Harvey Aluminum Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1963

142 N.L.R.B. 1041 (N.L.R.B. 1963)

HARVEY ALUMINUM (INCORPORATED) 1041
APPENDIX
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 our employees that.
WE WILL NOT interrogate our employees about their union activities in viola-
tion of the law.
WE WILL NOT threaten our employees with reprisals because of their union
activities.
WE WILL NOT dominate or interfere with the administration of Coca-Cola
Employees Association of Indianapolis, or any other labor organization, or
contribute financial or other support thereto.
WE HEREBY WITHDRAW all recognition from and completely disestablish
Coca-Cola Employees Association of Indianapolis, as representative of any of
our employees for the purpose of dealing concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions of em-
ployment, and will not recognize it or any successor thereto for any of the
foregoing purposes.
WE WILL NOT discourage membership in Local 135, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, by discharging or refusing to reinstate any of
our employees, or in any manner discriminating in regard to their hire or
tenure of employment.
WE WILL offer to Everett Dorman immediate and full reinstatement to his
former or a substantially equivalent position and make him whole for loss
of pay suffered as a result of the discrimination against him.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of the right of self-organization, to form labor organ-
izations , to join or assist Local 135, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other labor
organization, to bargain collectively through representatives of their own
choosing and to engage in other concerted activities for their mutual aid or
protection, or to refrain from any or all such activities.
COCA-COLA BOTTLING COMPANY-INDIANAPOLIS, INDIANA-INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 614
ISTA Center, 150 West Market Street, Indianapolis 4, Indiana, 46204, Telephone
No. Melrose 3-8921, if they have any question concerning this notice or com-
pliance with its provisions.
Harvey Aluminum (Incorporated ) and Frank Vidales . Case No.
21-CA-4696. June 10, 1963
DECISION AND ORDER
On January 8, 1963, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action,'as set forth in the attached Intermediate Re-
142 NLRB No. 113.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port. Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the Re-
spondent's exceptions and brief, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner 2
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order.'
I Respondent moves the Board to reopen the record so that it may have the opportunity
of refuting matters officially noticed by the Trial Examiner . Such matters pertained to
prior Board decisions involving either Respondent or General Engineering we find,
however , that the Trial Examiner's unfair labor practice conclusions are fully supported
by the record , wholly apart from matters officially noticed by him. Therefore , inasmuch
as we need not concern ourselves with these matters, Respondent's motion is denied.
Respondent further moves the Board for an order to reopen the record so that it may
have the opportunity of refuting the Trial Examiner's finding that it discharged John
Torrico in order to camouflage the discriminatory discharge of Frank Vidales. In support
of this motion , Respondent Harvey contends that such finding is outside the scope of the
complaint which alleged that Torrico was discharged because of his membership in or
activities on behalf of a labor organization . For the reasons set forth by the Trial
Examiner in his Intermediate Report, we find no merit in this contention Accordingly,
we deny the motion.
'Respondent also moves the Board for an order striking the testimony of Vidales and
Torrico. In support of this motion , Respondent contends the under the Board 's Rules
and Regulations , Section 102 118 , authorization cards admittedly signed by Vidales and
Torrico should have been produced as requested ; and that the failure to so produce re-
quires that their testimony be stricken We agree with the Trial Examiner that these
contentions have no merit because these cards do not constitute statements within the
meaning of Section 102 . 118 Accordingly , we deny the motion. Respondent also moves
the Board , in the event the aforesaid motion is denied , to remand the case for further
proceedings and direct the Trial Examiner ( a) to produce the authorization cards; and
(b) to reinstate the subpena ad testificandum directed to Mark Fox , a Regional Board
representative . In alternate motion ( a), Respondent contends that the cards should have
been produced under Section 102 118 , supra In alternate motion ( b), Respondent con-
tends that Fox's testimony is material; and that a subpena can only be revoked for
failure to meet certain statutory requirements , all of which were met herein . For the
reasons stated by the Trial Examiner in his Intermediate Report, we find that these
