harvey, Cronkrite
requested Ummel to furnish two additional operatives. Ummel promptly arranged
for two of his employees then working as uniformed guards, Stanley Hahn and
William Miller, to report to The Dalles. They applied for work on June 22 and
were hired in the same manner as Davis and Wagner. A similar hiring technique
was followed with respect to the last operative at The Dalles, Carl Stark, who was
hired in September, and with respect to several who later went to work at the
Torrance plane. In all cases, Ummel furnished the names of the operatives to
Cronkrite.
Wagner last worked on July 15 and was given a termination interview on July
23 which discloses that he left voluntarily for other employment Hahn, a college
student, remained at The Dalles for "a little over two months" until he left to return
to college. His last day of work was August 10 and he was given a termination
interview on August 12. Miller remained until September 7, 1960, when he was
returned to uniformed guard service in Portland. Miller did not know of the em-
ployment of Carl Stark at The Dalles. Stark, also a uniformed guard, was assigned
to this undercover work at The Dalles in September and remained until approxi-
mately April 1, 1961, at which time he left of his own accord because of a nervous
condition brought on by "over-work, and over-drinking " After a 1-month absence,
he returned to work as a uniformed guard an Portland He was told by Ummel
that he was the only operative on duty and this apparently was the case.
Davis and Hahn testified in substantial agreement as to their services at The
Dailies which coincided for a period of approximately 1 month.13 Davis testified
that he followed the instructions previously given to him by Cronkrite and Ummel,
namely, to detect and report prounion adherents and also to look out for theft.
He reported the names of anyone who disclosed prounion sympathies and, in addi-
tion, did report one tool theft, discussed hereinafter. Consistent with instructions
from Ummel that reports were to be channeled through Davis, Wagner as a rude
turned names over to Davis for relay to Ummel. During the 6-week tenure of
Davis, he reported from 50 to 100 names to Wallace Ummel This total included
approximately 20 names detected by Davis personally and the remainder were sup-
plied by Wagner, Hahn, and Miller The technique utilized by Wagner was to give
Davis a slip of paper with data or else to report it orally to Davis who, in turn,
wrote it down There was no prescribed form for this report
Hahn, a college sophomore, substantially corroborated the testimony of Davis.
Hahn is a long-time friend and acquantance of Guard Captain Gerald McCarthy and
is also -a former schoolmate of William McCarthy, the latter's brother, who has
worked as a guard for Wallace In fact, the two young men attended high school
together and were roommates thereafter. After his college term was concluded, he
went to work for Wallace as a uniformed guard for approximately 1 week. After
this week, both Captain McCarthy and Ummel spoke to Hahn concerning work at
The Dalles. Hahn was in need of funds to continue his college education and,
noting that the pay was higher than his existing rate, gladly accepted Ummel told
him to apply for work in the normal manner After hire, according to his instruc-
tions, Hahn was to become friendly with his coworkers, "and find out who was talk-
ing up for the union and if there were any union instigators and also to watch for
pilferage and theft: and things that were detrimental to the company in general."
[Emphasis supplied.]
Hahn applied for work and was hired As in the case of the other operatives, he
received his regular wage from Ummel plus an additional hourly wage from Harvey,
although Ummel was the payor of the latter sum It is undisputed that Harvey
reimbursed Ummel for these expenditures Either shortly before or shortly after
Hahn started, he met with Davis and another operative; he did not recall whether
this was Wagner or Miller. Hahn testified that "I was supposed" to give a weekly
report to Davis about "any union activities or . . . union sympathizers; and also
about the pilferage and theft " He testified further that he did precisely that. Hahn
had not previously known Davis.
13 Hahn arrived 2 weeks after Davis started and Davis worked at The Dalles a total of
6 weeks during this period Davis was assigned to the Torrance plant late in July and
applied for work there on July 25 , as described below
HARVEY ALUMINUM (INCORPORATED), ETC. 173
According to Hahn, Wagner and Miller did the same work and he saw them turn
in reports to Davis The word would be passed around to meet at Davis' residence
at a fixed hour and the meeting would then take place. The group would meet at
Davis' residence and Hahn would turn his report over to Davis. He saw Miller's
written reports many times because the two men lived in the same roominghouse
and he observed Miller writing them out and making reference to "Union activities."
Hahn testified that he never turned anyone in for pilferage or theft The topic of
discussion at the meetings usually was when, where, and how to compile their reports
It is undisputed that Davis communicated and met with Ummel and made reports
to him, although Respondents dispute the contents of these reports. Ummel testi-
fied that he had instructed Davis to contact him by telephone or to see him, Ummel,
when he made a weekly mid-week visit to The Dalles, additional information was to
be mailed to Ummel. In fact, Ummel did return to The Dalles and met with Davis
by prearrangement 3 days after Davis was hired and this was followed by similar
prearranged meetings.
Davis testified that he would meet with Ummel on these occasions and repeat the
information brought to him by the various operatives, as well as his own information.
These mid-week meetings usually took place at a local cafe known as the Shamrock.
All these discussions, according to Davis, involved disclosure of the names of pro-
union people, with one exception whom Davis reported in connection with a theft.
There was no discussion of inventory shortages or stolen property. As Davis put
it, if anyone made a prounion statement, "I wrote that down and the man's name and
gave it to Mr. Ummel." He also on occasion supplied the badge number with or
without the name In addition to these meetings, Davis would return to Portland
on weekends and would contact Ummel on those occasions. He testified further
that he made no direct reports to Cronkrite concerning the prounion sympathizers
he had detected
Hahn testified that after Davis' departure for the Torrance, California, plant,
described hereinafter, he continued to make reports. He typed these reports and
therein "put down the names of the guys that I knew and how they felt about the
union and if they were talking it up about the union and if they were stealing and
just that what I was supposed to do " He came to town on weekends and turned
these reports in to Captain McCarthy, his long-time friend. The record discloses
that Hahn regularly visited and was a guest at the McCarthy home. He testified
that he turned in 1 final report with 36 names, approximately two-thirds of which
represented men identified by equally divided comments both of a prounion as well
as an antiunion nature The other third involved comments about the quality of
the work performed as well as the temperament of the men. I find that he identified
no one as engaging in pilferage.
Hahn did not receive any instructions to deliver these last reports to McCarthy,
but the record does not disclose that he was ever instructed to cease this practice.
McCarthy corroborated Hahn and admitted that on one or two occasions he had
been given sealed envelopes by Hahn for transmittal to Ummel, although he did
deny any knowledge of the contents. Consistent with Hahn's testimony, these de-
liveries were made at the McCarthy home on Hahn's weekend social visits with the
family. It is undisputed that Ummel relayed all reports by his operatives, other
than personal comments or original expense data, to Cronkrite, although as is ap-
parent the subject of the reports is in dispute. Indeed, Hahn testified and I find
that Cronkrite told him, in a conversation in his office just before Hahn left, that
he turned in good reports.14
Wallace Ummel, who had previously testified that much of the testimony con-
cerning the subject matter of the reports made to him, including the testimony of
Davis and Hahn, was "false," admitted that reports did come to him from operatives
assigned to The Dalles and later to Torrance, California. Written reports were in
the minority but were "normally [writtenl on irregular pieces of paper, whatever
paper they had available, written in longhand and more in the nature of a personal
note rather than a report " Ummel would then allegedly evaluate the material and
relay to Cronkrite only "information that was in the report that would serve the
purpose that we were hired for, that's for pilferage and theft." According to
Ummel, this was consistent with the principal instruction given to all operatives.
Ummel denied that be told Davis he was in charge of the operation at The Dalles
He testified further that he told Hahn that his primary responsibility was to detect
the theft of tools and that, as a secondary reason, he could report on employees who
claimed to be ill and were absent for 3 or 4 days at a time in order to frequent
14 Cronkrite denied that Hahn turned his last report In to him directly As I read
Hahn's testimony, he did not so claim specifically and only attributed this remark to
Cronkrite about the Last report turned In 1 or 2 days earlier
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
houses of prostitution in a nearby community. He allegedly instructed Hahn that
his reports could be made by telephone, to Ummel in person on his weekly visits, or
to Ummel when Hahn visited Portland on weekends. He recalled receiving two
written reports directly from Hahn as well as two oral reports in Portland. The two
oral reports were made during Hahn's first 3 weeks of employment and the two
written reports were delivered by Captain McCarthy. The first of the latter involved
Hahn's expenses, and the second, shortly thereafter, was delivered by McCarthy after
Hahn had left the employ of Wallace to return to college. This second report,
according to Ummel, had four to six names and also treated with expenses; the
names presumably were personnel involved in pilferage.
This last note was destroyed by Ummel after the names had been passed on to
Cronkrite by telephone. This was Ummel's customary practice as he allegedly had
no reason to maintain records at the time.15 It is undisputed that Ummel forwarded
to Cronkrite all information submitted to him by his operatives deleting only per-
sonal references and matters such as expenses. While Hahn testified that he typed
all his reports, Ummel claimed that these two written reports from Hahn were in
longhand. He denied receiving a list of 36 names, as testified by Hahn, or a list con-
taining any substantial number of names from him.
Ummel denied that any of his operatives had ever turned in a list of names of
union sympathizers. Testimony corroborative of Ummel was presented by William
Miller who started at The Dalles, together with Hahn, and worked until September 7.
Miller testified that although he made reports for 3 months, the sum total of all this
endeavor was that he detected nothing of any nature and consequently never had any-
thing to report. All his reports were made orally to Ummel until the last month
or so when he was told by Ummel to submit written reports; there was no change
in the content which was that he detected no pilferage, no "goofing off," and nothing
illegal going on in the plant.
According to Miller, he submitted about six written reports and delivered them in
person to Ummel in Portland on weekends. These reports are no longer in existence.
He was not instructed to report on any other topic and specifically received no
instructions to report on the union sympathies or activities of employees. It is sig-
nificant that Miller claimed he never saw anything which merited reporting. I find
therefore that, on his testimony, his reports perforce related to time, expenses, and
such matters. After 3 months of this, according to Miller, "the job was done, as
far as I could see and I reported to Mr. Ummel that there wasn't nothing that I
could find out there." On the following day, Ummel transferred him back to Port-
land where he resumed his uniformed guard duties and is currently so employed by
Wallace Ummel testified that Wagner never made a report to him during his
tenure from June 7 through July 23. Coupled with the absence of reports from
Miller, this tends to support Davis and Hahn that Wagner reported through Davis,
as did Miller.
Just who actually performed the job, in the eyes of Miller, is not disclosed by his
testimony. Even though his Harvey assignment was changed after Miller com-
plained that it kept him too busy, he was still allegedly unable to uncover any im-
proper activities during his last month of employment He claimed that he never
"especially contacted" Davis in connection with his work, but admitted that he
visited Davis at his apartment "not too frequently." He did recall two visits shortly
after his arrival in The Dalles when he, together with Hahn, visited Davis and Wagner
at their apartment. He allegedly had no knowledge how the other operatives re-
ported and assumed that they followed his practice of making reports directly to
Ummel.
As is apparent, this conflict is as extensive as previous ones. In resolving it, I am
particularly impressed by the testimony of Hahn, as well as his demeanor, which
is buttressed by the inconsistencies in Respondent's case, some of which are set forth
at this point. Hahn was a college student and active in employee sports activities
while employed with Harvey. He was greatly concerned with pursuing and obtain-
ing a higher education and impressed me as a young man of high standards whose
testimony had the ring of truth. In addition, he underwent a brief but pointed
cross-examination by skilled counsel which served only to convince me of the honesty
and correctness of his testimony.
In addition to the foregoing. there is evidence of a talk between Captain McCarthy
of Respondent Wallace and Hahn which serves to illustrate the integrity of Hahn
15 It may be noted that this is hardly consistent with the statement by IImmel in his
affidavit of February 25, 1961, prepared with the assistance of the general counsel for
Harvey, that this information would be used "in connection with suits to be brought for
the recovery of the stolen property or for referral to the public prosecuting agencies for
the initiation of proceedings by them "
HARVEY ALUMINUM (INCORPORATED), ETC. 175
and his reliability as a witness. Hahn testified herein on July 14 and 15, 1961.
Approximately 1 month earlier, he had been a visitor in the home of McCarthy.
This was a regular event, consistent with his long friendship with the two McCarthy
brothers. On this occasion, as Hahn testified, McCarthy asked him to sign a state-
ment. This was the form statement prepared with the assistance of Harvey counsel
which was signed by Davis on March 10, 1961, and also by others. Therein, the
signer swore that while employed as an investigator at The Dalles he "investigated
pilfering, thievery, inventory losses . . . and the disposal of tools and supplies stolen
from the plant", that he had read the affidavit prepared by Ummel; that the Ummel
affidavit "completely and accurately sets forth the instructions which he gave me";
that these instructions were strictly complied with; that the signer's activities were
confined to investigations of the above-stated crimes; and that "At no time did I
investigate or report on any union or other labor activity."
McCarthy told Hahn that Ummel "would really like to have me sign one of those."
Hahn flatly refused to do so and told McCarthy, as he testified here, "1 couldn't sign
it because it would be putting me in a position of perjurying [sic] myself." McCarthy,
as noted a vague witness who displayed great confusion on dates and events, ad-
mitted that he had asked Hahn to sign a statement in his own words as to the work
he had done. I credit Hahn that this was one of the form ,affidavits presented to other
Wallace employees who had worked at the Harvey installations. It is interesting
to note that Hahn had dined at McCarthy's home with the two brothers on the night
before he testified and had spent the night there, but nevertheless testified contrary
to the interests of his old friend.
I have previously rejected the testimony of Ummel concerning events at the
Siemens home and I am convinced that it is no more reliable in this instance.
(a) Ummel exaggerated in his testimony by attributing statements to Davis and
Hahn which had allegedly been made privately to him, Ummel, during the course
of this hearing. These statements presumably reflected on the bona fides of these
persons as witnesses. The statement he attributed to Davis is extremely vague and
not at all indicative of the emphasis placed upon it by Ummel. With respect to
the other, the record demonstrates that Hahn testified herein on June 15, 1961.
Ummel testified many weeks later and claimed that Hahn had approached him on or
about June 13, in or near the hearing room. Hahn then stated, "I don't know what
this is all about . It sure is a mess. . . . Why didn't you let me know " Ummel
allegedly then told him that "1 wanted you to sign an affidavit and I think that there
was an attempt made to get ahold of you " Hahn replied, "I'm sorry . . . You've
been good to me and you've lent me money . . . you gave me a job . . but . .
they scared me " Ummel asked who had done this and Hahn replied, "Some of these
people that came out to interrogate me." Ummel later testified that Hahn ad-
mitted someone had contacted him about signing a statement and that he either
refused to see the visitor or had refused to sign the statement.
A consideration of the foregoing only serves to buttress by appraisal of the testi-
mony of Hahn as contrasted with that of Ummel. For one thing, it corroborates
Hahn in his testimony that he had been approached with a request to sign a previ-
ously prepared statement. I also fail to discern how this testimony by Ummel sup-
ports the contention that he has made on the witness stand. It is at the very least
equally susceptible of the view that Hahn had been impressed with the solemnity of
the Board proceeding as well as the true and proper meaning of his oath. It is also
equally consistent with Hahn's credited testimony that signing and swearing to the
affidavit prepared for him by Ummel with the assistance of counsel for Harvey consti-
tuted perjury.
(b) Ummel admitted herein that Davis did report to him that Hahn had joined
the company baseball team and was active with the water skiing group. This is
entirely consistent with Hahn's testimony that he was instructed to circulate and
meet as many people as possible and that, consistent with his interests in the athletic
field, he joined these groups. It also discloses that Davis did make reports concern-
ing other operatives, contrary to Ummel's claim that he did not. In fact, Ummel
was elsewhere asked the question, "Did you receive reports from one of your op-
erators who would be submitting information of what he, himself, had seen, but, in
addition, information given to him by other operators? Did that happen from time
to time9" Ummel replied that this did happen and then he was asked, "Well, let's
get specific. What about Mr. Davis? Did he from time to time make that kind of
a report?" Ummel in reply stated, "I would say that he did." [Emphasis supplied.]
(c) Ummel's testimony that he did receive a "final" report from Hahn with names
on it is basically corroborative of the testimony of Hahn that such a report was
submitted. The only difference between them is in the number of names contained
therein, and, of course, the purpose.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) As for Miller, he also testified that in February 1961 he signed an affidavit
identical with that signed by Davis and with that rejected by Hahn. He was asked
whether his statement therein that Ummel's affidavit, adopted by his affidavit,
accurately set forth the instructions given to Miller He replied, "Not that I re-
call . I wouldn't say he didn't give me those instructions, but I wouldn't say he
did either."
He further testified similarly that he did not recall being told by Ummel, as the
latter deposed in his own affidavit, that "I instructed these operatives to become
affiliated as quickly and widely as possible with the various employee groups and
activities such as recreational or welfare associations, bowling leagues, baseball
teams, employees' parties, and picnics, so as to quickly become acquainted with a
large number of employees and thereby obtain information from them." This, as
is apparent, goes to the crux of the matter, that is, the nature of the instructions
given by Ummel to his operatives, and is presumably a matter which Ummel handled
with great care
The affidavit of Miller was signed under the same circumstances as the others
That is, while in the employ of Ummel, he was summoned to Ummel's office and
introduced to Cronkrite and to General Counsel Elliott of Harvey Elliott pre-
sented him with and asked him to read Ummel's affidavit. Ummel then asked Miller
to sign the affidavit and Miller did so.
The testimony of Miller, on its face, presents a ludicrous aspect For he claims
that he spent almost 3 months at The Dalles but found and reported precisely nothing.
Although as Respondent's counsel put it, there was "a very serious problem of
pilferage," this employee allegedly found absolutely no traces thereof, was trans-
ferred to another job, and still found nothing. At the same time, according to
Ummel, reports on pilferage were coming in from Davis and Hahn. Indeed, even
Ummel contradicted Miller because, according to Ummel, a report based upon
Wagner's work was relayed through Miller, contrary to the latter's testimony that
each operative handled his own reports and that he never reported anything sub-
mitted to him by anyone else.
(e) The contradictions and self-contradictions of Ummel are numerous herein
and space forbids reference to all One example is his testimony that Cronkrite
told him at the outset, and he so instructed his men, that Respondent also wanted
information concerning employees "goofing off" to visit houses of prostitution He
was entirely unable to reconcile this with his affidavit of February 25, that the in-
formation gleaned herein was to be used "only in connection with suits to be brought
for the recovery of the stolen property or for referral to the public prosecuting
agencies for the initiation of proceedings by them." Even Cronkrite testified that
it was not Ummel's function to report on "goofing off" at The Dalles and, further,
that prostitution was not a relevant factor at that location. In addition, operative
Carl Stark, who testified for Respondents, disputes this assertion by Ummel The
testimony of Cronkrite as to what was done, or more accurately as to what was not
done with this information, is treated hereinafter and the credibility of Cronkrite
is further considered at that point.
(f) Respondent has presented the testimony of operative Carl Stark who told of
considerable success in uncovering theft In addition, numerous reports by Stark
were produced and introduced in evidence. These reports named employees and,
in fact, named several flagrant repeaters. As will also appear hereinafter in more
detail, none of these were discharged or disciplined in any manner, no criminal
prosecutions were undertaken, and no action was taken against any receiver of
stolen goods.
One interesting exception to the foregoing should be noted, however A foreman
was turned in by Calvin Davis for stealing and selling an expensive piece of equip-
ment. After allegedly being spoken to by Cronkrite, he retrieved the tool from the
purchaser and returned it to Respondent Harvey. Two subsequent thefts by him,
reported by Stark, were ignored. It may be further noted that, as Davis testified.
he had reported this foreman or leadman as one who would vote against the Union.16
Although no one was disciplined for thievery, this additional information perhaps
supplies an additional reason why Sluder, despite his title, was not disciplined In-
deed, Davis uncontrovertedly testified that when he checked out of The Dalles to
report to Torrance, he told Cronkrite that he did not think this foreman should be
discharged for his theft because "he was a good company man; he definitely said
he was going to vote against the union. . . .
"The foreman was named Sluder but his name is variously spelled in the transcript
and exhibits.
HARVEY ALUMINUM (INCORPORATED), ETC. 177
The General Counsel points out that the failure to discipline these culprits con-
trasts oddly with Respondent's policy in previous unfair labor practice cases cited
above. Thus, in General Engineering, Inc. and Harvey Aluminum (Incorporated),
131 NLRB 648, two individuals were discharged for allegedly stealing several
dollars worth of grain sweepings left in an empty railroad car. Significantly,
Cronkrite was involved in those discharges as well as in the present case.
Also persuasive in the Stark matter is the fact that he was engaged in this under-
cover work rather late in the day. He testified that he was not assigned to The
Dalles until "The first part of September" and further that Ummel told him he
was the only operative there. If this is so, he arrived after the departure of Miller
who was at The Dalles until, as Miller put it, ",the middle of September." This is
a significant date because it is a date after this undercover work was discovered and
exposed at the Torrance, California, plant, as appears below.17
The testimony of Davis places his exposure at Torrance and thereafter at The
Dalles late in August. Madge Pesek, a witness for Respondent concerning the
Torrance operation, left subsequent to her exposure and her termination interview
states that her last day of work was September 30. The testimony of Ray Ummel,
Wallace Ummel's brother and a Wallace operative, also places the exposure at the
end of September. Indeed, pamphlets published and distributed by the Union
at the Torrance plant referred to the use of paid labor spies by Harvey and, as
will appear, accurately so
In essence then, Stark's tenure at The Dalles commenced after Davis was regarded
with suspicion by employees at both plants and shortly after or about the time the
spying activity in southern California was being exposed. His documentation of
reports has all the earmarks of an afterthought and would certainly seem to be a
natural coverup technique of placing an operative at work for an ostensibly legitimate
purpose. And, for that matter, it would be an equally understandable technique
to place an operator on the scene at the same time that the labor espionage was
being carried on and to have him devote himself to legitimate work. This view
as to Stark is reenforced by the fact, as noted, that absolutely nothing was done
about the extensive reports by him containing names, dates, and facts.
In a general attack upon the credibility of Hahn, Respondent has raised another
topic. In his cross-examination, Hahn was asked to furnish the names of anyone
he listed in his reports who was "chewed out" by management after the name was
turned in. Hahn then supplied the name of Clarence (Bud) Hobart. Hahn testi-
fied only that he observed Foreman Harvey Emett visibly reprimanding Hobart,
that he did not hear the conversation, and that Hobart ,then came over to him,
Hahn, and stated, "I just got chewed out for talking it up for the Union," telling
Hahn that another employee was probably informing the office about him.
Hobart and Emett testified for Respondent herein, but, in my view, they give
support to Hahn. Hobart testified that he saw Hahn post a list of names on the
bulletin board This is the list previously referred to and Respondents attempted
to tie it in with the final list of names turned over by Hahn to Ummel when Hahn
left The Dalles in mid-August. However, Hobart also testified that, prior to this
posting, he, Hobart, did have a conversation with Foreman Harvey Emett. Hobart
explained on the witness stand that he had heard rumors from different persons to
the effect that "I was being connected with the union." Accordingly, he went over
to Emett and told him that he was "sick and tired" of such stories and wanted to
know the source Emett in turn became angry at Hobart's method of approach or
tone of voice and told Hobart that he could not talk to him "that way." Shortly
thereafter, Hobart apologized to Emett who told him to forget the incident.
Emett's testimony was to the same general effect, viz, that Hobart was somewhat
excited and stated he was fed up with rumors about his "union activities" and about
his name being on a list. Emett pleaded ignorance in the matter. Shortly there-
after, Hobart returned "and apologized to me . for . jumping at me with
the question." Emett passed it off. Emett admitted that Hahn was in the area
of the time of the incident. Hobart testified that he saw Hahn daily in the plant
but that he did not "remember saying anything" to Hahn or to anyone else about
this incident Inasmuch as Hahn is placed on the scene, I credit his testimony
that Hobart did speak to him And the text of the conversation does support
Hahn's conclusion, in response to the question put to him by counsel, that Hobart
was "chewed out" by Emett in the course of a conversation dealing with Hobart's
purported union activities.
11 Stark's personnel security questionnaire was filled out on September 12 His applica-
tion bears the date January 15 , 1961 . The fate of his original application is not disclosed
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent argues in its brief that Hahn, a college sophomore, acted in a sopho-
moric manner. Actually, the testimony of Cronkrite with respect to reports from
Wallace operatives, taken at face value, comes closer to the term "sophomoric."
The issue is whether Hahn told the truth on the witness stand. I believe it, there-
fore, to be in order at this point to treat with Cronkrite's testimony, with particular
reference to the use made by him of the reports turned in to him from Wallace
operatives.
I have previously stated, in resolving several basic conflicts of testimony, that the
testimony of Cronkrite has not been credited. And, in this particular instance,
he has flatly denied that he arranged for any labor espionage at The Dalles or
that any reports thereof were made to him. He testified that he concluded that
tools not only were being taken but that they were being sold because some were
tools not normally used in the home workshop. He testified that at his two meet-
ings with Ummel, shortly after being visited by Salesman Siemens on June 2, 1960,
they discussed only two purposes for this employment. According to Cronkrite,
"I specifically wanted him [Ummel] to try and locate the fence, as well as those
who were taking the merchandise."
It is chiefly because of this testimony, together with his testimony as to the use
or rather nonuse of reports made by Wallace operatives, that Cronkrite's testimony
has not been credited in this report. My reasons are as follows: Cronkrite testified
that Ummel contacted him "practically every week" in person or by telephone.
Ummel made reports based upon the work of his operatives. The record dis-
closes that Ummel sifted this information from his operatives and then made
his own reports to Cronkrite. At a later date, the last operative at The Dalles,
Stark, started to type his reports in duplicate and Ummel would forward a copy
to Cronkrite. The earliest of these is dated in March 1961. As late as February
1961, reports emanating from Stark were prepared in the original manner.
The reports in evidence commence with two from Calvin Davis on July 9 and
19, 1960, and both relate to the same individual In the first, Davis reported that
a foreman had stolen an impact wrench. In the second, Davis supplied his name
and reported "SLUDER stole an Impact Wrench and sold it for $35 00 to Phillips
66 Station in The Dalles next to the Terminal Cafe. SLUDER stated that he
steals from Harvey to get his mad money." As indicated, Sluder's name is vari-
ously spelled in the record. It also appears that he may actually have been a
leadman rather than a foreman.
One so-called report from Hahn, the original of which is in evidence, reflects
only expenses.
The remainder of the reports from The Dalles are a series of written reports
from Carl Stark devoted almost entirely to the detection of pilferage.18 On Sep-
tember 21, Stark reported that Johnson, the foreman of the tool crib, had an-
nounced his intention to steal a heavy aluminum pipe for use as a roll bar on an
employee's racing car. He also reported that Johnson had announced his intention
to have it tooled on company time by company employees and that he planned to
write a pass so that an employee could take it past the guards. Stark also re-
ported that the bookkeeper in the tool crib, Aldridge, had stolen a pair of tinted
clip-on safety glasses for personal use.19
On September 30, Stark reported that a forklift driver, Schmidt, was stealing
milk from a cooler and had announced his intention to steal aluminum sheeting.
Schmidt had also stated that chain saws and a wheel-barrow had been stolen and
that the thieves had thrown them over the rear fence and had retrieved them after
work. Stark added that "It is quite evident by now that substantial thievery in tools
is going on ... It is fairly evident that this type of thievery of goods with HARVEY'S
name on them are [sic] being bought by someone in this area..... [Emphasis
supplied.]
On November 7, Stark reported that Rooper, a tool crib attendant, was regularly
stealing a motor oil additive stocked in the tool crib which he described as "a very
expensive item."
On November 11, Stark identified an employee carrying badge 262 as stealing a
small tool kit and "other items" for his home use. This employee allegedly
boasted that he could "walk off with the plant because the guards are stupid." In
la l shall set forth the nature of the observations made and also the names. These
are supplied because, as will be apparent , some were flagrant repeaters and none was
disciplined.
1e The tool crib was the central storage area fot tools and equipment and was particu-
larly vulnerable to theft Needless to say the honesty of tool crib personnel was vital.
Stark was assigned there during his entire tenure.
HARVEY ALUMINUM (INCORPORATED), ETC. 179
the same report, Stark identified a leadman named Nick as one who had asked
him "to turn my back so he could take some rolls of plastic tape." Nick also
pointed out that guards on his shift were "good guys" and would not interfere.
On December 3, Stark reported as follows:
NICK WHITAKER, Lead Man stole four rolls of Rubber Electricians tape.
He claims he is making up for his low salary. I think he must have an out-
side market for this tape. [Emphasis supplied.]
WHITE, badge #446 stole four Flood Lights and some sand paper. He
took them out in some dirty clothes.
On December 11, Stark reported as follows:
LES ALDRIDGE, Tool Crib Clerk took a set of spark plugs. He also is
taking light switches and wall plugs home for his house.
KLAPRIDGE, Electrician Helper, took 40 high speed drills home, he also
took 15 feet of 1000 watt wire.
On December 17, only 2 weeks after first referring to him, Stark again named
Leadman Whitaker as having stolen a bearing for his Volkswagen automobile.
On December 28, Leadman Whitaker was named for a third time, Stark report-
ing that he stole a roll of #27 Scotch tape. In the same report, Maintenance Fore-
man or Leadman Sluder makes his second appearance. The report states that:
ED SLUDER, maintance [sic] Foreman asked some of his mechanics what
size spark plugs his personal car used, when they told him he went directly
to the Tool Crib and got a set, the plugs immediately dissapeared [sic].
On January 4, 1961, Stark reported that employee Eveland "stole sixty drill bits,
size one to sixty. These drill bits are valued at $24.00." 20 In the same report,
he also identified employee Twidwell, whose name appears regularly below, as
stealing a container of Elmer's Glue.
On,the next day, January 5, Stark reported Eveland for .the second time, stating:
NELSON EVELAND stole a i/4 inch Thor Electric Drill Motor. This
motor was laying on the back of a Yale Fork Lift he was working on. He took
this motor out the gate in one of his rubber overshoes. The motor was plainly
marked "HARVEY ALUMINUM."
In the same report, he also informed that employee Schumman and his helper,
Kapplinger, had each stolen "an expensive Air Gauge."
The names of Sluder and Eveland are also set forth in this report, the third refer-
ence by Stark to Eveland and the second by him to Sluder. Therein Stark stated:
SLUDER asked EVELAND to get a complete set of drill bits and a set
of reamers from the Tool Crib but to be sure not to sign for them, he then
noticed the stock was low and there was some on order, he told him to wait
until the new shipment came in and they would not be missed. EVELAND
told me that SLUDER could steal his own tools, as he was to [sic] busy stealing
his own for himself.
On February 8, Whitaker makes his fourth appearance. Stark reported that
Whitaker had stolen three rolls of plastic electrical tape and had stated that he
"just loves to steal things" and was seeking a cutting torch valued at approximately
$40. The report had this additional reference to Whitaker and stated:
NICK WHITAKER also told me that about a year ago ROBERT STEWART,
machinist, signed out a Beebe Bros. hand winch. He signed this out to take
home for a job there, WHITAKER has been using this Winch on his ranch,
WHITAKER said he told STEWART to find the sign out slip and tear it up so
he could keep the winch. This also proves negligence in the Tool Crib
bookkeeping system.
Stark also reported that an electrician, Holte, had stolen a radio tube for home
use
On February 9, Twidwell is named for the second time, Stark reporting that he
had taken home a 15-inch crescent wrench and now wanted some paint. It is
significant that in this same report Stark named a suspect as a fence in the area,
stating that:
20 The basis for this price valuation , whether employer cost or retail value, is not
disclosed.
672010-63-vol 139 13
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REDS TRADING POST, The Dalles, recieves [sic] and sells HARVEY
PROPERTY. LES ALDRIDGE, Tool Crib Clerk stated that Reds is known
to have bought $300.00 Diamond Edge Saw Blades stolen from HARVEY and
then resold to a contractor for $150.00 after paying $100.00 for them from
the man that stole them.
On February 17, Twidwell appears for a third time, Stark reporting that Twidwell
had stolen a propane torch kit and had taken it out through the gate in his lunch
pail, 'boasting that the guards did not check him because they were his friends. In
the same report, Stark reported that employee Miles had admitted taking home
two paint brushes and also a can of spray paint.
There were five additional reports from Stark in March and April 1961. These
were typed by him personally and submitted in duplicate with one copy then trans-
mitted by Ummel to Cronkrite. The March 19 report lists Twidwell for the fourth
and fifth times and Whitaker for the fifth. It states as follows:
On March 15, Dean Twidwell lead man on the pot digging crew, supervised
by Matteson, took a propane torch, and a package of steel wool home in his
lunch pail, this is the second pripane [sic] torch he has taken, this one didn't
work so he intends to bring it back and trade it for one that does work, when
you are ready to pick him up let me know and I will send the word by tele-
phone and you can catch him with the goods, I suggest in the meantime you
don't enforse [sic] a search, it may make him suspicious and you may not hit
the day when he has stolen goods in his possession.
Nick Whitaker has made what he says is his final theft, he finished his work
on nights and is going on days, he says he can't get stuff out on days, he
took the following tape home Friday night, 1 roll of Scotch 27, 1 roll of
Scotch 88, 1 roll of Okaprene high voltage tape, he has a complete collection of
tape at home now, he keeps it m a closet in his home, plus a hand winch that
I reported some time ago, and various bolts and nuts, he has never failed to
take something home after work.
Also on Twidwell, I forgot to mention 1 can of green spray paint on March 16.
P. S. My expences [sic] are 20 dollars this week If you want to pick up
Twidwell let me know and III [sic] try to notify you at the right time. [Em-
phasis supplied.]
The March 26 report is lengthy and mentions Whitaker for the sixth time. It
reports that Whitaker arranged to have his helper take a pair of welding gloves
through the gate and then turn them over to him. It also mentions that an elec-
trician's 'helper, Kapplinger, stole a bronze gate valve and further that Kapplinger
was looking for a set of front wheel bearings for his automobile. Warehouseman
Oats is reported as stealing a box of assorted faucet washers.
In this same report, Twidwell is reported for the sixth, seventh, and eighth
offenses as stealing flex tubing on March 20, aluminum rods on March 22, and two
cans of spray paint on March 23. In addition, two electricians, Payne and Parmelle,
were reported as discovering $974 worth of drill press parts in the plant and giving
serious consideration to taking them through the gate and selling them at half price.
Stark also reported that he had secretly marked two propane torches which were
identical with one he had seen for sale in a gas station, in the event that these two
were stolen.
On April 1, Electrician's Helper Klapprich appears again and is named as steal-
ing three files and a key for the chuck on an electric drill. Twidwell is named for
the ninth time as stealing one can of spray paint. Stark concludes by saying, "If
you want any men leaving the plant with stolen goods red handed set up a way for
me to tip you off." There is no indication of any response to this request. [Em-
phasis supplied.]
On April 9, Mechanic McAlpine is reported as stealing two cans of Krylon paint,
and employee Short as stealing a screwdriver, a hacksaw, and a blade for the latter.
Twidwell appears a 10th time as stealing two cans of paint.
On April 16, employee Short appears again and is named as stealing a pipe wrench
as well as a kit containing wire fittings. Twidwell makes his 11th appearance by
taking a can of spray paint; employee Hendershot is named as making hunting knives
on company time and having sold 10 of them, as well as stealing light bulbs; and
Foreman Raynor is named as stealing a bowl and 2 fittings for his tractor.
As stated, Cronkrite allegedly engaged Wallace for two reasons: (1) to identify
those employees who were stealing tools and supplies so as to put an end to this
activity, and (2) to identify the source or fence to which some of this equipment
was being sold, presumably with the object of criminal prosecution. It is readily
apparent that the Stark reports provided a wealth of data not only as to what was
HARVEY ALUMINUM (INCORPORATED), ETC. 181
being stolen but also the dates, the identity of the employees taking the merchandise,
and even their plans for future thefts. Significantly, several specific leads were sup-
plied by Davis and Stark as to the local concerns which were allegedly buying some
of this stolen property.
It is now in order to consider precisely what Cronkrite did with this information
or more accurately did not do. The answer is arrived at rapidly because he did
precisely nothing except for one purported reprimand. There were neither dis-
charges nor disciplinary actions; in fact, no action was taken with respect to the
suspected fences. Various reasons have been assigned by Cronkrite for this failure
to act and these are now considered.
(1) Cronkrite contended at one point that the number of thefts had been re-
duced. There is no evidence to support this contention.
(2) Cronkrite contended elsewhere that he decided not to discharge any of those
turned in for stealing merchandise and property because of the pendency of the
charges herein. The simple answer is that this is hardly a valid reason for an em-
ployer wishing to eliminate substantial and repeated thefts. I fail to appreciate
how this could affect Respondent's legal position on an espionage charge as the
present one. Secondly, there is no evidence that this negative course of conduct
was adopted pursuant to any legal advice. Thirdly, the charges were not filed
until late in January and February, long after Stark's documented reports had
commenced in September.
(3) Even Ummel testified that Cronkrite told him this evidence was to be used
in connection with lawsuits to recover the stolen goods and for reference to public
prosecuting agencies. As indicated, no such action was even commenced.
(4) Cronkrite testified at one point that he had disciplined Leadman or Foreman
Sluder for stealing a piece of equipment. Further questioning disclosed that this
discipline consisted of discussing it with Sluder and accepting his offer to retrieve
this tool, worth between $150 and $200, from the source to which it had been sold
and to return it. Cronkrite testified that this employee who did not testify herein
had been carefully watched thereafter. This, however did not prevent Sluder from
engaging in at least two subsequent thefts, as reported by Stark. It is significant that
these two preceded the filing of the charges relied upon above by Cronkrite, and
still these transgressions were entirely ignored. Indeed, offenders who removed
property far more frequently than Sluder were similarly ignored.21
(5) Cronkrite testified that Ummel was not told what to put in his reports. I am
unable to appreciate just how this can be reconciled with building a case for months
against thieves and fences with the object of criminal prosecutions.
(6) There are several references to possible fences of the stolen materials.
Cronkrite testified about one who was reported in connection with the Sluder incident.
Stark, in the above-quoted reports, lists another but no action was ever taken with
respect to any of them.
(7) Cronkrite claimed that he concluded that one of those named as a fence, a
truck stop, was not a fence. He supplied no reasons for this conclusion and none
appear in the record.
(8) Cronkrite testified that both Ummel and -local sheriff, who did not testify, had
told him there was insufficient evidence to result in a conviction of the source or
sources identified as fences. This is coupled paradoxically with other testimony that
Cronkrite ignored thefts of parts usable chiefly in the home in the hope that the
thieves would become so emboldened as to steal items of commercial value which
would then lead Respondents to the fence. This serves to point up the fact that
some of the stolen equipment obviously had commercial value, including the impact
wrench taken by Sluder and valued at $150 to $200; a torque wrench valued at
$250; and a pipe threader valued at $600 or $700. Cronkrite was asked why he did
not pursue with Ummel or the sheriff the question of action on these thefts. He
replied that "I've got a few things to do rather than worry about a guy stealing a
little can of paint." The record does not disclose what Cronkrite envisaged as a
large can of paint.
(9) Cronkite testified that he thought Sluder would lead him to the fence. It
may be noted that Sluder was turned in by Davis as expressing antiunion feelings
and this was prior to the references to Sluder by Stark in later reports. There is no
direct evidence that Sluder was watched with this object in mind.
n At one point , counsel alleged that the disclosure at this hearing that Wallace no
longer had undercover agents at The Dalles would lead to renewed thefts . I fail to dis-
cern how this could worsen a flagrant situation so long tolerated by Harvey on this
posture of the case Harvey 's indifference of such long standing perforce gave the male-
factors sufficient incentive independently of the present disclosures.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(10) Again Cronkrite testified, in diametric opposition to his other testimony and
incidentally contrary to one stated purpose for the investigation, that "I do not favor
prosecution for a small tool theft. The policy I use is discharge from the
employment."
(11) Actually, the entire matter of this thievery, so strongly and seriously raised
by Respondent became a matter of visible humor with Cronkrite. When questioned
concerning the numerous references by Stark to Whitaker, as stealing company prop-
erty, his attention was directed to Stark's comment that this employee was seeking
a cutting torch. Cronkrite conceded that the employee had probably stolen one
thereafter, all this with no discipline whatsoever. This was consistent with his
approach to the other employees who were turned in so regularly, Cronkrite believ-
ing that they would get bolder and bolder and steal more expensive items, ultimately
leading to detection of the fence. Just how much more expensive Cronkrite antici-
pated these items to be than the high priced articles listed above is not disclosed.
(12) Cronkrite testified that he had held a discussion with the sheriff and as a
result retained one employee whom he suspected of selling to the fence until enough
evidence could be accumulated to prosecute the fence. Just what evidence he was
awaiting of a better grade than that produced by Stark is not disclosed. Indeed,
Stark's proposal in one report to set a trap for the fence was ignored as well as the
fact that Stark had secretly marked two torches which he considered ripe for theft.
(13) There is an interesting conflict between Cronkrite and Albert Hinz, Respond-
ent's director of industrial relations, at the Torrance plant. As will appear below,
Cronkrite and Hinz were intimately involved in the assignment of operatives to the
Torrance plant. Presumably, Respondent Harvey's industrial relations policy is
identical at these two plants, particularly so inasmuch as Cronkrite acquainted
Lawrence Harvey with the basic employment of the Wallace agency. Yet, in con-
trast to Cronkrite's claim that he discharged culprits when they were caught in
"small tool thefts," Hinz claimed that it was not Respondent's policy to punish for
minor offenses, but only for "major" ones. As Hinz put it, "If something, of course,
had been on a major nature we would have pursued it, but under the normal petty
thefts it's always been our policy to correct a situation more so than to try to punish
any individual. So we were not actually interested in the names." This of course
had reference to names developed in the investigation at the Torrance plant.22
(14) Ummel made one significant report to Cronkrite concerning the investiga-
tion at the Torrance plant discussed below. This investigation was allegedly of a
generally paralleled but not identical nature. On this occasion Ummel reported to
Cronkrite that, according to his operative, "some of the employees would be happier
if they had ... retirement of seniority rights." One immediately notes that this is
not remotely linked to investigations for pilferage or related subjects. To the con-
trary, it is clearly pinpointed to employees engaging in concerted and union activities
.ti order to obtain better working conditions.
(15) Needless to say, it takes little acumen to read the Stark reports and conclude
that employees were getting bolder and bolder and proceeding to steal as frequently
as possible. Respondents' case, at face value, would have all of this tolerated and
ignored for reasons which are not accepted. I do not believe that a national con-
cern of this size would tolerate such a condition, absent a more cogent reason than
that advanced herein. Needless to say, if the thieves were dismissed, as they properly
could and should be, there would be no problem of a fence and all thefts would be
controlled, those for home use as well as those for resale.
(16) Cronkrite allegedly told Salesman Siemens that Respondent was happy with
its guards, but needed to take action with respect to pilferage. However, the Stark
reports introduced much evidence of laxness on the part of the guards and, so far
as this record discloses, Respondent took no action in this area.
All in all, where the investigation was being carried on by an experienced investi-
gator and where Cronkrite was an old hand at plant management and labor relations,
as the various cases show, this contention with respect to the true purpose of the
investigation is best described as being of a porous nature. Stark's reports signifi-
cantly started after the Torrance investigation, described below, had been exposed.
But Cronkrite's treatment of them, that is, his complete failure to take action of
any sort impels the conclusion that Stark was assigned to make a record only for
purposes of defense to this proceeding. In view of these considerations, I reject
Cronkrite's testimony as to the purpose of the investigation and do not consider him
^This overlooks Cronkrite's other testimony that he could not be bothered with petty
thefts of paint. Hinz' testimony is also contrary to other conduct on the part of Cronkrite
who was involved in 131 NLRB 648 in the discharge of two individuals for allegedly steal-
ing a few dollars worth of grain sweepings from empty railroad cars, conduct which the
Board found to be discharge for union activities
HARVEY ALUMINUM (INCORPORATED), ETC. 183
a reliable witness. Indeed, Cronkrite even rejected a purported proposal by Ummel,
according to the latter, that suspected thieves be watched and searched when the
occasion warranted.
Assuming that Harvey really wanted to act with respect to this pilferage, it had
all it needed While the prosecution of a fence or an employee for theft would have
to meet a standard of proof beyond a reasonable doubt, this is hardly the case with
respect to the termination of an employee. Harvey was given names, dates, and
facts by Stark whose testimony it vouchsafed herein. It had only to act. None of
the names turned in were connected with any union or concerted activities, so far as
Harvey knew, and I am therefore unable to visualize any legal penalties that would
stem therefrom. Nor can it be contended that Respondent Harvey was not knowl-
edgeable in this area. For the Board decisions in the prior cases show that its
general counsel, Elliott, as well as Director of Industrial Relations Hinz, represented
Respondent in at least some of these cases. In sum, Respondents have claimed that
"thousands and thousands of dollars worth of materials, supplies and tools were
leaving the plant" and it proceeded to completely ignore the ample documentation of
these thefts and to do precisely nothing about them. In the face thereof, I am at a
loss to visualize how this was a matter of primary or even small concern to
management.
In view of the foregoing considerations, I am convinced beyond a doubt that the
testimony of Hahn and Davis is the more reliable and it has accordingly been
credited as to their reports to Ummel and thence to Cronkrite concerning the
identities and union sympathies of Harvey employees. I also find that Hahn turned
in typed reports on this subject matter to Ummel. I credit Hahn that Miller did
make out reports with respect to the identities of union sympathizers, precisely as
Hahn did, and that these were turned over to Davis for relay to Ummel and by
Ummel to General Manager Cronkrite of Harvey. I further find that Miller carried
on his espionage work during his entire tenure at The Dalles. The testimony of
McCarthy is also rejected where in conflict with that of Davis and Hahn for the
several reasons previously stated, revealing his absence of recollection and poor
memory concerning the handling of the investigation.23
D. Labor espionage extended from The Dalles to Torrance, California, plant
The parties are in agreement that Wallace conducted undercover investigations at
the Torrance, California, plant of Harvey during the period from approximately
July 26 through September 30, 1960, or several days thereafter. The original op-
eratives assigned to the Torrance operation were Calvin Davis, who was transferred
directly from The Dalles, and Richard Moore, followed by Roy Lucier, Rex Moles,
Madge Pesek, Tom Feazle, and Ray Ummel, the brother of Wallace Ummel. Moles
and Lucier did not testify herein. All were previously on the Wallace payroll ex-
cept Pesek who had been employed as a bartender for some time in Portland.
As at The Dalles, there are serious disagreements and extensive conflicts in the
testimony as to the purpose of the investigation and the nature of the reports made.
The General Counsel relies primarily upon the testimony of employees Moore and
Davis, with some reluctant corroboration from Ray Ummel and Pesek. Respond-
ents rely on the testimony of Feazle, Pesek, and Ray Ummel as well as that of
Wallace Ummel and Cronkrite.
It is clear and I find that the use of Wallace operatives at Torrance was a direct
continuation and extension of their work at The Dalles plant. Furthermore, when
the occasion demanded, Respondents did transfer an operative, Davis, back to The
Dalles, albeit briefly. This phase of the case is also marked by conflicts of testi-
mony as well as considerable evidence of an allegedly impeaching nature. As will
appear, Respondents' contentions here are as insubstantial as those raised with
respect to The Dalles operation.
As at The Dalles, one starts again with Calvin Davis. Cronkrite and Wallace
Ummel agree in their testimony that they decided he had done a good job at The
Dalles, and it was therefore logical to select him to start up the California portion
23 In their brief, Respondents make what the General Counsel with some justification
terms a "desperate" attack on the credibility of Hahn. It adduced evidence that an em-
ployee concluded by Harvey to be Hahn had placed a list of names on the bulletin board
together with a humorous personal comment concerning each man (totally unrelated to
union activities or pilferage). Respondent would have the inference drawn that this was
the same list which Hahn testified he had turned in to Ummel for transmittal to Cronkrite
when he left the employ of Wallace. While many of the names were the same, the simple
answer is that Ummel admitted that Hahn turned in a list of names to him, albeit a
smaller one.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this "investigation." Wallace and Harvey arranged for Davis to apply for a
transfer to the Torrance plant from The Dalles: It appears that this was a difficult
thing to accomplish administratively and Harvey did not normally do this for
employees.
According to Cronkrite, he discovered early in July, in a telephone conversation
with Albert Hinz, director of industrial relations at Torrance, that a problem similar
to that at The Dalles existed at Torrance and that it included not only thefts but
also encompassed bootlegging, prostitution, and narcotics. Hinz obtained permission
from his superiors, and specifically from Lawrence Harvey, to use the Wallace
agency at Torrance, employing the same technique as that utilized at The Dalles.
Hinz conferred with Cronkrite and the latter with Ummel. It was agreed that
two Wallace operatives would promptly proceed to California; that reports would be
made by mail, or in emergencies by telephone, to Ummel in Portland; and that
Ummel would then relay the information to Cronkrite at The Dalles. Then
Cronkrite would use a company tieline to report this information to Hinz in
Torrance, California. No explanation is presented why local agencies in the Los
Angeles area were not utilized, thus avoiding substantial travel expense from the
Portland area whence all the agents had come; apartment rental in Los Angeles;
and long-distance telephone charges. In fact, Hinz professed ignorance of all
these considerations. While this brings to mind, although perforce in an ignoble
context, the Tinker to Evers to Chance double-play combination, on the other
hand, no contention is made that it was cheaper or more efficient to utilize an out-
of-State agency as this which was obviously inexperienced in California. The only
explanation on the record, although not proffered as such by Respondents, is that
Davis had admittedly performed an exemplary job at The Dalles As noted, Davis
had turned in but one theft at that location and his other reports, as found, were
all reports predicated upon the union activities and sympathies of Harvey employees.
Returning to Davis, he was at work at The Dalles on or about Thursday, July 21,
and was telephoned by Wallace Ummel. He met Ummel at their customary meet-
ing place and Ummel instructed him to check out, get a leave of absence, and re-
port to the Harvey plant in Torrance, California, on the following Monday morning,
July 25. Ummel told him to apply for work in the same manner as at The Dalles
and to carry on.the same labor espionage assignment.
On July 21 or 22, his leave of absence having been obtained through Cronkrite's
intervention, Davis checked out and enjoyed a farewell conversation with Cronkrite
in the latter's office. I find he told Cronkrite that despite his previous report on
Foreman or Leadman Sluder for theft of an expensive tool, he, Davis, did not believe
that Sluder should be disciplined because he was antiunion and would vote against
the Union, and further, that while Sluder did steal this expensive tool, many em-
ployees probably did likewise. This of course was precisely the case.
Ummel told Davis to leave for California together with Richard Moore, then
working as a uniformed guard for Wallace in Portland. According to Ummel,
Davis recommended Moore for the assignment. Moore testified, and I find, that
Ummel told him in the presence of Davis before leaving Portland that "we had
been employed by Harvey on a union problem and we were to go to California and
report anybody that had pro-union leanings. If they said that they would vote
for the union, we were to put them on report." They left on Saturday, July 23,
and drove directly to Torrance, arriving on Sunday afternoon, July 24, with direc-
tions to meet Ummel at the Los Angeles airport upon his arrival by air from Port-
land later that day.
Davis and Moore picked up Ummel on schedule at the Los Angeles airport.
They checked in at a motel and Ummel reviewed their instructions with them. Ac-
cording to Davis, they were to do the same job as they had done at The Dalles, viz,
to determine how employees would vote in a representation election and their
identities Moore agreed, testifying that they were told by Ummel to apply for
work in the customary manner; that each man was to make his reports through
Davis; and that Ummel stated "we were to report any worker in the Harvey plant
that we came in contact with that said he was for the union, going to vote for the
union or had pro-union leanings . He also stated to us that perhaps it would be
good if we could find somebody who was stealing tools and could report this; .. .
the conversation turned to the point that it would help if we could find somebody
stealing and also put that on our report." 24
24 A wide and extensive attack is made upon the credibility of Moore, as was done to all
witnesses for the General Counsel. This evidence is considered further hereinafter Suf-
fice it to say at this point that Ummel presented testimony which is as illogical and un-
believable as that he presented concerning The Dalles aspect of the case He contended
HARVEY ALUMINUM (INCORPORATED), ETC. 185
On July 25, Davis and Moore applied for work and were hired on the following
day. Here again, Respondents make what is manifestly a trivial attack on Moore.
Much is made of the fact that on his application Moore stated that he had previously
worked for Harvey Aluminum. This hardly merits treatment in view of the nature
of his assignment . In addition, the record demonstrates that his superior officer,
Davis, had advised him to state this fact on his application. Much is also made of
the fact that he named "Swift" as a prior employer whereas he had worked for
another meatpacker, Armour. This error was explained by Moore as inadvertent.
The fact is stressed that he did not disclose his employment by Wallace on his ap-
plication. I find it difficult to believe that Respondents seriously press this in view
of the admitted undercover nature of the assignment, but, in any event, this was
done, and understandably so, on instructions from someone in Portland prior to
leaving for California. In fact, Davis testified and I find that Cronkrite had told
him not to disclose this fact at either plant. Moreover, the fact is, as the record
indicates, that Harvey representatives knew Davis and Moore were on their way
from Oregon and were to be put to work. Use of the application form was merely
a device to conceal the undercover nature of this assignment.
Respondents also attack Moore on the basis of a personal security questionnaire
executed by him on August 5, 1960, pursuant to Harvey Defense Department con-
tracts. Therein, he stated that he had been court-martialed by the Army in Janu-
ary 1957 for offenses under articles 85 and 134 (adultery and AWOL for 10 days).
This questionnaire also disclosed that Moore received an honorable discharge from
the Army in June 1958, a fact not challenged herein. In addition, Moore uncon-
trovertedly testified, and I find, that in the course of his discussion with Ummel at
Torrance on Sunday, July 24, he informed him of his court-martial. Ummel ob-
viously was not upset at this revelation because he proceeded with plans for Moore
to enter the employ of Harvey the next morning. Nor did this prevent Ummel
from continuing to employ Moore for many months thereafter, for this and other
,clients. On this posture, and in view of the character of Ummel's prior testimony
herein, Moore's testimony has been credited over that of Ummel, with particular
reference to the type of instructions given him to engage in labor espionage at the
Torrance plant.
It may be noted at the outset that no ostensible study had been made at Torrance
concerning the pilferage problem, as had allegedly been done in The Dalles in the
Blatt report. And, on the face of Respondents' case, Cronkrite recommended Wal-
lace to Hinz for use at Torrance no later than early July. This, as noted, was
early in the game and at a time when little or nothing had been produced by way
of pilferage reports at The Dalles. To the contrary, the credited evidence discloses
that as of that date the reports with one exception disclosed only the identities of
union sympathizers. This was the "good job" being done by Davis at The Dalles,
according to Cronkrite and Ummel. His reports on pilferage consisted only of
two reports of July 9 and 19, involving one antiunion leadman whom Cronkrite was
unwilling to discharge despite two subsequent offenses. And on the face of Re-
spondents' case, little or nothing was discovered at Torrance, despite the broader
basis of the investigation extending into gambling, prostitution, and narcotics.
Richard Moore testified, and I find, that he obtained two names on his second
night of work. He turned these into Davis, who also had "a couple," and Davis
mailed this information to Ummel in Portland. Further indication of Davis' leader-
that Moore was under the influence of liquor when the two operatives met Ummel at the
Los Angeles airport ; that Moore almost ran over the parking lot attendant ; that they
stopped at a bar and had two or three drinks; and that Moore was in no shape to appear
in public. They then ate dinner after which Ummel purchased a bottle of liquor from
which all three replenished themselves at their motel.
In view of this purported predicament, one is asked to conclude that Moore was in no
condition to recall events of the evening But Ummel had no hesitancy whatsoever to
forthwith hold a discussion with Davis and Moore about what they were to do in Torrance
pursuant to this highly confidential Investigation, allegedly explaining that they were to
check for theft, prostitution, and bootlegging. When asked why he felt warranted In
discussing these matters with Moore in his sorry condition, 'he backtracked and replied that
after dinner and after two cups of coffee, "Moore was in pretty good shape." Ummel
again tried to color his testimony by stating that he would not state whether Moore was
"able to understand or comprehend." When a specific question was put to him immedi-
ately thereafter, he conceded that Moore was able to appreciate what he, Ummel, was say-
ing and what was going on. I find that Ummel exaggerated in his testimony In this in-
stance as he did previously and I do not accept it. I credit the testimony of Davis and
Moore as to their initial instructions from Ummel concerning the Torrance assignment.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship in the venture is the fact that Moore's pay from Wallace was contained in a
single bank draft periodically made out and mailed to Davis from Portland. Upon
receipt, Davis would cash the draft and pay Moore his share.25
Moore regularly reported to Davis the names of persons who had "voiced an
opinion to me that was pro-union or that showed ... they would be glad to vote
for the union if the election was held." He did report one man for stealing after
this employee admitted to Moore that he had stolen a number of tools. Moore
personally turned in about 15 names of prounion sympathizers. Thereafter, as
will appear, Davis left and reports were funneled through Moore. These reports
included a total of 25 to 30 names. And, in his cross-examination, Moore was able
to recollect and did supply the name of one person whose name he had personally
turned in.
Davis tesified in substantial corroboration of Moore. His instructions from
Ummel were to report to Ummel by mail and to include in the reports the names
that Moore had reported to him. He reported to Ummel the same activity that
he had reported at The Dalles, viz, "the pro-union discussions and names and badge
numbers." He elsewhere testified that "we were to report anything that was said
in relation to how they were going to vote at the next union election." Davis made
no reports of any other nature from Torrance. According to Davis, be and Moore
reported 11 or 12 names between them during the first week in Torrance; there-
after, 3 to 5 names a week were reported.
On August 12, two additional operatives who had been sent from Portland to
Torrance, Lucier and Moles, reported at the plant. They were later sent back im-
mediately after the Labor Day weekend because they were nonproductive and neither
was called as a witness herein. According to Davis, they came to his apartment
upon arrival, as did operative Madge Pesek who arrived late in August. Davis
instructed these operatives to mingle with employees, to listen for the desired in-
formation, and to try to get names or clock numbers.
After approximately 3 weeks on the job in Torrance, Davis decided for personal
reasons to go to Portland for a weekend. After this weekend, he returned to Los
Angeles early on a Tuesday morning, apparently August 16. Upon his return, as
both he and Moore testified and I so find, a wire from Wallace Ummel was awaiting
him. This wire, which was also read by Moore, directed Davis to telephone
Cronkrite at The Dalles. Unable to get through to Cronkrite, he telephoned Wallace
Ummel who told him that "the jig was up" and to contact Cronkrite. He finally
reached Cronkrite who stated that Hinz had telephoned and stated that "they were
on to what I was doing at the plant ... I was to call Al Hinz and then check out
of the plant and come back to The Dalles." He telephoned Hinz who substantiated
Cronkrite's remarks, stating that "they" were on to him and that Cronkrite wanted
him back at The Dalles.
Davis questioned Hinz as to the basis for this belief that he had been discovered
and Hinz replied that he had learned that Davis did not fit in with the men he was
working with, presumably meaning that his appearance was not that of a laboring
man. On or about August 19, or shortly thereafter, Davis left Torrance and pro-
ceeded to Portland to see Wallace Ummel 26 The record does not supply the precise
date of his arrival there. Ummel told him that he was to return to The Dalles.
Davis registered for work and telephoned Cronkrite who invited him to his home
that evening. Davis appeared and was told, as he testified, "to just report back
in tomorrow and do the same job and try to get more reports and more names."
Davis was assigned to his former job of assembling parts. This date cannot be
precisely placed, but I find that it was sometime later than August 20 but prior
to September 5. He worked I complete day during which he heard his coworkers
comment that it was unheard of for one to obtain a leave of absence from this
plant; that it was rare for a man to be promptly returned to work upon request;
and that Davis was probably a company man. That night he telephoned Cronkrite
and stated that the "fat was in the fire" and that he was leaving town The follow-
ing morning, he went to Portland and informed Ummel that he could no longer be
15 As noted, Davis headed The Dalles project, was sent to Torrance because of his good
work there, and was consulted in the choice of Moore for this post
26 These findings, as noted, are based upon the credited testimony of Davis and Moore.
Respondents during the cross-examination of Davis raised the issue that this was a highly
round-about and presumably unlikely telephone procedure with contact from Davis to
Ummel to Cronkrlte to Hinz. On the other hand, it is undisputed that Respondent Harvey
arranged precisely this round -about communication system at the start of this under-
taking. Moreover, Davis testified that he telephoned Wallace Ummel and Cronkrite col-
lect ; presumably those records were available to contradict him were the facts otherwise.
HARVEY ALUMINUM (INCORPORATED) , ETC. 187
effective at The Dalles because the men sensed that "I was other than what I ap-
peared to be."
Ummel suggested that he remain in Portland while he, Ummel, checked with
Cronkrite, commenting that reports were not coming in from Moles, Lucier, and
Pesek in Torrance. Shortly thereafter, Davis was instructed by Ummel to return
to Torrance but not to report for work at the Torrance plant. He was told to see
to it that reports came in from their operatives and, if not, to send Lucier and Moles
home and to ask for replacements. Davis returned to Torrance, arriving over the
Labor Day weekend ending on Monday, September 5. He sent Lucier and Moles
home for nonproduction of reports and also told Pesek to turn in reports or suffer
a similar fate. He telephoned Ray Ummel in Portland and stated that Ummel and
another operative should come down to replace Lucier and Moles; Ummel and Tom
Feazle promply came to Torrance. Davis is corroborated here by the testimony of
Moore.
Davis remained for 1 week until approximately September 12. During this week
he sent in reports from Pesek, Feazle, and Ray Ummel which listed the names of
prounion sympathizers. After about 1 week, he decided that he wanted to return
to Portland and did so. He then reported to Wallace Ummel that Pesek was turn-
ing in names and that Moore, Feazle, and Ray Ummel were on the job. Ummel,
it is undisputed, returned him to work as a guard and Davis voluntarily left the
employ of Wallace in November.
Cronkrite conceded that Davis had telephoned him upon his return from Cali-
fornia and might have disclosed the fact that he had been discovered as an under-
cover agent. Indeed, Cronkrite admitted that as of that time he had previously heard
the report that the identity of Wallace operatives in Torrance had been discovered
and that this was "a week or ten days" before the other operatives were recalled.
He did not dispute the allegation that Davis had been recalled to The Dalles. He
also supported Davis as to the reason for his quitting at The Dalles after 1 day for
fear of personal injury, although he found it unnecessary to ascertain the precise
reason for his fear. It may be noted that he contradicted the testimony of Ummel
as to the reason for Davis' return to The Dalles. Cronkrite was also in error that
it had been decided to discontinue the service at that time; the record discloses that
it was not discontinued for at least another month.
Ummel's testimony, as elsewhere, was diametrically opposed to that of Davis.
He claimed that he directed Davis to return to The Dalles after his first stay in
Torrance, based upon Cronkrite' s suggestion that Davis "wasn't doing much of a
job down there." Accordingly, Ummel returned Davis to The Dalles for 1 day as
described above. Davis then suggested that he be removed from The Dalles because
a foreman had commented with suspicion that no one else had transferred to Cali-
fornia and had then returned. According to Ummel, Davis said he had gotten into
a fight with someone who accused him of being an informer. Ummel did not be-
lieve the last assertion by Davis because his face was not "marked"; apparently
Ummel, on this version, had a low opinion of Davis' pugilistic ability.
Despite all this, Ummel offered Davis a job as a guard, but Davis was reluctant
to resume employment in this post. Ummel then proposed that Davis return to
California as a salesman and try to sell the uniformed guard service to other
accounts, with all expenses paid and -a commission if he sold any accounts. This, of
course, is the time when Davis, as he testified, returned over the Labor Day weekend
to oversee the espionage operation. Ummel conceded that Davis was gone less than
a week and returned with no success ; nevertheless, Ummel thereafter returned him
to work as a lieutenant in the guards. He missed work on several occasions and was
ultimately discharged, according to Ummel, for neglect of work and for passing
bad checks.
This testimony by Ummel may best be termed as ludicrous. Initially, this is the
same man to whom he made "loans" some months later, despite the fact that he had
allegedly discharged him previously for passing bad checks. Secondly, Ummel would
have one believe that Davis did a poor job in California on his first trip and was
accordingly summoned back to Oregon. Then, despite not believing Davis' story
as to the circumstances of his leaving The Dalles after 1 day, Ummel chose him
to call upon potential customers located over 1000 miles distant in California as
his personal representative to sell them the uniformed guard service. Stated other-
wise, he allegedly chose one who had no sales experience in this line, whose work
record had been bad, whom he suspected of being a liar, and sent him a great distance
to another State to drum up business. d have previously, as well as hereinafter, set
forth my conclusions and reasons why Ummel's testimony is unreliable . I find it
no more reliable in this instance and I do not credit it.
During Davis' absence from late August on and prior to his return in September,
according to Moore, I find that reports were made to Moore of the names and pro-
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union sympathies of employees by operatives Pesek, Feazle, and Ray Ummel; here,
as well, there is a conflict and this is treated hereinafter. Moore testified that no
reports were received from Lucier and Moles because Lucier was just not interested
and Moles pleaded inability to obtain the desired information.
Operative Madge Pesek made application for work at the plant on August 22.
Her termination interview is dated September 30, although she, apparently in error,
insisted that she left the area on or about September 10. Davis testified that he was
in Torrance on the day of her arrival, probably several days before August 22, and
that she reported to his apartment. She received the same instructions from him as
the others and "she was to make her reports to Dick Moore." This was the day that
Davis was leaving for Portland. Moore testified in substantial agreement with Davis
that Pesek did report to him She reported five or six names of people who had
spoken to her "In regards to the union. . . . If they voiced the opinion that they
would vote for the union, that they were pro-Union." He further testified that he
summarized these reports from Pesek and mailed them to Wallace Ummel in
Portland.
Davis and Moore are in substantial agreement concerning the departure of Lucier
and Moles. As described, Davis was authorized by Ummel to bring about this
step and did so over the Labor Day weekend. He is supported in this by Lucier's
termination notice which is dated September 6 and reflects a voluntary departure.
It was at this time, and I so find, that Davis spoke with Pesek pursuant to instructions
from Ummel and told her that if she did not start sending reports in, she, as well,
would be sent home. I find that Pesek subsequently made reports to Davis and
Moore as to the identities of prounion sympathizers. Although Lucier was in the
employ of Wallace, he was not called as a witness.
Davis took other steps that Labor Day weekend. In addition to terminating Moles
and Lucier, he telephoned the Wallace office in Portland, as instructed, and arranged
for two replacements. These were Ray Ummel, who was temporarily working for
his brother, and Tom Feazle, another Wallace operative. They promptly proceeded
to Torrance and applied for work on Wednesday, September 7. This last time,
Davis was on the scene for approximately 1 week pursuant to Ummel's instructions
to jack up the operation Following Ummel's instructions, he did not attempt to
work at the plant. As indicated, he left of his own volition, reported to Wallace
Ummel in Portland, and was returned to guard duty. He resigned from Wallace's
employ in November 1960. The reports were handled through Moore subsequent
to Davis' final departure from Torrance about 1 week after Labor Day 1960 These
reports by Moore included reports from Pesek, Feazle, and Ray Ummel; their
versions are considered hereinafter. I find that Moore relayed all of these to Wallace
and that Wallace sent them on to Cronkrite.
Feazle received a termination interview on September 29 and Pesek and Ray
Ummel were given such interviews on September 30. Moore left in the first week of
October and returned to Portland where he resumed his duties as a uniformed guard
for Wallace. It is to be noted that Moore was still in the employ of Wallace when
he testified herein on June 15, 1961. He was promptly suspended within 2 or 3
days after he testified and was thereafter discharged by Ummel during July 1961,
as the latter disclosed in his testimony on August 7. The purported circumstances
of his termination are set forth hereinafter.27
The testimony of Davis directly implicates Director of Industrial Relations Hinz
in this espionage scheme. He testified that during his stay at Torrance he telephoned
Hinz on two or three occasions with respect to "how the job was going." This was
consistent with his claim that both Cronkrite and Wallace Ummel told him to contact
Hinz in Torrance. It is not disputed that Cronkrite kept Hinz informed of the names
of Wallace operatives who were coming down from Portland. On one of these
occasions, Hinz asked how the men in the plant felt about "The union or the com-
pany, either way." The two men discussed the best locations and times to obtain
information in the plant or outside the plant in bars.
In other telephone conversations, Davis told Hinz that the men were not so much
concerned with unionization or their wages as in a security program and retirement
plan. Davis recommended that if Harvey set up -a retirement plan of some kind,
"they wouldn't have all this trouble with the union . . . ...
Hinz asked Davis how he felt the vote might go in an election . Davis replied that
the men would vote for a union because of dissatisfaction with the lack of security
As will appear, the contentions of Wallace with respect to the discharge of Moore
shed light on its true position and motivation in this case. The circumstances of the
discharge were developed on the record and while it would seem that the elements of a
Section 8(a) (4) violation are present, none has been alleged by the General Counsel. See
N.L R.B v. H. E. Fletcher Co., 289 F 2d 594 (C.A. 1).
HARVEY ALUMINUM (INCORPORATED), ETC. 189
on the job. During this or another talk, Davis told Hinz that a named employee
who operated a hyster "definitely was going to vote for the union." Hinz replied,
"Maybe we ought to get rid of him right now." Hinz asked if Davis could run a
hyster and Davis replied that it would look suspicious to discharge this employee
who had 5 years' tenure and replace him with Davis who had been there but 2 or
3 weeks. Hinz agreed and stated, "Maybe that would be better-just keep an eye
on him."
Hinz claimed herein that operatives under no circumstances were to report to him;
that Davis had only spoken with him once; that this was on his arrival when he
telephoned to ask route instructions to get to the plant; and that Moore had never
spoken with him while at Harvey. I do not credit the testimony of Hinz. For one
thing, his testimony was glib and sententious. As indicated, he testified as follows:
Q. Did you at any time discuss, either with Mr. Ummel or with Mr.
Cronkite [sic] for Mr. Ummel, the question of getting names of people who
committed illegal acts?
A. No, sir.
TRIAL EXAMINER: You mean you weren't interested in the names, or what?
The WITNESS: No, sir. Harvey Aluminum Company's philosophy has never
been to punish any individual unless it was of a major nature. If something,
of course, had been on a major nature we would have pursued it, but under the
normal petty thefts it's always been our policy to correct the situation more so
than to try to punish any individual. So we were not actually interested in the
names. [Emphasis supplied.]
TRIAL EXAMINER: And you did not get names, is that correiCt?
The WITNESS: I did not. I never received any names from Mr. Cronk-
ite [sic].
Q. (By Mr. LUBERSKY.) Well now, I understand from what you said that
Mr. Ummel through Mr. Cronkite [sic] gave you leads on the alcohol thing
and leads on how to improve your fence security, and do I understand you to
say now that you never did get from him any specific person who was guilty of
any theft?
A. No, sir.
This testimony is utterly irreconcilable with Respondents' basic position herein.
Much evidence was adduced in this lengthy record that the names of those engaging
in pilferage and other offenses were submitted regularly and methodically to Wal-
lace Ummel and thence to Cronkrite. When this involved the Torrance operation,
Cronkrite allegedly relayed the information by means of the company tieline to
Hinz. Cronkrite in fact admitted that he suggested to Ummel that operatives get
in touch with Hinz. It seems logical to assume, contrary to Hinz and consistent
with the testimony of Davis and Moore, that the operatives did precisely that when
the occasion so warranted. In fact, they were given a card of introduction to Hinz
by Cronkrite when they left Portland. Stated bluntly, the entire thrust of Respond-
ents' case is that it sought to eliminate pilferage, narcotics, bootlegging, and prostitu-
tion at Torrance and Hinz would have one believe that Harvey was not interested
in the names of the offenders despite the fact that Cronkrite was admittedly relay-
ing Ummel's reports to Hinz.
Indeed, the nub of Hinz' testimony was that in view of local growth, the local
law and enforcement agencies could not handle these problems and it accordingly
became necessary to employ Wallace. This hardly sounds like "normal petty
thefts" where Harvey was not interested in names. Actually, indirect corrobora-
tion of Davis is found in the testimony of Wallace Ummel. He testified that he
made one report to Cronkrite concerning the Torrance investigation where, as noted,
his operative reported "some of the employees would be happier if they had .. .
retirement or seniority rights." This is clearly pinpointed to employees engaging
in concerted and union activities to better their working conditions. It also is
,almost word for word what Davis testified he had reported to Hinz above. And, it
may be noted, that Wallace Ummel, as a party, had the benefit of hearing Davis
testify herein for the General Counsel, whereas the converse was not true.
Finally, this glowing -appraisal by Hinz of his and his employer's "philosophy" is
,hardly reconcilable with his personal involvement in the discharge of Dillon de-
scribed below. Hinz' participation therein, it may be noted, is uncontroverted. In
view of these considerations, the testimony of Davis is credited as to his conversa-
tions with Hinz and the testimony of the latter is not accepted.
I further find, as Moore testified, that he received messages from his wife and
Ray Ummel that "we had been discovered . . . by the union" and it was thought
best "to get me out of the plant." He telephoned Hinz and expressed the view that
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had not been detected. Hinz replied that he would check with Cronkrite at The
Danes and that Moore should call back. He did so and Hinz merely replied, "Boa
voyage, and have a nice trip." Moore returned to Portland the next day and
resumed work as a sergeant in the guards.
OTHER CREDIBILITY RESOLUTIONS
As in The Dalles aspect of the case, just about every affirmative assertion of the
witnesses for the General Counsel is controverted by witnesses for Respondents.
Some of these conflicts have already been resolved. A number of others are pre-
sented and these, in the interest of cohesiveness of the narrative, have been reserved
and are set forth collectively at this time.
(1) Respondents attack the credibility of Moore because of his execution of the
form affidavit prepared by Wallace Ummel for his employees. This was executed
by Moore on February 25, 1961. As set forth, the deponent states that he has
read Ummel's previously prepared affidavit; that it accurately reflects the instruc-
tions given by Ummel to Moore; that Moore complied with such instructions; that
his reports were confined to investigation to learn "the identification of the perpetra-
tors and the recovery of any stolen goods"; and that the investigation was of dope
peddling, prostitution, bootlegging, bookmaking, pilfering, and thievery. He fur-
ther stated, "At no time did I investigate or report on any union or other labor
activity." This, it may be noted, sheds additional light on the testimony of Hinz
that Respondent Harvey was not interested in the names of those involved in these
activities and supports the conclusions heretofore stated about his testimony.
This document, as is apparent, was executed by Moore while still in the employ
of Wallace. And as is the case with the other affidavits executed by Wallace
employees, the circumstances of its execution are of great interest. Moore was
on duty in Portland as a uniformed guard subsequent to his return from California.
Ummel asked Moore to meet with him and when Moore appeared on the scene
Cronkrite and General Counsel Elliott of Harvey were present. Ummel asked
Moore to read his, Ummel's, affidavit of February 25, which has been previously
described. Suffice it to say at this point that this affidavit describes the purpose of
the investigation at both plants, states that spying on labor activity was not among
the purposes, and states that Ummel allegedly adhered to these instructions from
Harvey. Ummel then said to Moore, in the presence of the two Harvey officials,
"I want you to sign this statement." Moore did so. Ummel then instructed Moore,
his employee, to have a copy which he provided notarized. Moore promptly did so.
Moore testified herein that his affidavit "wasn't the truth .... Because this doesn't
state the full reasons that we went to California . . . or I went to California." If
additional evidence is needed as to why Moore signed the affidavit, it is supplied
by his further testimony when asked why he signed the form unilaterally prepared
by his employer. Moore replied, "Well, I felt in my own mind, and I made this
very clear, in my own mind, that it would be better if I did sign this statement, be-
cause I am still employed by Mr. Ummel. I was then; I am now." As noted,
Ummel remedied this situation 2 days later. Moore further stated that at the time
of the signing there was no discussion of the truth of the affidavit. He was cross-
examined by counsel for Harvey and any lingering doubt is dispelled by his answer
in response to a question that "This [the affidavit] is a lie." 28
I believe and find that Moore's testimony in this area is impressive. When an
employee is told by his employer to sign a statement, in the presence of two key
officials of a prominent customer of this employer, and that affidavit bears upon his
services for that customer, the inference is well warranted that the employer was
coerced into signing the statement. Indeed, Respondents, in an attack upon Staff
Representative Caldwell of the Union, have adverted to and introduced in evidence a
copy of a letter dated April 17, 1961, from Caldwell to one Ralph Dungan attached
to the Office of the President of the United States. Attention is directed therein to a
m Respondents make an issue of the fact that Moore, as he testified, told the notary,
one Moon, that this was not the truth, that they then joked about It, and that Moon,
apparently in further jest, asked if It was something that would put them both In jail.
Moon, as is readily understandable, did not remember the incident although he testified
that he never to his knowledge notarized a document after being told that it was not the
truth. I find that the incident has been unduly inflated by Respondents, that Moon was
addressed by Moore in a joking manner, that Moon so regarded the incident, and that
Moore, pursuant to his instructions from his then employer, signed and swore to the
statement.
HARVEY ALUMINUM (INCORPORATED), ETC. 191
rumor that General Counsel Elliott of Harvey was under consideration for appoint-
ment to "the top post" in the General Services Administration. It further states:
I believe that you should know that during the time the N.L.R.B. and the
Department of Labor investigators were taking sworn statements from the Wal-
lace Detective Agency operators concerning the "labor spy" charges several
Harvey officials including Mr. Elliott were pressuring these same operators to
sign affidavits to the contrary.
I believe that this quoted statement is not an inaccurate appraisal of what had
actually taken place. I further credit Moore that his signature was coerced in
this instance for the reason that "it would be best if I did sign this statement be-
cause I am still employed" by Wallace.
(2) Any remaining doubt about Wallace's bona fides in the Moore case is dis-
pelled when consideration is given to the treatment of Moore thereafter and the
again exaggerated testimony of Ummel with respect to the case.
Moore was suspended from his duties with Respondent Wallace within 2 or 3 days
after he testified on June 15, 1961. He was thereafter discharged in July while
assigned to guard duty at the premises of a Portland newspaper, The Oregon Daily
Journal. Ummel testified that there were several reasons for the discharge, viz,
(a) Ummel learned that Moore had falsified his employment application to Wal-
lace; (b) Moore had signed "a false affidavit" to the United States Department of
Labor and also to the Board; and (c) "it was brought up to me by different clients
that they did not want a man working for them that would get up and lie. .
By stating that he had been spying on labor ... at my direction, which is definitely
a lie." This was allegedly raised by clients subsequent to Moore's testimony herein.
Later in his testimony, Ummel added a fourth reason, namely, that Moore claimed
he had been offered a bribe. As will appear hereinafter, this was an accurate claim
by Moore.
As to (a) this has reference to Moore allegedly serving time in an Army prison
without disclosing this on his employment application to Wallace. However, as
indicated, Moore uncontrovertedly testified that he told Urnmel about his court-
martial immediately before he started work in Torrance and Ummel had no com-
punctions about using him in Torrance for over 2 months and thereafter in his own
employ for over one-half a year prior to his testimony herein. Indeed, Moore dis-
closed on a Department of Defense personnel security questionnaire given to
Harvey on August 6, 1960, that he had been court-martialed for violation of articles
85 and 134. While Ummel contended that he suspended Moore in order to in-
vestigate whether he had done time, he never did so. Significantly, Ummel knew
that Moore had an honorable discharge from the Army.
As to (b) this relates to Moore's signing affidavits for Government agencies where-
in he deposed, consistent with his testimony herein, that he had spied on union or-
ganizational activities. Ummel conceded, however, that he had been informed by
Moore of the signing of these affidavits and that he had received this information
from Moore several months before he testified in thishearing.
As to (c) Ummel testified, "I was questioned about it [Moore's testimony herein]
by the clients . they did not want that type of person." When asked which
clients these were, he replied, "I discussed it with several"; he demurred at disclosing
their names because the Portland press "seem to make a big thing" out of this case.
Ummel was then asked on redirect examination if "one of the clients who spoke
to you about the fact that he did not desire to have Moore around after the nature
of his testimony was discussed with you [was] a client where Moore was then em-
ployed?" Ummel admitted that such was the case; this manifestly must have been
the newspaper to which Moore was then detailed as a guard. Ummel then on cross-
examination named the speaker in this conversation as a Mr. Haines.29
At this point, as he did in numerous other instances in this case, some of which
are set forth, Ummel began to hedge in his testimony after having previously taken
a strong position. He made oblique references, in response to questions, such as,
"I don't recall the exact words; it would be to the extent of-I was-questioned as
to what the situation was. . He then testified that "it had already been brought
up that Mr. . Moore had lied.. " He then stated that "The question was
asked of me . . I believe it was by Mr. Haines, that if Moore was a liar by nature,
' At the time a ,management representative with The Oregon Daily Journal. The name
of this newspaper and that of Haines, a witness therein, are found in Portland Stero-
typers' and Eleetrotypers' Union No. 48 , et al . ( Journal Publishing Co and Oregonian
Publishing Co ), Case No 36-CB-244 [137 NLRB 7821. That Intermediate Report and
Recommended Order issued on October 18, 1960, and is currently pending before the Board
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
how could a person of this particular caliber be trusted with the guarding of valu-
able property."
After some colloquy, I then asked Ummel, "Is it a fair statement that Mr Haines
brought up Mr. Moore's name?" Ummel replied, "I don't-I can't actually say
whether Mr. Haines brought it up first or I brought it up. The conversation started
out he was inquiring to me about this particular thing that I had been charged with."
He again stated that Haines had asked him about the instant charges against him,
Ummel, and he stated, "That it was definitely a lie." Ummel further vaguely said
to Haines, "I explained that it looked to me like the-at that particular time that the
unions were using me as a tool to pry against somebody that they had had diffi-
culties with, mainly the Harvey Aluminum Company; and that something might be
said in a slanderous nature just because I happened to be an account of a paper that
was on strike, which actually had nothing to do with it."
After all this, Ummel again testified:
Q. Well, Mr. Ummel, you say it was brought up. Now, who said it?
A. I don't recall.
Q. Did you say it or did Haines say it?
A. I don't remember. I don't recall whether I brought it up in apology to
the type of person that Moore turned into or whether it was asked of me by
Mr. Haines. But it was discussed. I know.
Q. Well, did Haines ask you to fire Moore?
A. Definitely not.
Q. He did not?
A. He did not.
Q. Did he ask you to suspend him?
A. No, sir.
Q. Then it was your own idea, wasn't it?
A. Yes, sir.
On redirect examination, Ummel was asked if Haines expressed "displeasure" with
having Moore on the premises and replied, "I don't recall that he actually mentioned
Moore, but he put in the terms that it would be the displeasure of anyone that
couldn't be considered as a truthful, trustworthy person; but Moore was in the con-
versation . He did not directly come out and say `Mr. Moore,' in other words "
I find that the client did not express displeasure over Moore's presence and that
at best the client commented to Ummel concerning the testimony in the case This
Ummel attempted to stretch into a customer's protest and request for discharge I
find no substance to the reasons advanced and I am convinced that Moore was laid
off and discharged because he testified for the General Counsel adversely to Ummel
in this proceeding.
(3) I believe that certain evidence of an attempted bribe of Moore is relevant
to an evaluation of his credibility and also the credibility of his employer The
record discloses that Moore testified herein on June 15. On June 13, the following
incident took place. Guard Captain McCarthy, his brother William McCarthy,
their two wives, and Stanley Hahn had dinner at the home of Captain McCarthy.
According to Captain McCarthy and his brother, the former decided to telephone
Moore and cheer him up because Moore had been depressed since his wife had under-
gone a major operation.
Moore testified that he received a telephone call at approximately 9:40 p in and
that Captain McCarthy asked to meet with him. Moore agreed to do so and they
met at 10:15 p.m. at a mutually agreeable diner. Both McCarthys agree that William
McCarthy and Hahn accompanied Captain McCarthy on this trip. There were two
reasons: the first was that they were at loose ends and, the second, that they wanted
to work on Hahn's disabled automobile. When the trio arrived at the diner, William
McCarthy and Hahn went to another table and Captain McCarthy came over and
sat down with Moore. It appears that Moore was not initially aware of the presence
of the other two.
Moore testified and I find that McCarthy stated "he had been talking to a friend
and he wanted me to understand that this was his job and that the friend had said
that there was five hundred dollars in it for me, immediate promotion to lieutenant
and a raise in pay to two dollars and ten cents an hour."
Moore was asked herein if any conditions were attached to this offer and replied,
"If I would cooperate." In response to the proposition, Moore stated, "No . .
He didn't have enough money ... No, thank you." McCarthy told Moore that "he
wanted me to realize that this was his job; and that-he told me that Mr. Ummel
had made it plain to him that this didn't come from him because he didn't have this
type of money. And I said, `No, thank you, I want no part of it."' Moore later
testified, "I just made it quite plain to him that I didn't want no part of this."
HARVEY ALUMINUM (INCORPORATED), ETC. 193
The two were then joined by Stanley Hahn and William McCarthy, and Moore
again stated that "they didn't have enough money." He later stated that "I wasn't
going to get on the witness stand and falsify." This testimony by Moore was pre-
sented after Hahn had finished his testimony in this case and Hahn was not recalled
as a witness.
Captain McCarthy claimed that it was normal for Moore to get emotionally in-
volved once a month and for the two of them to get together so that Moore could
cry on his shoulder. He agreed that he initiated the telephone call to Moore on
this occasion and suggested that they have a cup of coffee together. Upon enter-
ing the cafe, Moore allegedly asked to speak privately with him and William Mc-
Carthy and Hahn went to another booth.
Moore thanked McCarthy for donating blood to his ailing wife and expressed
concern that benefits under the company hospitalization plan would run somewhat
less than the bills McCarthy claimed that Moore looked glassy-eyed and he feared
that Moore would cry on his shoulder. He advised Moore to check his benefits
with the office manager and motioned the other two men back to the table. It is
clear that the other two had been several tables away and out of earshot. The
conversation turned to light talk and unrelated matters.
McCarthy contended that he received a definite impression that Moore had been
drinking beer; he claimed that he could smell .it and that his eyes were glassy. He
conceded that Moore drank only one cup of coffee in the restaurant; that he was
not slurring his words; and that Moore drove his own car away from the meeting.
William McCarthy recalled that his brother had arranged the meeting. After
the telephone call, his brother announced that Moore sounded upset during the
talk and he, Captain McCarthy, suggested that he visit him and cheer him up. This
overlooks the fact that this was the admitted purpose of the call prior to making it,
viz, that McCarthy wanted to meet with Moore. William McCarthy corroborated
his brother as to the presence of the other two at the meeting and that Moore asked
to talk privately with his brother. The two held a private discussion after which
the four joined up and chatted briefly on generalities. He disagreed with his brother
in that he could not detect any signs that Moore had been drinking.
I have credited Moore's version of the attempted bribe, which I find it was, for
the following reasons.
(a) Initially, this was a meeting sought and arranged by McCarthy who wished
to speak with Moore and McCarthy admitted that he knew that Moore was under
subpena to testify at the time. If, on McCarthy's version, all Moore did was
thank him for a blood donation and express concern over his wife's illness and
hospital bills, there appears to be no basis for Moore seeking a private talk on
this topic, particularly inasmuch as all present knew each other and were working
together. Moore's testimony that McCarthy, after seeking .the talk, raised the topic
of a money payment for cooperating is more consistent with events as they took
place.
(b) I have previously indicated how McCarthy displayed great confusion on
dates and events and was a vague witness with a poor recollection, 'actual or con-
trived. In consistent manner, he was off considerably as to when Moore returned
to Portland from Torrance. Moreover, McCarthy was obviously a highly interested
witness and was directly implicated in -the initial arrangements for Wallace to engage
in labor espionage at The Dalles. By contrast, there is absolutely no basis in this
record for inferring that Moore was favorably disposed to the General Counsel or to
the Charging Party. He had no union connections or interests, so far as this record
discloses, and he was a sergeant in the employ of Wallace at the time he testified.30
(c) In fact, the record warrants the conclusion that Moore was not favorably
disposed to the General Counsel's side of the case. He was on friendly social terms
with Captain McCarthy, as set forth. McCarthy knew his wife and had helped
her. By contrast, the record discloses that during the period shortly prior to his
appearance on the witness stand he had refused to discuss his knowledge of these
events with a representative of the General Counsel; on a second occasion, he
so Respondents adduced testimony by Wallace Ummel where, in a long rambling answer,
be attributed a telephone call to him from Moore on or about March 1, 1961, during the
course of which Moore stated that Government agents knew "the whole bit" about the
labor espionage ; that he would not be "the goat" for Ummel ; and expressed resentment
at not having been promoted to lieutenant in the guards upon his return from California.
From this , presumably , one is asked to conclude that Moore was biased against Ummel.
The other factors set forth herein demonstrate , I believe , the lack of substance to the
claim.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed only to talk about the matter and he, thereafter, agreed reluctantly to sign
a statement only on the day before he testified.
In view of these considerations, I have credited the testimony of Moore herein
as to the attempted bribe in return for cooperating by testifying 2 days later in a
manner favorable to Respondent Wallace. As the General Counsel states in his
brief, "It is inconceivable that McCarthy would have taken so drastic a step without
at least the consent of Ummel." Moreover, this serves only to remind one of the
similarly disguised "loans" by Ummel to Calvin Davis described previously.
(4) Madge Pesek testified herein for Respondents that she had been employed
as a bartender in the Portland area when Wallace Ummel, an old acquaintance, invited
her to work for him at Torrance on an undercover assignment. She accepted and
was told that she was to apply for work at Harvey and delve into "pilfering, prostitu-
tion, gambling, dope peddling." As indicated, Pesek went ,to California and filled
out her application on August 22. She was promptly hired and worked for approxi-
mately 6 weeks. Her travel expenses and one-half of her apartment rent were paid.
While she allegedly saw some evidence of pilfering, she testified that she made only
one report to Ummel during her entire stay, this report being made about 3 weeks
after she started. She allegedly received no other instructions from Ummel and
around the end of September was instructed by operatives Ray Ummel and Tom
Feazle to quit and check out because the operatives had been detected and the claim
made that they were spying on union activities. She flatly denied engaging in any
labor espionage.
In a number of respects, the testimony of Pesek is unimpressive and unworthy of
credence.
(a) She was off considerably on her dates, claiming that she joined the payroll
of Wallace in mid-July when it was actually after the middle of August. Pesek also
claimed that Ray Ummel left Torrance on September 8 or 9 and that she left on
September 10. The record shows that she did not receive a termination interview
until September 30. It may also be noted that Ray Ummel did not start work at
Torrance until September 7 and that he had his termination interview on Septem-
ber 30, the same day that Pesek did.
(b) Pesek was a vague and unimpressive witness who attempted to portray her
experiences in Torrance as a great lark, which apparently was the case to some
extent. The record discloses that she signed one of the form affidavits prepared
by Wallace Ummel for his operatives with the assistance of General Counsel Elliott
of Respondent Harvey?' This affidavit was signed by Pesek on March 24, 1961,
while she was visiting in California. She had been interrogated by various Govern-
ment representatives in an effort to procure an affidavit and while she had given one
to the United States Department of Labor, she refused to talk to a representative of
the Board. She telephoned Ummel shortly before this date in Portland, asked
what this case was all about, and was told, "It's a messy thing, I can't go into detail."
Ummel promptly came to California from Portland.
Pesek claimed that they went to a notary public "and he just typed it out as I
talked to him." According to Pesek, Ummel previously told her, "All you have to
do is just make a statement on ... your duties." She was asked if she suggested
any of the language in the affidavit; Pesek replied that it was "not my word for word
language" but that it was "more or less what I said." She also claimed that the
notary public wrote down her statement first in longhand and then typed it. She
also stated, "I openly just commented what I wanted and so he wrote it up "
Pesek insisted that this statement had not been copied from another piece of
paper. I find that Pesek who manifestly treated this entire trip on a casual basis
and as an opportunity for social or recreational activity obviously had no recollection
of signing the stock form affidavit prepared by Ummel with the collaboration of
counsel for Harvey. She attempted to improvise testimony to fit the document
rather than admit the truth that it was not in her own language.
(c) Pesek and Ummel contradicted each other concerning instructions about the
Union in the Torrance plant. Ummel, as noted, tailored his testimony to minimize
any references to union activities in Harvey plants. But even he testified that he
instructed Pesek "that there was some type of difficulties between the company and
union, which she was not .to engage in or become involved in." By contrast, Pesek
31 As indicated , these affidavits were identical with one exception , being respectively
tailored to service at The Dalles or at Torrance Those bearing on the former referred
to investigation of "pilfering, thievery , inventory losses and disposal of tools and
supplies stolen ." Those at the latter referred to investigation of "dope peddling , prostitu-
tion , bootlegging , bookmaking , pilfering and thievery."
HARVEY ALUMINUM (INCORPORATED), ETC. 195
insisted that "I had never heard anything mentioned about the Union from my
employer . . . I never heard him [Ummel] mention it."
(d) Pesek testified that she made written reports to Ummel although there were
"None of any significance " Upon further questioning, she testified that she made
only one written report to Ummel and that this was 21/2 or 3 weeks after she arrived.
This, of course, supports the testimony of Davis that Pesek had not turned in any
reports at the outset and that he was instructed several weeks later to get after
her in this respect. It also supports the testimony of Moore and Davis that she
started turning in reports to them after Davis threatened her with replacement. Even
Ummel testified that he never received a written report from Pesek.
(e) Pesek corroborated Moore in another respect, for both testified that they
received word from Ray Ummel that they had been discovered at the plant. This,
too, refutes Wallace Ummel who claimed that the operatives were removed because
there had been no results. In fact, Ummel admitted that he knew of the exposure
before Pesek was pulled out of Torrance. Even Cronkrite, who testified in accord
with Ummel, also stated that he had heard from Hinz on the very same day the
decision was made that the operatives had been discovered.
(f) Pesek testified that she never attended any meetings with Davis or Moore.
She admitted she knew them and the purpose of their presence in Torrance and that
Davis introduced her to Moore as working for Ummel when she arrived in Torrance.
She also admitted that upon arrival she "was to go to their apartment [Davis and
Moore] and they would have [ housing] arrangements for me." This was done and
after a sojourn in a motel she thereafter found her own apartment. Pesek was
examined about her contacts with Davis and Moore. While insisting that there were
no "meetings" between them, she conceded that "as far as discussions , naturally,
when we were supposedly working at the same thing, there was perhaps discussions,
but not-there was no meetings-basic meetings of any kind." She was then asked
if this meant a group of Wallace operatives "being together and discussing it" and
replied, "We would see each other occasionally."
(g) Another facet of Pesek's sojourn in Torrance, as narrated by her, may best be
described as a cloak and dagger tale. More particularly, it casts considerable doubt
on her basic credibility herein. By way of introduction it should be noted that she
claimed her job was uneventful and that she found `Just the average group of
American working people working together." She elsewhere termed it as "just small,
routine, American people working together."
She then testified that she was "running around with-as a matter of fact, working
bars, people that are doing things will congregate together if there's a little demon
in them and I had taken up with a group of-that seemed to-everywhere they'd go,
in public or at Harvey Aluminum, which, myself, I thought there might be some
dope involved in this group. So I started going out with this one fellow." [Em-
phasis supplied.]
She testified further that she "took up with" this man in the group with the thought
that this would give her a lead to "what I was looking for-that I was supposed to
be checking on." This man is identified in the record only as Chuck. Pesek was
fully aware that "there was always union literature " on the seat of Chuck's car and
that this was the same material being distributed by union representatives or agents
to Harvey employees at the plant gate. Despite the prominence of all this union
literature, Pesek claimed, "I didn't quite know whether I was actually into the center
of some dope ring." She made it clear that she was referring to narcotics in this
testimony. Her "detection" of the "narcotics ring" is based upon the following
episode.
One day, Chuck took Pesek's car for a lubrication and left her his own in ex-
change. Pesek placed this as a week or 10 days before she left Torrance. That
evening the group went bowling and Pesek was chilly. Knowing that Chuck had
a bowling sweater in the trunk, she opened it to obtain the sweater. On donning
the sweater, she found a sheet of paper in the pocket and noticed that it contained
a list of names. There were approximately 10 names on the sheet and she recog-
nized some "As the group that I was working with-or that were working -I knew
they were employed by Mr. Ummel." She saw the names of Cal Davis and
Richard Moore and also her own. Pesek immediately decided to return the sweater
with the list to the trunk because she thought that she "was actually into the center
of some dope ring," and that they suspected her of checking upon them. She did
not mention the incident to Chuck.
This awesome discovery and its grave implications created no fears in Pesek and
did not deter her from this investigation of narcotics Her social relationship with
Chuck continued unabated for she testified that she continued to see Chuck "Prob-
672010-63-vol 139-14
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ably not quite as often as I should have but I did see him." She was later asked
if she knew that Chuck was a union organizer and replied, "I am sure he was because
he stated . . . saying he was ... I know he was for the union."
I find that Pesek had a social relationship with Chuck and was also aware of the
fact that Chuck was engaged in organizational activities at the plant. It would
also seem that Chuck had detected the true nature of Pesek's assignment as well
,as that of Davis and Moore. I find that Pesek concocted this cloak and dagger
tale about narcotics with absolutely no foundation therefor in an effort to cover
up one of the purposes of her association with Chuck, namely, espionage on
union activities and directly so at the source. This approach, curiously, is an ap-
proach, similar to that taken by Ray Ummel, another operative at Torrance, as is
described hereinafter. I further find, contrary to Wallace Ummel, that the recall
of Pesek, as well as that of Moore, Feazle, and Ray Ummel resulted from their
detection as undercover agents engaged in labor espionage at the Harvey plant in
Torrance.
(5) As found, Cal Davis testified, and I have found, that Ray Ummel made re-
ports to him concerning the names of Harvey employees who expressed prounion
sympathies and that this information was sent to Wallace in Portland. Moore also
testified that Ray Ummel had made similar reports concerning these employees
which he too relayed to Wallace. Moore further testified that Ray Ummel had
given him four to six such reports in longhand. Further illustrative of Moore's
role in heading up the operation, after Davis left the scene, is his testimony, which
is credited as is the foregoing, that he contacted Wallace Ummel to arrange funds
for Pesek, Ray Ummel, and Tom Feazle. This action on his part, I find, was taken
in September and subsequent to the Labor Day weekend. As noted below, Feazle
also turned in four or five reports to Moore identifying employees who were in
favor of unionization.
Ray Ummel denied that he turned in any reports to Moore. I do not credit his
testimony for various reasons As a preface, it should be noted that Ummel was
somewhat of a rolling stone who circulated from job to job and the record also
discloses a vagueness, if not indifference, upon his part in recalling his personal
involvement in the present matter. His testimony is also marked by a casual and
brash manner which disclosed the following, and in my view, basic defects to his
credibility.
(a) Firstly, it should be noted that Ummel, consistent with his other vague and
loose testimony, was substantially off as to when he worked at the Torrance plant
of Harvey. He testified that he was there for precisely 23 days, all of them in
August. The fact is that he arrived around Labor Day and was hired on September
7 or 8. He worked at least through September 30 and received termination inter-
views in Torrance on October 3 and 5.
(b) He testified that while at loose ends, he was hired by his brother solely to go
to Torrance to check on the crew assigned there by Wallace. His testimony else-
where indicates that he roved the plant to ascertain that Wallace operatives were
on the job. The testimony of his brother as well as that of his coworker, Tom
Feazle, demonstrates that Ray Ummel distorted the nature of his true assignment
there. Thus, Wallace Ummel testified that he sent his brother together with Feazle
to California with instructions to send Lucier and Moles back to Portland. Wallace
Ummel went on to tell how he gave his brother instructions to circulate and learn
what was going on and "let me know in the way of thefts, if he discovered anything."
Ummel later testified that his brother's "line of instructions was basically the same
that I have stated with the others that were sent down there."
Ummel was then asked, "Would it be fair to say then that you gave him instructions
to see to it that the other operatives remained on the job?" He replied that this
would not be correct and that a correct statement would be, "I think what would be
correct would be to say that I asked my brother, as long as he was going down there,
that, if some of the people were not working as they should, to inform them that I
wanted them to work and not eneage in this unauthorized taking off from the plant."
This, of course, discloses that his brother had a previous purpose for going to
Torrance.
Wallace Ummel later testified that his brother had "reported things being stolen
I believe they wanted names reported " Finally, Wallace Ummel was asked
if his brother was asked to check upon Wallace operatives in Torrance. He replied
that Ray Ummel had been asked to check on two of his operatives. He was then
asked if his brother had been sent to check upon other operatives. Wallace Ummel
replied that this was only half true, i e., that his brother had been sent down "To
convey my message," but that "he was not an informer" concerning the other Wal-
lace operatives. As is readily apparent, this is substantially different from Ray
HARVEY ALUMINUM (INCORPORATED), ETC. 197
Ummel's story. I find that he went down as an operative and that he also conveyed
several messages from his brother to other Wallace personnel.
Feazle, his colleague on the assignment, also contradicted Ray Ummel and sup-
ported Moore, Feazle testifying that Ray Ummel performed the same duties that, he,
Feazle, did. These admittedly were of an investigative nature. Moreover, Ray Urn-
mel contended that he had no knowledge of what the other operatives reported. How
then could he check on their attention to duty?
(c) Ray Ummel presented certain fanciful testimony as how he attempted to
"hoax" the Union into putting him on its payroll. This actually is a later stage
of the purported discovery by Pesek of the "narcotics" ring headed by her friend
and bowling companion who by coincidence was attempting to organize the plant.
On or about October 3, Ray Ummel and Tom Feazle decided to take the day off
and did not report for work; this was done without permission. Accordingly, they
were in a bar which they apparently patronized regularly when the bartender, one,
Connors, held a conversation with Ray Ummel. Feazle testified that he was nearby
and able to overhear the talk.
Ummel testified that the bartender told him that he, Connors, was actually an em-
ployee of the Union and asked if Ummel knew that his roommate, Feazle, was en-
gaged in some way in union activities; Ummel pleaded ignorance in the matter.
Connors, who did not testify, displayed a list of names and, according to Ummel,
these were "the people who were actually employed by my brother's firm."
Ummel asked for the source of this list and Connors replied that he had obtained
the names from a friend who was a union organizer and who was Madge Pesek's
boyfriend. According to Connors, Pesek, because of her friendship with the
organizer, had confessed that Wallace operatives were in the area "to do something
about . the union organizing plan." This would appear to be the list or a copy
thereof that Pesek allegedly found in the pocket of the bowling sweater owned by
her friend whom she concluded to be a member of the "narcotics" ring. Feazle
testified along similar lines that he heard the bartender mention him, Feazle, as an
employee of a detective agency and further that the names of Pesek and that of
Richard Moore were mentioned in the conversation.
Ray Ummel immediately decided "to gain self-employment for myself" with the
Union. He promptly told Connors that there might be something to the story;
"that I would like to meet with the Union representatives"; and that he would be
willing to go to work for the Union in order to "check this thing out, within my
brother's organization to see if it was true or not."
About 1 day later, Connors arranged a meeting at his home between Ummel and
one, John Prokopowich, an International representative of the Union, who is also
referred to herein as John Pro. Connors and other union personnel were present.
Ummel then told them that "if they felt that there was that kind of activity going
on at Wallace Detective, I said that I would be more than happy to go to work
for them and check on it and see if there was anything to it, if they wanted to put
me on the payroll." He also testified, "I led the Union representatives along... .
I told them there was something to the story that they had heard about Harvey
employment as far as detectives." He further testified that he "implied" that he
"knew of something."
A spokesman for the union group replied that Ummel's proposal would be con-
sidered and taken up with their superiors. A few days later, Ummel telephoned
John Pro and arranged another meeting. This was held at the union office and other
union officials were present. Ummel in effect repeated his prior proposal that the
Union put him on its payroll to order to ascertain whether "the people from Wallace
weren't there for pilferage but were there for disturbing the Union organizing cam-
paign." He testified that he knew a lot of people by name in the plant because of the
nature of his job and decided that if he turned over to Pro a document with some
expense data and a name, it "would look like I did have some inside information that
would maybe tempt him to hire me." Thus, in contemplation of this meeting,
Ummel took with him a small sheet of paper, one side of which bore some wage
computations. The other side contained the following language which is admittedly
in Ray Ummel's handwriting:
ED McBJm E,
Finishing Dept.
Was in timekeeping at one time-
Will vote for Union-Contact at Joker Tavern-Hinz helped by being in
tavern to get men talking 32 after he left
'It is not clear from the handwriting whether this is "talking" or "taking." The
context would indicate that the former was intended.
198 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
The record demonstrates a laborious attempt by Ray Ummel to explain away the
use of the name Hinz. He testified that he never met Hinz in any tavern; that he never
saw him in any tavern; and "I don't even know if . . . that actually is his name."
While he admitted that he knew that the Union disliked Hinz; that he had seen
Hinz' name in union literature; and that he believed the Union would be likely
to rise to the bait if Hinz' name were used, he still insisted with much confusion:
A. No, I still go back to the statement, that I really don't know whose name it
is or who it refers to and if it is a case say where it's "Hinz," why it was switched
to pertain to the Mr. Hinz of Harvey, I don't know, because the spelling could
either be K-i-n-z, or say it is Hinz-or as far as my knowledge, I didn't use Mr.
Hinz' name in any way. I can't remember using it that way. Why I put the name
"Hinz" down I don't know . . . . [Emphasis supplied.]
A. . And then also the name "Hinz" that is on that paper, who it pertains
to, what Hinz, I don't really know because I don't remember him.
The use of the name "McBride" is explained as follows by Ummel, testifying that
"I think one of the time-keepers was telling me that this McBride was let go because
he voiced his opinion about unions or something like that. I remember that conver-
sation, so I thought it would be a good name to give to the union. Evidently, they
must know about it and [it] would tie in. That was the only reason for it."
Ummel also gave John Pro some other data reflecting expense accounts by Wallace
operatives.
Pro then informed Ummel that he could not put him on the union payroll, but
that inasmuch as Ummel was returning to Portland be should contact International
Representative Caldwell at that location. It may be noted that Ummel, as he testi-
fied, merely "felt like taking a run back up to Portland." The inference is warranted
that one reason for the trip was to contact Caldwell.
Caldwell testified, and I find, that he was contacted in Portland by Ummel around
the end of the first week in October or at the start of the second week; he had
previously been alerted by John Pro to expect the visit. Ummel told Caldwell that he
had been attempting to get on the staff through John Pro and that Pro had referred
him to Caldwell in the hope that "we may be able to use him in The Dalles."
Caldwell further testified as follows:
... He told me that he had lots of information that we could use. He told
me that he had lots of information concerning the spy system, and that he
would-if he went to work for us, that we would have all of his knowledge.
He said that if he went to work for us, it would have to be for a specified length
of time, that he didn't want to be working a short while and then have us kick
him out.
He also testified that:
A. Well, as I just said, he said he could make available to us the modes of
operation of the company in their fighting the unionization by the Steelworkers.
He said he could make available to us absolute proof by which we could prose-
cute any charges we wished to against the Harvey Aluminum Company for
the spying activities that were going on in the plants. He said he could give us
names of the people who were working in the plant as spies.
They met again several days later at which time Caldwell informed him that he
had checked with his superiors and they did not feel justified, because of financial
limitations , in placing someone on the staff.
As is readily apparent, this cloak and dagger tale is a far cry from a trip by one
to California purely for the purposes of overseeing an operation into pilferage. I find
Ray Ummel's testimony on its face incredible in this respect. His contact of the
union representatives, although perhaps naive, is far more consistent with an ill-
planned attempt by a Wallace operative, whose mission had been discovered, to
bore into the Union. I find it difficult to believe that Ray Ummel thought that the
Union, in the face of its knowledge of the blood relationship between him and
Wallace Ummel, would agree to place him on its payroll to investigate his brother.
I am convinced that he probably had a two-fold purpose, mercenary on both
scores. The first was to get on the payroll of the Union and the second, probably
the more significant, to report his gleanings therefrom to his brother for further
monetary gain or just conceivably out of family loyalty. Be that as it may, his
testimony has not been credited where in conflict with that of Moore and Davis.
(6) Another witness for Respondents was Thomas Feazle, a lieutenant in the
guards, who testified that he was sent to California, together with Ray Ummel, and
HARVEY ALUMINUM (INCORPORATED), ETC . 199
commenced work at the Harvey plant on September 6. According to Feazle, their
assignment was to detect "small thefts, prostitution and dope addicts, or dope pass-
ing." He later testified that they were also to look for sales of liquor in the plant.
The two men left the Harvey plant October 5 and returned to Portland. Feazle
claimed that he found no evidence of what they were sent to find and that he made
no written reports to Wallace Ummel. Actually, the net result of his month's work
was nil because it consisted of two telephone calls. In the first, Feazle asked for
permission to work part time for another security agency and at the same time
reported that he had made no contacts. While he received permission to work for
this other agency, he was unable to persuade them to give him the post. In the second
telephone conversation, 2 weeks later, he reported that he had been shifted about
in the plant too much, but that it might be desirable to shift him again.
Feazle admitted knowing Davis for a long time but denied making any reports to
him. He contended that Davis was not working there at the same time that he was.
He is contradicted here by Pesek who placed Davis on the scene when Feazle ar-
rived. She also testified concerning "discussions" among the group working for
Wallace. Even Ray Ummel who arrived with Feazle placed Davis on the scene at
the time. As indicated, Feazle allegedly overheard the conversation when the bar-
tender told Ray Ummel that "we were working for a detective agency and that they
had her [Madge Pesek] pegged." I find, consistent with the credited testimony of
Moore and Davis, that Davis was present at the same time as Feazle and that Feazle
made reports on his espionage activities to both men, originally to Davis and, after
Davis' departure, to Moore.
It may be noted that Feazle claimed he had never heard anything from Wallace
Ummel about associating with union groups or organizations. This, of course, is
contrary to Wallace Ummel's affidavit, quoted above, giving his instructions that "any
union associations or activities in which they should engage were solely for the
purpose of gathering information regarding pilfering, thefts, and the disposal of
stolen merchandise and that they were not to investigate or report on labor matters."
While the testimony of Feazle hangs together somewhat better than that of the
other witnesses for Respondents, the General Counsel points out that his testimony
was presented after Moore was ostentatiously laid off only several days after he
testified very much adversely to Respondents and was thereafter discharged in the
following month. It is contended therefore that this example was before Feazle
as well as the other witnesses herein at the time they testified. This is significant
because Wallace is a small organization and perforce, the ostentatious elimination
of one employee would indeed be noted.
Feazle did patently err in his testimony about his affidavit. For he did sign the
stock affidavit prepared by Wallace Ummel with the assistance of counsel for Harvey.
Yet he chose to characterize it, as did Pesek, as one he had in effect written himeslf.
Feazle testified that "I told him [Ummel] ... what my orders was and told him, if
they'd make it up, I would stop in and sign it." Needless to say, the language was
that of Ummel and Harvey counsel and not that of Feazle. Under the foregoing
circumstances, and in view of the patent flaws in the testimony of the other witnesses
for Respondents, I do not accept Feazle's testimony which is contrary to the heavy
preponderance of the evidence.
E. Conclusions concerning labor espionage
On balance, to accept Respondents' version of the case perforce leads to a pre-
posterous result. It would mean that a group of unrelated and not highly educated
people, plus a college sophomore who was working his way through college, all of
them with no union membership or sympathies, proceeded to concoct a tale of
engaging in labor espionage in two States on the premises of a large national concern.
And, with their testimony in basic agreement in substantial respects, one would
have to conclude further that they did this as a joint venture for monetary or ideolog-
ical gain. The monetary gain is nonexistent save in the case of Davis. And none
of those who testified for the General Counsel have been shown to be identified
with or sympathetic to the Charging Union, to any other labor organization, or even
to the labor movement in general . One is left with a group of employees per-
sonally selected , with one exception , by Wallace from among his existing and known
personnel , thus scotching any concept that prounion adherents had been planted
by the Union.
To sum up , Respondents ' case is riddled with improbabilities which are com-
pounded by the heavy preponderance of the contrary credible evidence. I believe
that .the General Counsel has well proven that Respondents did precisely what the
complaint alleges they did.
`ZOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of all the foregoing considerations , and a careful and deliberate consid-
eration of the testimony herein , I find that Respondent Wallace was engaged by the
other Respondents herein to spy on, report on the union sympathies of the employees
at Harvey plants, and to identify them. This labor espionage actually commenced
at The Dalles, Oregon, plant on or about June 9, 1960. It was initially carried on
by the first two operatives, Davis and Wagner. Wagner left in mid-July. Davis
left later in July when he was transferred to the Torrance, California, plant, where
he, together with Richard Moore, made application for work on July 25. This I
find was a direct continuation of the labor espionage at The Dalles. I find that
Davis also spent 1 day at The Dalles plant on this labor espionage late in August
or around September 1 and that Miller was so engaged in identical conduct through
approximately September 7. I find that Hahn turned in names of union sympathizers
at The Dalles through August 12, 1960.
I find that Davis was employed at the Torrance plant together with Richard
Moore in this scheme. I find that Moore directly participated in the scheme until
the first of October or shortly thereafter and that Davis participated therein from
July 26 until approximately September 12, although, as noted, he was absent for
a short period prior to Labor Day, and his participation during the week after
Labor Day did not involve personal espionage but rather supervision over the
espionage activities of the other operatives.
I find also that the next two operatives, Lucier and Moles, were terminated by
Davis around Labor Day, September 5, 1960; that Davis arranged for Ray Ummel
and Feazel to come down in their place; and that Davis threatened Pesek with re-
placement if she did not send in reports. I find that in the week after Labor Day,
Pesek, Ray Ummel, and Tom Feazle sent in reports with names of prounion sym-
pathizers through Davis. I further find that Pesek, Feazle, and Ray Ummel sent
in reports during the remainder of September from September 12 on and until the
first of October, through Moore, and that the reports contained names of prounion
sympathizers on the Harvey payroll.
One must indeed go back to the early days of the statute to find cases involving
basic violations of this nature. The Court of Appeals of the Sixth Circuit early
stated that "The employment of undercover operatives or missionaries to spy upon
union affairs is a violation of the statute." Ohio Power Company v. N.L.R.B., 115
F. 2d 839 (C A 6). This concept was approved in early decisions by the Supreme
Court in N.L.R.B. v. Fansteel Metallurgical Corporation, 306 U.S. 240; Consolidated
Edison Co. of New York, Inc. v. N.L R.B., 305 U.S. 197, 230; N.L R.B. v. Fruehauf
Trailer Co., 301 U.S. 49, and N.L.R.B. v Friedman-Harry Marks Clothing Co., 301
U.S. 58, 75.
Two other cases are similar to ,the present one. In Fort Wayne Corrugated Paper
Company v. N.L.R B., 111 F. 2d 869 (C.A. 7), the court stated "The action of peti-
tioner in employing . . . detectives to ascertain the activities of the union and the
doings of the employees who were members of the union is not unlike that discussed
and criticized in Consolidated Edison Company v. N.L.R.B., 305 U.S. 197, 230....."
Again, in The Atlas Underwear Company v. N.L.R.B., 116 F. 2d 1020 (C.A. 6), the
court stated that the facts served only to "compel the inference that the primary
purpose of the employment of the private agency was espionage over and surveillance
of union activities." Other cases which recognized that this type of activity was
in utter disregard of employees' rights under the statute are N.L.R.B. v. Grower-
Shipper Vegetable Assn., 122 F. 2d 368 (C A. 9); N.L.R.B v Calumet Steel Division
of Borg-Warner Corporation, 121 F. 2d 366 (C A. 7); Montgomery Ward & Co.
v. N.L.R.B., 115 F. 2d 700 (C.A. 8); N.L.R.B. v. Public Service Co-ordinated Trans-
port, 177 F. 2d 119 (C.A. 3); and N.L.R.B. v. Baldwin Locomotive Works, 128
F. 2d 39 (C.A 3). I find that by engaging in such labor espionage, Respondents have
engaged in unfair labor practices within the meaning of Section 8(a)(1) of the
Act, thereby interfering with, restraining , and coercing employees in the exercise
of the rights guaranteed by Section 7 of the Act.33
33 Respondents, in this most thoroughly litigated case , have made no claim predicated
upon the 6 months' statute of limitations contained in Section 10(b) of the Act Under
the authority of N L R B v. A. E Nettleton Co , et at, 241 F 2d 130 (C A. 2), it would
seem that an objection not raised before me as an agent of the Board is waived pursuant
to Section 10(e) of the Act See also N L R B. v Fredrica Clausen , d/b/a Luzerne Hide
& Tallow, 188 F 2d 439 ( CA. 3), cert denied 342 US. 868 Local Lodge No. 1424,
International Association of Machinists , AFL-CIO; et at (Bryan Manufacturing Co.) v.
N.L R B , 362 U S. 411, does not expressly hold otherwise. In any event, a charge was
first served on Wallace on February 27, 1961, and would support all unfair labor prac-
tices found subsequent to August 27, 1960 ; an identical charge was served on Harvey at
HARVEY ALUMINUM (INCORPORATED), ETC. 201
F. The discrimination against Ballard Dillon
The consolidated complaint alleges that Respondent Harvey discriminated against
Ballard Dillon, an employee at the Torrance plant, from on or about November 23
up to December 9, 1960, causing Dillon to terminate his employment on the latter
date and thereby constructively discharging him. Respondent Harvey stated on
the record that it would not introduce any evidence on the merits with respect to
Dillon and would develop evidence solely in support of its contention that Dillon
was a supervisory employee not within the protection of Section 8(a) (3) of the Act.
There is some conflict between Dillon and his foreman, Harry Saldamando, as to
the duties of the former.
Dillon entered the employ of Harvey in August 1956 and was employed as a
general machinist in the laboratory machine shop. This shop is part of the
laboratories which are under the supervision of Wayne Rotsell, the chief plant
metallurgist, and his subordinate, Chief Chemist Bob Pooler. The shop is under
Foreman Harry Saldamando, and its personnel, at the time material herein, consisted
of three general machinists, Bogue, Stuart, and Dillon, who was allegedly a leadman;
two machine operators; and one trainee, making a total of six plus Saldamando.
Dillon normally worked along with the other two general machinists and the
thrust of Harvey's defense is that he had supervisorial duties when Saldamando
was on vacation, was ill, or was out of the department on company business. It
is undisputed that Dillon was a competent workman. While his pay scale was higher
than that of the general machinists, the testimony of Saldamando discloses that this
was so because of his tenure which had brought him to the top of the scale earlier
than the other general machinists. In fact, at the time of this hearing, the other
two general machinists in the shop had arrived at the scale enjoyed by Dillon
as of the time he left. It is undisputed also that Saldamando did the hiring and
firing; the conflict is solely as to Dillon's role when Saldamando was absent.
As for the merits of the case, the uncontroverted case for the General Counsel
is indeed strong. The Union had been carrying on an organizational campaign
at the Torrance plant and a Board election was duly scheduled and held on Monday,
November 28, 1960. On the previous Monday, November 21, Dillon agreed to
serve as an observer at the election. On Wednesday, November 23, the Union sent
a wire to Harvey wherein it listed its proposed observers at the election, this list
including Dillon. Dillon testified, and I find, that on this same day, Saldamando
spoke to him about this undertaking in the presence of several other employees,
including Bogue and Stuart. Saldamando approached Dillon that afternoon and
asked, "What's this about you and the union?" Dillon pleaded ignorance and
Saldamando replied that Harvey had "a paper in there with your name on it with
some others as being union observers. . . . Maybe you could still get out of it
If you go see Al Hinz . . . maybe you could tell him that you want no part
of it, that it was a mistake and possibly you could still get Out of it." 34
Later that afternoon, Dillon was at work and was approached by Lawrence Harvey,
an owner of Harvey. Harvey joked with him that Dillon was not "smiling" and
went on to state that "when you boys get the union in . . . then the work will be a
lot easier. You won't have to work so hard." Dillon replied that work was no
easier in union shops and Harvey said, "I understood that you felt that getting
the union in would be the start of the millenium." Dillon responded that this would
help matters, but Harvey disagreed and explained why he disliked unions. He
stated in part "that it would just make it bad for everybody if we got a union,"
and asked Dillon, "How do the rest of the boys feel about ,it?" Dillon replied that
he did not know.
the same time In addition , earlier charges were served upon Harvey on January 24
and 26 and February 7 and 10, 1961, and these would encompass unfair labor practices
dating back to July 24 and 26 and August 7 and 10, respectively. On this posture, the
unfair labor practice findings herein are predicated upon conduct subsequent to such dates
and the preceding conduct in what has been found to be one continuing scheme to engage
in labor espionage is relied upon as evidence which sheds light upon and interprets the
latter.
$* Respondent Harvey in effect defends on the merits at this point despite its contrary
claim . It is contended that this wire was received an hour later than the time at which
Dillon placed this talk . The General Counsel contends , and Harvey resists the claim,
that the wire could have been telephoned in previously Be that as it may, Dillon was a
clear, intelligent , and straightforward witness whose testimony impressed me as being
*ruthful . Hence, his testimony has been credited in full in this respect as in others.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The singling out of Dillon by Harvey for a talk is not without significance.
Dillon had been in this machine shop for over 4 years and it was the second time
that Harvey had spoken with him. The first time had been approximately 1 year
before when Harvey questioned him about a job then pending in the shop. It is
a fair statement, therefore, that after 4 years of employment top management saw
fit for the first time to seek out Dillon for a conversation unrelated to his job and
which bore solely upon his union sympathies and activities. The inference is war-
ranted that Harvey considered this a matter of primary concern.
Still later that same afternoon, Saldamando again brought up the topic. He
approached Dillon, as the latter testified, and "asked me again to try to withdraw
my name, or something. He said it was going to make it tough on me and tough
on everyone in the shop if I did it.... If I was an observer." [Emphasis supplied.]
On Friday, November 25, a preelection conference was held between representatives
of the Union and Director of Industrial Relations Hinz, under the auspices of a
Board field examiner. Hinz then made the assertion that Dillon was a supervisor
and should not serve as an observer. Dillon spoke up and claimed that he was
not a supervisor. Hinz adverted to the discharge of one, Gipson, during the previous
July and claimed that Dillon had discharged him. Dillon protested that he had not.
As will appear below, Dillon did not discharge this employee, indeed did not have
the authority to do so, and the contention of Hinz was contrary to the fact. The
Board field examiner, according to Dillon, stated that there was a "slight possibility"
that the Board might decide Dillon was a supervisor. Union Representative John
Pro stated that everyone concerned well knew that Dillon was not a supervisor, but
in order to avoid an argument he would prefer to withdraw Dillon's name as an
observer. Dillon indicated that this was 'satisfactory with him; he was excused
and returned to work.
At 4 p in. that same day, according to Dillon and I so find, Saldamando came
by and advised Dillon that he would not work the next day, Saturday, November 26.
It is to be noted that this shop had regularly worked Saturdays during Dillon's tenure
in the plant and that Dillon had regularly done so since early in 1959. Saldamando
went on to say that, "I thought maybe since you were not going to be an observer
they would allow you to go ahead and work tomorrow" but that he had seen one,
Mondry, technical director of the Company and department head over the machine
shop, and that Mondry had stated "the order still stands and you [Dillon] are still
not to work tomorrow." This, it is clear and I so find, was directed solely at Dillon
because the rest of the department did work that Saturday as usual. In fact, only one
machine operator who disliked Saturday work did not regularly work on Saturdays,
pursuant to his request, and with the approval of management.
Saldamando also told Dillon on this occasion that he should report to work at
8 a.m. on the following Monday rather than,at 6 a.m. when the others in the depart-
ment would report. This, I find, served to deprive Dillon of 2 hours of overtime
work. Dillon asked why he would not receive this overtime work and Saldamando
replied, "Well, that's pretty obvious." On the following Monday, the rest of the
crew reported at 6 a.m. and worked a 10-hour day whereas Dillon reported at 8 a.m.
and worked 8 hours. This arrangement lasted for 2 days with Dillon restricted to
an 8-hour day in contrast to the 10-hour day worked by others in the department.
Then all were put back on an 8-hour day.
The Union apparently lost the election. On Tuesday, November 29, Dillon
was leaving the plant and was told by a guard that Hinz wished to see him. Dillon
went to the latter's office and Hinz asked how he felt about the election results.
Dillon replied, as he uncontrovertedly testified and I so find, that he was not unduly
disappointed, whereupon Hinz announced that "if I was in your position I wouldn't
feel so good today." Dillon asked precisely what his position was and Hinz laughed
and stated, "Right at the top of the list." Hinz then announced that he and Moudry
had discussed the situation and had decided it best to offer Dillon a 30-day leave
of absence to find another job. Hinz added that Dillon "had been advocating union
conditions in the shop and that they thought I should go and find myself a job in a
union shop and they would give me thirty days to decide whether or not I like it,
and if I didn't like it I could come back to my old job." Dillon was not overwhelmed
by the offer and declined it.
It would seem that this was consistent with Hinz' testimony, previously noted,
that it was Harvey's policy to punish specifically named individuals for offenses "of
a maior nature" whereas, in lesser offenses, Harvey was not interested in the names
of offenders but in correcting the basic situation. The inference is warranted
that top management of this plant, and particularly Hinz, by singling out Dillon,
considered his demonstration of union sympathies or interests to be an offense of
a major nature.
HARVEY ALUMINUM (INCORPORATED), ETC. 203
On the following Saturday, December 3, Dillon was again not called into work
although all the others in the department were. On the previous day, as Dillon un-
controvertedly testified, he asked Saldamando in front of the other employees if he
would work on Saturday. Saldamando replied that Dillion would not and added,
"From now on you are the 40-hour kid."
Dillon continued to report for work. Then, on Tuesday, December 6, Saldamando
told him that he was to fill out a report each day as to everything he did, where he
went in the plant, and the time spent on each assignment. This was a matter of first
impression for Dillon. In fact, no one else was so instructed at the time and there
is no evidence that anyone else ever had been. It is to be noted that no contention
whatsoever is made ,that Dillon's work had been less than diligent and eminently
satisfactory in every respect, that he wandered around in the plant, or that he spent
too much time on assignments.
On Wednesday, December 7, Dillon went to Saldamando and told him that he
"had had it" and was leaving on Friday, December 9. Saldamando responded with a
burst of candor that he and Dillon had been good friends but "there is nothing here
for you" and that it would "probably be better for all of us if you do leave."
Dillon left the employ of Harvey on December 9. He was asked herein as to the
reason why he had left his job and replied that he had done so because the loss of
overtime work had pressed him financially.
In sum, the picture is one of an exemplary employee who was a highly skilled
machinist and had the misfortune, in this plant, of believing in unionization. More
particularly, his downfall was that he agreed to serve as an observer for the Union
and thereby his prounion sympathies, or at least Hinz and Harvey so regarded them,
came to the attention of management and made him a marked man in the eyes of top
management , including an owner and the director of industrial relations. With no
attack whatsoever made on his ability, it is readily clear that his overtime was
abruptly withdrawn and no reasons in any way connected with a nondiscriminatory
purpose are assigned.
On this record, there is only one explanation, namely, that it was done to punish
him for his union activities or for management's belief that he was so engaged.
To the withdrawal of overtime was added the requirement on December 6 that he
alone fill out a closely detailed report on his activities, again an retaliatory and
restrictive measure. On December 7, Saldamando as much as admitted Harvey's
discriminatory motivation and that it was to Dillon's interest to quit. That Re-
spondent Harvey sought to eliminate him from the plant is demonstrated by Hinz'
invitation to Dillon to seek employment in a unionized plant. While Dillon initially
refused, the handwriting was plainly on the wall and, after the imposition of the daily
reporting requirement on December 6, he gave up and left.
On this uncontroverted evidence, it is readily apparent that Respondent Harvey
constructively discharged Dillon on December 9 in violation of Section 8 (a) (3) and
(1) of the Act if Dillon was an employee, rather than a supervisor as Respondent
Harvey contends. I turn, therefore, to a consideration of that contention and the
evidence discloses little support for the claim.
Aside from Foreman Saldamando, there were six in this department. Dillon,
Bogue, and Stuart were general machinists who performed substantially the same
work. The remaining three included two machine operators and one trainee. The
general machinists worked on all of the machines as well as on prints, whereas
the machine operators were skilled only on a particular machine. The machinists
also were more versatile than the machine operators as they could work with all
metals including steel and titanium, whereas the latter handled only aluminum.
It is Harvey's contention that Dillon was a leadman over the other five in the shop
and, further, that he had supervisory duties. I find no evidence to support the latter
claim and a preponderance of the evidence is contrary to the former.
(1) Saldamando testified that he informed new employees Dillon was the leadman,
and that if they encountered problems and Saldamando was not available, they
should take it up with Dillon. He also claimed that he told employees that Dillon
had authority to hire and fire and that he once told Dillon he had the right to hire.
He conceded that no one in management had ever authorized him to tell Dillon that
he could hire and fire, that Dillon had never hired anyone, and that Dillon had not
interviewed anyone prior to hiring. Saldamando claimed that he decided by him-
self that if Dillon was the leadman, he was in charge and authorized to "take over
completely" and hire and fire.
The testimony of Saldamando is substantially refuted in several respects. In the
first place, Saldamando contradicted himself and demonstrated that he was attempt-
ing to shade his testimony in favor of his employer's position herein. While stressing
the authority he bestowed upon Dillon, he testified further that he, Saldamando,
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired three or four people during Dillon's tenure in the department whereas, as
stated, Dillon never hired anyone and never interviewed any would-be applicants.
Saldamando's procedure was to interview applicants privately and later, as he put it,
"talk it over with" Dillon. Dillon, an impressive witness as heretofore indicated,
agreed that he never hired or fired anyone and, in fact, never imposed discipline upon
anyone; nor did he make any recommendations. The record discloses but one de-
parture from this, if that, when Saldamando took his annual 2 weeks' vacation in
1'960.35
Saldamando is further refuted by the testimony of Archie Stuart, a general
machinist in the department, who testified that he replaced Dillon, albeit 2 months
later in February 1961. While Stuart, still in the employ of Harvey, characterized
Dillon as the previous leadman, he made it clear that he and Dillon had the same
duties and that he, Stuart, was a "working leadman." Stuart had more tenure than
Dillon, although his skills were developed more recently, for he started in November
1955 as a trainee and became a general machinist 1 or 2 years before the instant hear-
ing. Dillon was his predecessor as working leadman but, contrary to Saldamando,
Stuart claimed that he had never been given any instructions about Dillon's re-
sponsibilities as a leadman. Similarly, he recalled no occasion in this small depart-
ment when, with Saldamando out of the shop, any of the personnel would speak to
Dillon about leaving early or concerning the starting hour on the following day.
Saldamando's testimony was also marked by vagueness and contradictions. He
testified that he was "sure" he told Dillon "he could hire and fire"; elsewhere, he
testified that, "I don't remember if I did or not. I think I did once," and, "I don't
quite remember now, but I think I did." He also testified that he told the men
Dillon had such authority. Elsewhere, he testified that, "I don't recall if I did [tell
IBogue]. I might have" He later said that he was "pretty sure I did, but . . .
don't recall. It has been so long."
Respondent Harvey makes much of Dillon's purported supervisorial responsibilities
when Saldamando was elsewhere in the plant on a mission. Stuart makes it clear how
inflated this claim is because, consistent with the testimony of Dillon, Stuart testi-
fied that when Saldamando was out of the shop, he would look to Dillon for answers
to problems concerning the performance of his tasks. The record demonstrates that
Dillon was a particularly skilled employee. As Stuart put it, if he was not sure how to
do a job, Dillon would show him. He also looked to Dillon for part of his training
in becoming a machinist. Dillon agreed, testifying that a man tackling a new assign-
ment might ask him how best to handle it; Dillon did not volunteer, doing this only
when asked. I find that Dillon's participation was purely as a skilled craftsman show-
ing a less skilled worker how to do a job. I do not credit Saldamando's assertion that
he asked Dillon what he thought of the abilities of the various men, that Dillon would
inform him thereof, and that Dillon's opinions meant a great deal to him. I credit
Dillon that he never made any recommendations concerning the men.
(2) Stuart testified that after becoming a working leadman he answered the tele-
phone when Saldamando was out of the shop for periods varying from 10 minutes
to 11/2 hours. This shop functions as a regular machine shop and repairs tools
and parts for use in the laboratory. In Saldamando's absence, Stuart logs in jobs
and changes assignments when rush jobs come in. The only time he logs in jobs
is in the absence of Saldamando. However, when Saldamando is absent in the
nearby heat treat department for 2 or 3 hours daily, as he testified, Stuart does
not assign work but waits for Saldamando to return to handle it. I find on his testi-
mony that except for Saldamando's annual 2 weeks' vacation discussed below, Stuart
would assign work only on the occasional absences of Saldamando and at that not
in all cases.
(3) Saldamando attempted to portray his absences from the shop as lengthy ones
which took him out of the machine shop to various plant locations approximately
50 percent of the time. This is manifestly far more absentee time than Stuart
attributed to him. And Stuart is supported here by Virgil Bogue, also currently a
machinist in the shop, who testified for Harvey.
Bogue originally testified that he had been in the shop for 31/2 years and that
he and Dillon did the same work. While he placed Dillon as the leadman in
Saldamando's absence, he too controverted the latter, testifying that Saldamando
never told him what Dillon's duties were when Saldamando was absent. On such
occasions, Dillon would assign the work and answer the telephone. Bogue agreed
that Dillon never assigned any overtime; that he, Bogue, contacted only Saldamando
about problems; that he had never been told to see Dillon about working condi-
35 This Is Harvey's claim of Dillon's involvement, or more accurately as I view it, lack
of involvement in the discipline of one employee . It is treated hereinafter.
HARVEY ALUMINUM (INCORPORATED) , ETC. 205
Lions; and, contrary to Saldamando, that he had never been told that Dillon had any
authority to promote or discipline anyone.
As Bogue succinctly put it, Saldamando's job was quite different from that of
Dillon. The latter never did Saldamando's job and Saldamando did not do much
shopwork. Bogue also did not agree with Saldamando concerning the latter's
absences. Bogue testified that these absences were of short duration, from 15 to 20
or from 15 to 30 minutes. And, if Saldamando was absent, an employee with a
problem would endeavor to locate him and, only if unsuccessful, would he then
seek out Dillon. He testified that Saldamando laid out the day's work each morning
and would assign tasks to a particular worker consistent with his skills. The only
time Dillon did so was when Saldamando was ill or on his annual vacation. Sald-
amando was apparently favored with good health, for he conceded that he had been
absent but 3 or 4 days outside of his annual vacations. As Bogue put it, Dillon worked
just like the other machinists.
(4) Saldamando, as indicated, testified contrary to the other witnesses that he
spent 50 percent of his time out of the department during which Dillon presumably
filled his place. But Saldamando included in this total the 2 to 3 hours he daily
spends in the heat treat department which is immediately adjacent to the machine
shop; more particularly, if and when he is needed by his men they can and do
come to get him in this area. It is thus clear that his true -absences from the shop,
in terms of unavailability, were far less than he indicated.
(5) Saldamando testified that approximately three to four times daily, calls would
be made from the office for rush jobs and that, on occasion, when a call came
in during his temporary absences, Dillon would tell an employee to suspend his
existing task and do the rush job. In .the same vein, Saldamando testified that work
assignments came in during the morning and that, once or twice a week in his
absence, Dillon would do his job of picking up the samples and recording them in
the book.
The testimony of Dillon discloses that this morning chore, including laying out the
work in the proper order of performance, whether rush or nonrash, plus recording
the jobs in a ledger, took 25 to 30 minutes at the most. The men would then help
themselves to the jobs, each consistent with his skill, taking the duly marked rush
jobs first. Upon completion of a job, the man would proceed to take up the next
job without directions. This, it should be noted, was the second load of work,
because the initial assignments were waiting when the crew reported. It is also
readily apparent that the decisions as to which jobs would be rush jobs were made
not by Saldamando or Dillon but in the office and the office girls would relay and
announce the decisions to Saldamando for compliance.
(6) Saldamando admitted that an employee who wished to leave early obtained
permission from Saldamando. In the absence of the latter, the employee would
only notify Dillon and leave. Upon Saldamando's return, Dillon would report the
departure to Saldamando who would say "okay"; this happened quite frequently. It
is significant, in this context, that Saldamando had never refused anyone permission to
leave early. His further testimony that the men had been instructed by him to
report to Dillon when he was absent discloses that this was in the nature of a
ministerial act so as to keep Saldamando posted on the whereabouts of his crew. He
conceded that he knew of no case where he or Dillon ever told a man that he could
not leave early.
(7) Actually, there is evidence disclosing that Saldamando's supervisory status
may well have been a limited one under the Harvey system. For in August 1960,
Dillon received a pay raise of 5 cents per hour. He uncontrovertedly testified that
he initially asked Saldamando for it and it was not forthcoming. He then visited
Pooler, Saldamando's superior, and requested the raise which was granted.
(8) Saldamando was paid $2.80 an hour and Dillon $2.75. Dillon's scale was
higher than that of the other machinists, but the record makes it clear that this was
because of his tenure. Through seniority, he had arrived at the top of the scale,
a status since achieved by other machinists in the department. As for Dillon's
additional responsibilities during Saldamando's annual 2 weeks' vacation, so much
stressed by Harvey, the record discloses that Dillon received no additional pay
during these periods.
(9) Dillon testified, and I find, that if employees wanted time off during Salda-
mando's annual 2 weeks' vacation, they would contact Pooler or Pooler's superior,
Rotsell, the chief plant metallurgist. He was then asked if he, Dillon, was in 'a
position to give the men time off, and replied that ,the situation never arose. It is
clear that the men might contact Dillon during such periods, but solely as to job
problems.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pooler did not testify. Rotsell testified that so far as he was concerned , Dillon
wasin charge of the department when Saldamando was away. However, he con-
ceded that there was no written instruction or rule to this effect . While he contended
that Dillon would come to him or to Pooler if some unusual problem arose, he
did not specifically deny Dillon 's testimony that the men would see Rotsell in order
to obtain time off. Actually , there is evidence of only one problem out of the
ordinary , that involving a drunken employee , treated below. I credit Dillon herein.
(10) Harvey relies mostly herein on an episode during Saldamando 's annual
vacation in the first 2 weeks of July 1960; as is apparent , this was approximately 5
months prior to Dillon 's departure from the employ of Harvey . According to Rotsell,
this incident took place on Thursday , July 14, with Saldamando due back on the
following Monday, July 18. While Saldamando did not know whether this was
during ,the first or second week of his vacation , Harvey records support Rotsell.
It is undisputed that a helper in the department , Gipson , reported for work drunk,
climbed upon a workbench , and promptly fell asleep . The men in the department
attempted without success to awaken him. Dillon summoned the captain of the
guards who , together with another guard , managed to awaken Gipson and escort him
from the plant.
Rotsell presented some ,testimony concerning this episode which went beyond
that of both Saldamando and Dillon . The testimony of the latter two is in agree-
ment that Gipson returned to work immediately after the incident and was not
disciplined therefor . While Saldamando testified that Gipson had started to "goof
off" several months back , it is clear, and both Saldamando and Dillon agree, that
Gipson disappeared or walked off the job one day subsequent to the sleeping incident
and that this additional incident, viz, leaving early without notice or permission, led
to his discharge . I do not credit the testimony of Rotsell that the man was released
on the second day of Saldamando 's return because of the sleeping incident. I find
that this new dereliction on the part of Gipson led to his discharge.
As for Dillon's participation in the Gipson incident , the record discloses the fol-
lowing. Rotsell claimed that Dillon notified him of Gipson 's forced departure from
the plant with a guard escort directly after the event. Rotsell then asked if Gipson
should be returned to work or dismissed . Dillon did not answer and Rotsell asked
Dillon "if be thought he would like to check" with Saldamando who was in the
Los Angeles area and then advise Rotsell on the following day what the two had
decided.
Dillon called back and stated that he had spoken with Saldamando and the latter
had no objections to releasing Gipson. Rotsell asked if Dillon wished to release
Gipson and Dillon replied , "No, he would rather wait until Harry came back
Monday and have it be done then." Rotsell claims that he asked Dillon for his
views because Dillon was responsible for the department , was familiar with this
situation , and should have been able to decide what was necessary . It is immediately
apparent , nevertheless , even on the face of Rotsell 's testimony , that Dillon had to
clear the matter with Saldamando.
Saldamando testified that Dillon telephoned him during the first or second week
of his vacation ; announced that there had been difficulty with Gipson who reported
for work drunk; and asked what to do. Saldamando replied that Dillon was in full
charge and that it was up to him . Dillon said that he disliked taking any action.
Saldamando replied that Gipson would give Dillon trouble later on and suggested
that Dillon confer with Pooler and Rotsell and decide on appropriate action, after
which he should telephone him again if the matter became more serious . Dillon
did not call Saldamando again. Just how Gipson could give Dillon trouble, with
Saldamando on the scene , is not disclosed.
Saldamando returned to work on Monday and discharged Gipson on the follow-
ing Tuesday or Wednesday . Saldamando was asked if Gipson had done anything
between the day he, Saldamando , returned from his vacation and the day of his
discharge and replied , "Well, a couple times there he snuck off on me, and I didn't
like it, and I had to go look for him ." He made it clear that this was subsequent
to his return from vacation . Saldamando allegedly discussed the case with Dillon
before discharging Gipson , asking Dillon what he thought . Dillon replied that he
did not believe Gipson would work out and there would be trouble with him . Salda-
mando claimed that he and Dillon concluded that this would be the best step to take.
Actually, a more realistic picture of Dillon's ministerial rather than decision-
making role in the plant is found in Saldamando's claim that upon returning from
his vacation he asked Dillon why he had not discharged Gipson. Dillon , consistent
with never having functioned in the personnel area despite his tenure dating back
to 1956 , replied , "I talked it over with Bob [Pooler ] and they decided to wait until
you come back."
HARVEY ALUMINUM (INCORPORATED), ETC. 207
Dillon testified that he never knew whether he was officially a leadman or not
and that he more or less assumed the duties 2 or 3 years before he left the Company.
This, of course, is consistent with the fact that he was paid no more than the top
of the wage scale in his classification as machinist. While his replacement, Stuart,
was made a working leadman in February 1961, and advised of his general duties,
Stuart's testimony discloses that his activity is all in the area of answering the
telephone in Saldamando's absence, logging in jobs, changing jobs as the occasion
demanded, and being a "working leadman."
Dillon did testify that on one and only one occasion, 2 or 3 years before, Salda-
mando went on his annual vacation and told him that he would be in charge. Salda-
mando further instructed him to keep the shop running and, in case of an emergency,
to contact Rotsell. This, of course, is precisely what Dillon did when the Gipson
problem arose 2 years later. Nor did Saldamando on this occasion state anything
about hiring or firing personnel. This, too, is the only occasion for Dillon's involve-
ment, remote as it is, in any personnel problems during his several years as leadman,
actual or apparent, and covering for Saldamando during the 1958, 1959, and 1960
vacations.
As for the Gipson incident, Dillon testified that the guards sent Gipson home;
thereafter, Rotsell sent for him and asked what had happened. Dillon replied that
Gipson had gone to sleep and that the captain of the guards had sent him home.
Rotsell then asked Dillon if he, Rotsell, should discharge the man or if he should
wait to consult with Saldamando upon his return and ascertain his wishes. Dillon
replied that "I'd just as soon you'd wait until Harry got back.... Maybe there was
something wrong, maybe he had a reason."
Dillon claimed that he never recommended the discharge of Gipson after Salda-
mando returned, that he did not go to Saldamando concerning the problem, and
that he had no recollection of Saldamando discussing the incident with him after
his return. One day, subsequent to Saldamando's return, Gipson left at noon without
permission and without checking out and did not return until the next morning.
That morning, Saldamando discharged Gipson without consulting Dillon. This, of
course, is consistent with Saldamando's testimony, noted above, that he had similar
trouble with Gipson previously. Indeed, Gipson had taken off on a prior occasion
without permission, and Pooler asked Dillon what should be done. Dillon replied,
"Well, if I was doing it I'd probably fire him." That Dillon was not "doing it" and
was not making effective recommendations is demonstrated by the fact that no
action was taken and that Gipson was discharged unilaterally by Saldamando only
after another offense subsequent to his drunkenness and without consultation with
Dillon.
I find, consistent with the testimony of Dillon, that Gipson was discharged by
Saldamando for leaving work early without permission, and that Saldamando made
the decision independently of any recommendation from or consultation with Dillon.
The various factors set forth and the preponderance of the evidence demonstrate
that Dillon did not have the authority to hire or fire or to make any effective rec-
ommendations with respect thereto. The Gipson incident was flagrant and it war-
ranted immediate dismissal, yet Dillon did not act and management awaited the
return of Saldamando some days later. Indeed, the record demonstrates that the
presence of a leadman or working leadman was of no urgency in this department,
because Dillon's replacement, Stuart, was not designated as leadman until February,
approximately 2 months after Dillon's departure, and there is no evidence of any
interim service by anyone in this capacity.
Dillon served for 3 years during the annual 2 weeks' vacation of Saldamando and
on one occasion was involved in a personnel problem. I find that the decision
involving Gipson was made by Saldamando and not by Dillon, and without effective
recommendation by the latter. The preponderance of the credible evidence does
not support a finding that Dillon made an effective recommendation in this or in
other areas. And, assuming that he did in the case of Gipson, this was one isolated
incident over a period of 3 years, 5 months before Dillon's termination, carried out
by a man classified by Harvey as a general machinist and paid as such. In sum, he
handled administrative details in the absence of Saldamando. These were routine
matters arising infrequently and did not involve the exercise of independent judgment.
Nor is there any evidence that Dillon participated in meetings of supervisory per-
sonnel or attended policy making conferences. Indeed, there is no evidence that
Foreman Saldamando participated in matters of this nature.
The Court of Appeals for the Ninth Circuit treated with this problem in a similar
case. N.L.R.B. v. Parma Water Lifter Co., 211 F. 2d 258 (C.A. 9), cert. denied
348 U.S. 829. An employee in a lathe shop testified that it was his "understanding"
that he was in charge in the absence of the plant's production manager and some-
times assigned work to the other men in the shop. He did not hire, fire, or recommend
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such action; did not consider himself a supervisor; and neither did his coworkers.
The court there stated:
[His] status was about the same as that of the employee Tancrell in the case
of N.L.R.B. v. Whitin Machine Works, 1 Cir., 204 F. 2d 883, and involved less
responsibility than that held by the "room boss" or "leadman," Petti, in the case
of Precision Fabricators v. N.L.R.B., 2 Cir., 204 F. 2d 567, both of whom
were held not to be "supervisors" within the meaning of Sec. 2(11) of the Act.
He did the work of an ordinary production employee and had no authority
to direct work when Manager Rose was present. Cf. N.L.R.B. v. Quincy Steel
Casting Co., 1 Cir., 200 F. 2d 293, 296. And the exercise of the limited authority
he had in Rose's absence appears to have been of a "merely routine or clerical
nature," not requiring the "use of independent judgment." Sec. 2(11) of the
Act; cf. N.L.R.B. v. Whitin Machine Works, supra, 204 F. 2d at page 886;
Precision Fabricators v. N.L.R.B., supra. We think the Board did not err in
finding that Morris was not a "supervisor" within the meaning of Sec. 2(11)
of the Act.
A decision by the Court of Appeals for the Fourth Circuit involving this very
industry is much in point on this issue. N.L.R.B. v. Washington Aluminum Com-
pany, Inc., 291 F. 2d 869 (C.A. 4), enforcement denied on other grounds. There,
the employer was engaged in the fabrication of aluminum products as was Harvey.
The court there considered the status of one "Caron, the shop leader" of the machine
shop which included nine men, including a foreman and this shop leader. The court
stated that "Caron's duties as `shop leader' were to assign the other workmen to the
machines, to assist them and help plan their work schedules. He was not empowered
to hire or fire. to grant permission for absence from work, or to allow a man time
away from his work in the plant. These functions were vested wholly in Machine
Shop Foreman Jarvis and in higher management." It may be noted that the dissent
in this decision treated this shop leader as no different than a rank-and-file em-
ployee.
The Court of Appeals for the First Circuit has held similarly with respect to one
who was learning the duties of a foreman "and occasionally but not always had acted
as foreman in the regular foreman's absence." N.L.R.B. v. Swift & Company,
d/bla New England Processing Unit, 292 F. 2d 561 (C.A. 1). The court went on
to approve language in the Board decision that:
we believe that this time is now devoted almost entirely to his clerical
duties, and that any supervision he might perform is infrequent and sporadic,
and is insufficient to bring him within the statutory definition of a supervisor.
It is also evident that Cogan's clerical duties are insufficient to clothe him with
the status of a confidential or managerial employee. We shall include him in
the unit.
The Court of Appeals for the District of Columbia Circuit pointed out in Inter-
national Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers
of America, AFL-CIO (Gulf Bottlers, Inc.) v. N.L.R.B., 298 F. 2d 297, that:
It has seemed to us that if a mere employee at some stage may become a super-
visor, the transition becomes an actuality when he is found to possess real power
"in the interest of the employer" to take meaningful action with respect to the
statutory tests. It is not alone that he may hire or fire or lay off or discipline.
He must do so in the interest of the employer. He must then, when acting,
become in effect a part of management, not simply a lead man or straw boss.
The entire work force from the president down to the messenger boy in one
sense acts in the interest of the employer, as Congress well knew. Surely it
contemplated some other test than is afforded by a sheerly literal reading of sec-
tion 2(11). [Emphasis supplied.]
In Matthews Drivurself Service, Inc., 133 NLRB 1513, the Board pointed out
that occasional advice and recommendations from leadmen do not constitute them
supervisors. See also Ballentine Packing Company, Inc., 132 NLRB 923 and
Northern Virginia Steel Corporation, 132 NLRB 7114. As the Board noted in
V.I.P. Radio, Inc., 128 NLRB 113, 115, the fact that persons "exercise supervisory
authority irregularly and sporadically is not alone sufficient to constitute them super-
visors." In Gastonia Weaving Company, 91 NLRB 899, the Board stated that a
machine shop leadman who received a higher hourly rate than other employees and
was referred to by other employees as "shop foreman" nevertheless was not a super-
visor because his direction of other employees in the machine shop "does not re-
quire the use of independent judgment but consists essentially of transmitting instruc-
tions which he receives from the foreman or superintendent." And, as the Board
HARVEY ALUMINUM (INCORPORATED), ETC. 209
pointed out, in Webb Fuel Company, 135 NLRB 309, the assignment of tasks of "a
routine clerical matter" and "an isolated act of discipline" did not make a supervisor
out of a rank-and-file employee.
In view of all the foregoing considerations , I find that Ballard Dillon was not a
supervisor within the meaning of Section 2(11) of the Act, but was rather an em-
ployee within the meaning of Section 2(3) of the Act. N.L.R.B. v. R. H. Osbrink,
et al., d/b/a R. H. Osbrink Manufacturing Company, 218 F. 2d 341 (C.A. 9), cert.
denied 349 U.S. 928. The evidence previously set forth discloses, and I find, that
Respondent Harvey discriminated with respect to the conditions of Dillon's employ-
ment on and after November 26, 1960, and constructively discharged him on
December 9, 1960, because of his union activities and sympathies and because Harvey
believed he was so engaged, thereby discouraging membership in a labor organiza-
tion and engaging in unfair labor practices within the meaning of Section 8(a)(3)
of the Act. I further find that by such conduct Respondent Harvey has engaged
in unfair labor practices within the meaning of Section 8(a) (1) of the Act. N.L.R.B.
v. Saxe-Glassman Shoe Corporation, 201 F. 2d 238 (C.A. 1); N.L.R.B. v. Ra-Rich
Mfg. Corp., 276 F. 2d 451 (C.A. 2); N.L.R.B. v. Chicago Apparatus Company, 116
F. 2d 753 (C.A. 7); Art Metalcraft Planting Co., inc.,'133 NLRB 706; Rubin Brown,
an Individual, d/b/a Ace Wholesale Electrical Supply Co.; et al., 133 NLRB 480;
Minnesota Manufacturing Company, Inc., 132 NLRB 1398; and Berg-Airlectro
Products Company, 131 NLRB 982.
G. The discharge of Lewis Rea
The complaint alleges that Respondent Harvey laid off Lewis D. Rea, a drawbench
helper in the finishing department, on December 30, 1960, because of his union
activities, after almost 9 months of employment. Harvey contends in its brief that it
terminated Rea because he was an unsatisfactory employee and, specifically, be-
cause of "his own poor employee record." While witnesses for Harvey refer to this
as a layoff, it is clear, and I find, that he was discharged allegedly for cause. Indeed,
Director of Industrial Relations Hinz, in an affidavit to the Board, stated that the
record of Rea was marked "no rehire" because he was "to slow, and would not fol-
low safety precautions."
To an extent, the case of Rea parallels that of Dillon discussed above. On
November 23, 1960, the Union sent a wire to Hinz wherein it listed its proposed ob-
servers at the election; this list included Rea, Dillon, and others. Rea attended and
participated in the preelection conference on November 25, as did Dillon. Rea
went beyond in that he actually served at the November 28 election as an observer
for the Union. As a result of the preelection conference held on November 25, Rea
was late in reporting for work. His foreman, Guy DeWitt, asked why he was late
and Rea explained that he had been at the conference as an observer for the Union.
DeWitt asked, "What's that going to prove?" Rea, in reply, asked that DeWitt
"respect what I believe in." The General Counsel contends that Rea's foreman,
DeWitt, began "riding" Rea during the month of December by keeping him under
constant scrutiny and, on one occasion, threatened to discharge him if he did not
"wipe that grin off your face." DeWitt conceded that Rea's constant grin or smile
irritated him and that he so addressed Rea.
Rea testified that Foreman DeWitt told him on December 30 that Harvey was
letting him go for "lack of work." DeWitt was not questioned concerning this con-
versation, but he, too, claimed the decision was predicated upon lack of work and
that there was no work for Rea to do on the drawbenches.
Harvey has introduced evidence to the effect that Rea was terminated because
of "gold-bricking" and for constant failure to observe safety rules by not wearing
goggles and incurring frequent injuries. The General Counsel concedes much of this
evidence, but contends that Respondent allegedly seized upon Rea's long-tolerated
shortcomings in order to eliminate a union sympathizer who otherwise would not
have been terminated. Stated otherwise, Rea was less than an entirely satisfactory
employee. Specifically, he disappeared at times to work on personal projects and had
a high accident record despite at least two warnings from Foreman DeWitt. Indeed,
DeWitt testified that it was his practice to warn an employee twice and to terminate
the man for the third offense and that Rea had received prior warnings on the first
of November and in the second week of December. Rea's record discloses a num-
ber of injuries and, specifically, that he injured his eye on November 30 and again
December 10, with the case closed on December 12. His only subsequent injury
was a splinter on Deecmber 27. While this case is closer than that of Dillon, for
the various reasons appearing below, a preponderance of the evidence supports the
contention of the General Counsel that Harvey discriminated against Rea.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Witnesses for Harvey , including Foreman DeWitt , Plant Superintendent Sam
Tuzzolino, and Director of Industrial Relations Hinz, testified concerning an abortive
attempt to terminate Rea. This date was placed by Hinz as Friday, November 25,
1960, 2 days after Rea was identified as a union observer. According to DeWitt,
there was a lack of work and Tuzzolino told him to lay off six people. Six helpers
including Rea were chosen for layoff. All except Rea were low in seniority and Rea
was chosen out of seniority "Because of his work and his safety record." DeWitt
contended that he did not then know Rea was a union observer or interested in the
Union; it is clear that Hinz did
Tuzzolino and Hinz agree that Hinz told Tuzzolino to remove Rea's name from the
list. According to Hinz, he noted the list on Friday, November 25, and immediately
notified Tuzzolino not to terminate Rea "at that particular time . to try to
salvage the boy . . . if he were terminated I knew automatically that the union
would scream discrimination." With reluctance, Tuzzolino agreed to abide by this
decision but stated that he disliked releasing a good worker and retaining Rea.
No evidence of the precise fate of the other five is disclosed, although DeWitt testi-
fied that he laid off two and three were voluntary terminations.36
(2) Foreman DeWitt testified that he made up another layoff list at the end of
December after General Foreman Frank Tuzzolino instructed him to prepare a lay-
off list of eight people because of "a lack of work at that particular time in the one
[finishing] department." This department then had between 15 and 20 helpers.
DeWitt prepared a list of eight names, including only those helpers with the least
seniority in the department. Rea was eighth on the list; that is, to reach Rea, seven
helpers with less seniority were selected and Rea was the eighth. Thus, unlike the
earlier list, Rea was reached by seniority and the list stopped at that point. DeWitt
turned in the list to Frank Tuzzolino who transmitted it to Hinz with the comment,
"This is it. I don't care what you say. I don't want him [Rea] around." On the
next day, December 30, Rea was terminated.
(3) One would conclude from the foregoing, at first blush, that Rea was one of a
group terminated for lack of work, consistent with seniority, and that he, in particular,
was an unsatisfactory employee. Indeed, Hinz testified that, "we laid off the most
incapable or poorest person during the layoff." Hinz also testified that "we were lay-
ing off employees in his department, and he was one of the least desirable employees,
due to his past work record and attitude and aptitude in the department, and
safety-wise , so he was included in the overall layoff in the department ." [ Emphasis
supplied.]
In a statement to the Board , Hinz deposed that "Rea was terminated for `Job
Complete' the same as 13 other employees in the Finish Department in the month
of December, lacking in seniority." But, in contrast, Hinz testified herein that
"8 to 12 employees with less seniority had been transferred to other departments
when work got slow in that department . They had been transferred to other de-
partments because they were outstanding workers, they had good work records, and
the company felt definitely they were [worth] salvaging and they would like to have
them remain on the company payroll." Further consideration is given below to the
precise meaning of what Harvey meant by "transferred to other departments."
[Emphasis supplied.]
(4) Hinz was asked why he used the notation "Job Complete" if, in fact, Rea
was terminated because he was an unsatisfactory employee. He replied that this
was done not to "hurt the employee on a future job." He also stated, "This hap-
pens quite often when we are having a layoff . . . so we will not hurt the employee on
a future job . . Rather than hurt the boy, have a mark on his record for the rest
of his work history, because other companies , of course, do check references, we
do this, and it is quite often the procedure in the company . . . we would protect
him in the future ...."
BO There is evidence that Rea was not as unsatisfactory a workman as Harvey alleges.
His leadman , Dale Butler , testified for Harvey that Rea "was a very good worker," but
that he would absent himself too long from his duties , more so than his fellow workers.
Gerken, Rea 's operator, similarly testified that Rea was initially a "pretty good " worker
but that his work deteriorated subsequent to the election and after the attitude of Fore-
man DeWitt toward Rea changed in that be watched him closely and criticized his work
He testified that, in his observation , DeWitt's criticisms of Rea were largely unjustified
Be that as it may, I am convinced that the contention of the General Counsel herein is
established independently of this factor when consideration is given to the circumstances
under which Harvey eliminated Rea from its employ The inference is warranted that
Harvey ascribed little Importance to Rea's deficiencies prior to his serving as a union
observer at the election , but its attitude changed rapidly thereafter , as will be disclosed
by the specious nature of its reasons for his termination
HARVEY ALUMINUM (INCORPORATED), ETC. 211
As is readily apparent, however, this was not a statement to another employer
but rather a statement to a Federal agency which was investigating unfair labor
practice charges involving Hinz and Rea, inter alia, and Hinz well knew this. More-
over, in view of the history of prior unfair labor practice proceedings involving this
employer, as noted above, it can hardly be contended that Hinz was a novice in this
field and was not aware of what he was stating, its purpose, and the implications
thereof.
(5) The record discloses that Rea was rehired by Harvey in May 1961 and was
discharged 2 weeks later. The circumstances of his rehire are not disclosed. Sam
Tuzzolino testified that he was informed by Hinz about the matter. While it is
readily apparent that an unfair labor practice charge involving Rea had been filed,
there is no explanation concerning the recall. For the thrust of Harvey's defense
is that Rea was unsatisfactory and was an utter menace to himself, if not to his
coworkers, because he was injury prone as a result of not following prescribed
safety procedures. Indeed, Sam Tuzzolino testified that he "thought" that he might
be able to make a satisfactory employee out of Rea on a new job to which he was
then assigned.
(6) As indicated, the case of Rea is not as clear cut as that of Dillon described
above, but any doubt as to the discriminatory motivation of Harvey herein is dis-
pelled when consideration is given to the "razzle-dazzle" method by which Rea was
ousted from the employ of Harvey, ostensibly as part of a reduction in force based
upon seniority.
One must start with the premise that Harvey assuredly is not operating an elee-
mosynary institution for the benefit of incompetent workmen although, as noted,
the contrary might well be contended with respect to its retention of employees who
steal, pilfer, and sell company property. If an employee is not satisfactory and
has been warned several times, as Rea allegedly had been, an employer would surely
discharge him out of hand and properly so. This indeed was done in the case of
Gipson.
Now to consider precisely what Harvey did on December 30, 1960. Hinz deposed
to the Board that Rea "was terminated on a seniority basis." And, as noted, Rea
was eighth lowest in seniority of the 15 to 20 helpers in this finishing department.
This meant that the eight lowest in seniority were selected, the list culminating with
Rea. Foreman DeWitt of this department testified that there was a lack of work
and General Foreman Frank Tuzzolino told him to lay off "eight people"; he
promptly prepared this list of eight including Rea. As Hinz put it, "we were laying
off at the time." Plant Superintendent Sam Tuzzolino displayed some vagueness,
testifying with respect to the December 30 list, that some were to be terminated
and some not and that "There might have been a couple" to be terminated.
The conclusion is inescapable that the transfer of the other seven was a paper
transaction because they were promptly returned after I workingday at the most
to the finishing department. December 30 was a Friday. Rea was assigned at the
time as a helper to Clayton Gerken, a drawbench operator, and Gerken has had a
helper at all times material herein. It is clear that it is not practical to operate a
drawbench without a helper and four such benches were operating as of December
30. The department was working an 8-hour day on a 6-day week including Sat-
urdays. According to Gerken, Saturday, December 31, was a 5-hour day for him,
and the three other drawbenches also worked. According to Earl Day, currently a
drawbench operator, he put in an 8-hour day on this Saturday. The department
operated with two shifts.
Gerken testified that two drawbench helpers were transferred to the inspection
department for 3 days and returned on Tuesday or Wednesday, January 3 or 4. The
plant was closed, it is clear, on January 1 and 2 because of the holiday, according
to Chief Industrial Engineer Frazer Bonnel. This means that the transferees were
in the inspection department only for December 31; it is not clear whether or not
that department worked that day.
The testimony of Day is in substantial accord with that of Gerken. His helper
was one, Griffiths, who had less seniority than Rea. This helper was transferred
to the inspection department at the same time that Rea was laid off and returned
after 3 or 4 days, manifestly 1 workday later, at the most, viz, December 31. It
is noteworthy that Day was given another helper within 30 minutes after Griffiths
was transferred. While helpers had been previously reassigned, never before had
an operator's helper been transferred to another department and then sent back
only after several days.
Foreman DeWitt confirmed the foregoing. While testifying that work increased
in the finishing department during the latter part of January, he conceded that the
672010-03-vol. 139-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seven men who had been transferred to another department on the same day that
Rea was terminated "came back" to their original department "Around the 2nd or
3rd of January." This, of course, was no later than the first working day after the
intervening holiday weekend. DeWitt conceded that Rea was the only one in the
group of eight who was permanently affected. Even Plant Superintendent Sam Tuz-
zolino substantially confirmed this. He originally testified that the transfer lasted
until "the department got busy again. It might have been a week, it might be two
weeks." He then admitted that it was "closer to a week.... Approximately ... I
can be off a couple of days."
I find, in view of the foregoing, that Harvey purported to reduce its complement
of helpers in the finishing department by eight; that one of the eight, Rea, was ter-
minated; that the other seven were transferred to another department directly before
the New Year's holiday weekend; and that on the next working day thereafter, all
seven men were returned to their original department. What is also significant here
is that these eight were chosen by seniority and that of the eight, Rea, the last
reached, was the only one terminated.
(7) Adding to the foregoing is the fact that Harvey's contention that business
was off, thus resulting in the reduction in force, does not stand up. It contends that
it resumed the hiring of personnel late in January, but the record shows that it was
sooner.
Hinz testified that there was new hiring "about the middle of January." This is
consistent with testimony of Drawbench Operator Day that five or six men were
hired in the department that month. Indeed, as Gerken uncontrovertedly testified,
five new helpers were hired about 1 week after Rea was released and one was as-
signed to the drawbench. Moreover, DeWitt admitted that helpers are interchange-
able in the department and are transferred from job to job. But this is only part
of the story. In addition to this, it is undisputed, as Gerken testified, that "A couple
of weeks after Rea had been laid of" Harvey started its two shifts on a 10-hour day
and this applied to all four drawbenches. Not long thereafter, this was abandoned
in favor of a three-shift day of 8 hours a shift. Operator Day also received a new
helper about 2 weeks after Rea was released, and claimed that January work was
as heavy as that in December. This third shift, it may be noted, had not been
utilized for some 6 to 9 months.
Chief Industrial Engineer Fraser Bonnel testified that January is normally a slack
month, that there is no upturn in business until around February 1, and that there
Was a slight upturn "the last week and a half possibly in January" throughout the
plant. This was supported by statistics Harvey offered in evidence. If this is so,
it serves only to demonstrate that the rapid transfer on December 30 of seven
helpers from the finishing department to another department and their prompt
return on the first working day after an intervening holiday weekend was not
warranted by business conditions.
(8) Still other evidence demonstrates that this "shuffle" of helpers was a paper
transaction. Foreman DeWitt testified that "The other departments were loaded
with work and needed help. I transferred seven people, seven helpers to another
department." Rea, however, was released. But Harvey's own exhibit totals the
personnel in the aluminum extrusion finishing department and reveals that there
were 63 employees as of December 29; 62 as of January 3; and 61 as of January 10.
Bonnel testified that the variations between these days "might have been" not over
one or two in either direction. I find therefore that the testimony of Hinz that
"there was a total reduction . . . in the [finishing] department" is contrary to the
fact, insofar as the reduction may have exceeded one or two, if that.
I find that the evidence preponderates in favor of the position of the General
Counsel; that the reasons assigned for the termination of Rea were a pretext to
cover illegal motivation; and that Respondent Harvey discriminatonly discharged
Lewis D. Rea on December 30, 1960, because of his union sympathies, thereby en-
gaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
I further find that by such conduct Respondent Harvey has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act. N.L.R.B. v. The Bendix
Corp. 299 F. 2d 308 (C.A. 6); N.L.R.B. v. R. H. Osbrink, et at., d/b/a R. H.
Osbrink Manufacturing Company, 218 F. 2d 341 (C.A. 9), cert. denied 349 U.S.
928; N.L.R.B. v. West Coast Casket Company, Inc., 205 F. 2d 902 (C.A. 9); Texas
Bolt Company, 135 NLRB 1188; and Sachs & Sons, etc., 135 NLRB 1199.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in con-
nection with their operations set forth in section 1, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
HARVEY ALUMINUM (INCORPORATED), ETC . 213
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices, I shall
recommend that they cease and desist therefrom and take certain affirmative action
designed,to effectuate the policies of the Act.
It has been found that Respondents Harvey and General have discriminated with
respect to the hire and tenure of employment of Ballard Dillon and Lewis D. Rea,
I shall therefore recommend that Harvey and General offer them immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to seniority or other rights and privileges. See The Chase National Bank
of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. I shall
further recommend that Respondents Harvey and General make them whole for any
loss of pay suffered by reason of the discrimination against them. Said loss of pay
based upon earnings, including lost overtime in the case of Dillon, which each nor-
mally would have earned from the date of the discrimination to the date of the offer
of reinstatement, less net earnings, shall be computed in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289. See N.L.R.B. v. Seven-Up
Bottling Company of Miami, Inc., 344 U.S. 344.
The unlawful labor espionage engaged in by all Respondents discloses a clear-cut
purpose to thwart the most basic guarantees of Section 7 of the Act. This plus the
pretextual discharges carried out by Harvey in this and other cases warrants the
conclusion that there is a strong likelihood that the right of Harvey employees to
self-organization and to form, join, or assist labor organizations may again be im-
pinged upon in the future. Indeed, Harvey proposed the espionage scheme discussed
herein to Wallace only 2 weeks after Harvey ceased the unlawful photography of
the distribution of union leaflets to employees, as found in 131 NLRB 901.
As for Wallace, it initially carried out this espionage for Harvey in one State
and then readily expanded the scheme to another State. The inference is warranted
that it may do so again elsewhere. I shall therefore recommend that Respondents
Harvey and General be ordered to cease and desist from infringing in any manner
upon the rights guaranteed to employees under Section 7 of the Act and that Respond-
ent Wallace be ordered to cease and desist from engaging in like or related conduct
involving any employer.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. Harvey Aluminum (Incorporated) and General Engineering, Inc., constitute
a single employer and are employers within the meaning of Section 2(2) of the Act.
3. Harvey Aluminum Company of Oregon or Harvey Aluminum Corporation of
Oregon is a successor to General Engineering, Inc 37
4. Wallace Detective and Security Agency is an employer within the meaning of
Section 2(2) of the Act.
5. Respondents Harvey, General, and Wallace have engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act by engaging in labor
espionage.
6. Respondents Harvey and General have engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act by discriminating with respect
to the employment of Ballard Dillon and Lewis D. Rea.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the Respondents:
A. Harvey Aluminum (Incorporated) and General Engineering, Inc., Torrance,
California, and The Dalles, Oregon, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
>n As noted, it is not clear which is the precise title. I have therefore provided that
space be left in the appropriate Appendix for insertion of the correct name.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
( a) Directly or indirectly engaging in any manner of espionage or surveillance, or
engaging the services of Wallace Detective and Security Agency, or any other
agency or individual , for espionage or surveillance , for the purpose of ascertaining
the membership , views, or activity of any of their employees in or on behalf of any
labor organization.
(b) Discouraging membership in United Steelworkers of America , AFL-CIO, or
in any labor organization of their employees , by discriminating in regard to hire
or tenure of employment , or any term or condition thereof, except to the extent per-
mitted under Section 8 (a) (3) of the Act.
(c) In any other manner interfering with, restraining or coercing employees in
the exercise of their right to self-organization , to form, join , or assist the above-named
or any other labor organization , to bargain collectively through representatives of
their own choosing , to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and to refrain from any or all such
activities , except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to Ballard Dillon and Lewis D. Rea immediate and full reinstatement to
their former or substantially equivalent positions , without prejudice to seniority
or other rights and privileges , and make them whole for any loss of earnings suf-
fered by reason of the discrimination against them in the manner set forth in the sec-
tion above entitled "The Remedy."
(b) Preserve and , upon request , make available to the Board or its agents,
for examination and copying , all payroll records, social security payment records,
timecards , personnel records and reports, and all other records necessary to deter-
mine the amount of backpay due under the terms of this Recommended Order.
(c) Post at its plants at The Dalles, Oregon , and Torrance , California, copies of
the attached notices marked "Appendix A" and "Appendix B." 38 Copies of said no-
tice, to be furnished by the Regional Director for the Nineteenth Region shall, after
being signed by representatives of the respectively designated Respondents herein,
be posted by Respondents Harvey and General immediately upon receipt thereof,
and be maintained for a period of 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondents Harvey and General to ensure that said
notices are not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for the Nineteenth Region, in writing, within
20 days from the date of receipt of this Intermediate Report and Recommended
Order, what steps they have taken to comply herewith.39
B. Wallace Detective and Security Agency, Portland , Oregon , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
( a) Engaging in espionage or surveillance in behalf of Respondents Harvey or
General , or any other employer, for the purpose of ascertaining the membership,
views, or activity of employees in behalf of United Steelworkers of America, ALF-
CIO, or any other labor organization.
(b) In any like or related manner interfering with the union activities of em-
ployees of the above -named or any other employer.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act.
(a) Post at its offices at Portland , Oregon, copies of the atttached notice marked
"Appendix B." 40 Copies of said notice, to be furnished by the Regional Director for
the Nineteenth Region, shall , after being signed by Respondent Wallace, be posted
by said Respondent immediately upon receipt thereof , and be maintained for a
period of 60 consecutive days thereafter , in conspicuous places, including all places
Is In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice . In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
39 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days from
the date of this Order , what steps Respondents have taken to comply herewith."
10 See footnote 38, supra
HARVEY ALUMINUM ( INCORPORATED ) , ETC. 215
where notices to employees are customarily posted . Reasonable steps shall be taken
by Wallace to ensure that said notices are not altered , defaced, or covered by any
other material.
(b) Mail to said Regional Director signed copies of Appendix B for posting by
Respondents Harvey and General at their plants at The Dalles, Oregon and Tor-
rance, California , as provided above. Copies of said notice to be furnished by said
Regional Director , shall, after signature by Respondent Wallace, be forthwith re-
turned to the Regional Director for disposition by him.
(c) Notify the Regional Director for the Nineteenth Region, in writing within
20 days from the date of receipt of this Intermediate Report and Recommended Or-
der, what steps it has taken to comply herewith.4i
u In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps Respondents have taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , we hereby notify our employees that:
WE WILL NOT directly or indirectly engage in any manner of espionage or
surveillance , or engage the services of Wallance A. Ummel d /b/a Wallace Detec-
tive and Security Agency, or any other agency or individual for espionage or
surveillance , for the purpose of ascertaining the membership , views, or activity
of any or our employees in behalf of any labor organization.
WE WILL NOT discourage membership in or activity in behalf of United Steel-
workers of America, AFL-CIO, or any other labor organization of our em-
ployees, by discriminating in any manner in regard to hire or tenure of employ-
ment, or any term or condition thereof, except to the extent permitted under
Section 8(a) (3) of the Act.
WE WILL offer Ballard Dillon and Lewis D. Rea immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice
to seniority or other rights and privileges , and we will make them whole for any
loss of pay suffered as a result of our discrimination against them.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization , to form, join, or
assist United Steelworkers of America , AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , and to refrain from any or all such activities , except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment , as authorized in
Section 8(a) (3) of the National Labor Relations Act.
All our employees are free to become or remain , or refrain from becoming or re-
maining, members of the above-named or any other labor organization.
HARVEY ALUMINUM (INCORPORATED),
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
GENERAL ENGINEERING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
------------------------------
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Offices, 327
Logan Building, 500 Union Street, Seattle, Washington , Telephone Number, Mutual
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2-3300, Extension 553, or 849 South Broadway , Los Angeles , California , Telephone
Number , Richmond 9-4711, Extension 1031 , as the case may be , if they have any
question concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify all employees that:
WE WILL NOT engage in espionage or surveillance in behalf of Harvey
Aluminum (Incorporated ) or General Engineering , Inc., or any other employer,
for the purpose of ascertaining the membership , views, or activity of employees
in or on behalf of United Steelworkers of America , AFL-CIO, or any other
labor organization.
WE WILL NOT in any like or related manner interfere with the union activities
of the employees of the above-named or any other employer.
WALLACE A. UMMEL D/B/A WALLACE DETECTIVE
AND SECURITY AGENCY,
Employer.
Dated----- --------------- By (signed)---------------------------------
(WALLACH A . UMMIDL)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Offices, 327
Logan Building, 500 Union Street , Seattle, Washington, Telephone Number, Mutual
2-3300, Extension 553, or 849 South Broadway, Los Angeles , California , Telephone
Number, Richmond 9-4711, Extension 1031 , as the case may be, if they have any
question concerning this notice or compliance with its provisions.
Great Lakes District, Seafarers ' International Union of North
America, AFL-CIO , and Seafarers' International Union of
North America, AFL-CIO and Upper Lakes Shipping, Ltd.,
as agent for Island Shipping , Ltd. and Lake Superior and
Ishpeming Railroad Company. Case No. 18-CC-108. October
18, 1962
DECISION AND ORDER
On February 1, 1962, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report, attached hereto, in the above-entitled pro-
ceeding, finding that the General Counsel had failed to establish that
it would effectuate the purposes of the Act for the Board to exercise
jurisdiction in this case, and recommended that the complaint be dis-
missed in its entirety. On February 12, 1962, the General Counsel
filed with the Board a motion to remand the proceeding to the Trial
Examiner for further hearing and reopen the record to receive in
evidence additional commerce facts. The Respondents filed opposition
thereto. On March 20, 1962, the Board granted the motion, reopened
the record, directed that a supplemental hearing be held before the
aforementioned Trial Examiner for the purpose of receiving addi-
tional commerce information, and further directed that following the
139 NLRB No. 18.