contentions have no merit Accordingly , we deny the alternate motions
2 For the reasons set forth in the dissenting opinion in Isis Plumbing & Heating Co.,
138 NLRB 716 , Member Rodgers would not award interest on backpay.
3 The notice is hereby amended so that the note will read :
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 and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
HARVEY ALUMINUM ( INCORPORATED) 1043
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed February 19 , 1962, and duly served , the General Counsel of
the National Labor Relations Board caused a complaint and notice of hearing to
be issued and served upon Harvey Aluminum (Incorporated ), designated as Re-
spondent in this report . The complaint was issued April 2, 1962; therein Respon-
dent was charged with unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended, 61
Stat . 136, 73 Stat . 519. Thereafter , through answer duly filed, Respondent conceded
the complaint's jurisdictional allegations and certain factual allegations ; commission
of any unfair labor practice was, however , denied.
Pursuant to notice , a hearing with respect to the issues was held at Los Angeles,
California , on various dates between April 30 and May 15, 1962 , before Trial Exam-
iner Maurice M. Miller. The General Counsel was represented by counsel; Re-
spondent was represented by its director of Industrial relations and counsel. When
James Carbray , representative of the United Steelworkers of America , AFL-CIO,
verbally presented a motion to intervene , his motion , despite Respondent's objection,
was granted . Respondent 's objection was partially based upon Carbray's failure to
file a written motion with the Regional Director prior to the hearing ; this objection
was overruled , since the Board 's Rules and Regulations , Section 102 . 29, specifically
permit oral motions for intervention , made at the hearing , together with a statement
of the grounds upon which any person desiring intervention claims an interest.
Respondent objected further that any Trial Examiner 's decision to grant such a
motion, when bottomed upon the mover 's oral representations-which may refer
to facts not yet of record , with respect to which no opportunity for cross -examination
has been provided-denies due process of law; these contentions were, likewise,
rejected. Cf . The Pitcairn Company (Pittsburgh Valve & Fittings Division), 52
NLRB 404, 405, in this connection . Prompt decisions with respect to motions pre-
sented during hearings , bottomed upon verbal representations made by moving
counsel , constitute standard practice ; Respondent has not shown prejudice to its
interests thereby.
Respondent 's motion for the exclusion of witnesses was granted , though the com-
plainant , John Torrico , and another worker designated as a discriminatee were per-
mitted to remain . Thereafter , each party was afforded a full opportunity to be
heard, to examine and cross -examine witnesses , and to introduce evidence pertinent
to the issues . When their testimonial presentations were completed , counsel waived
oral argument . Since the hearing's completion , however, both counsel have filed
briefs; these have been fully considered.
Upon the entire testimonial record, documentary and other evidence received,
and my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged in the production and sale of alu-
minum products . Throughout the period with which this case is concerned , Respond-
ent has maintained its principal office and place of business at Torrance, California,
where it likewise maintains an aluminum fabrication plant at which the conduct
herein challenged as violative of the statute occurred . During calendar year 1961,
Respondent , in the course and conduct of its business operations , manufactured, sold,
and distributed , from its Torrance plant, products valued in excess of $100,000, of
which products valued at more than $50,000 were shipped directly to points in
States of the United States other than the State of California.
Upon the complaint 's jurisdictional allegations , which are conceded to be accu-
rate, I find that Respondent is now, and at all material times has been, an employer
within the meaning of Section 2(2) of the Act , engaged in commerce and business
activities which affect commerce within the meaning of Section 2(6) and (7) of the
Act, as amended . With due regard for the jurisdictional standards which the Board
presently applies-see Siemons Mailing Service , 122 NLRB 81 , and related cases-I
find assertion of the Board's jurisdiction in this case warranted and necessary to
effectuate statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
Respondent's answer, duly filed, reflects the denial of the General Counsel's con-
tention that United Steelworkers of America , AFL-CIO, is a labor organization,
712-548-64-vol. 142-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
based upon the firm's claimed lack of knowledge or information sufficient to warrant
a belief with respect to the truth or falsity of that contention . Upon the entire
record-particularly the concession of Respondent 's director of industrial relations
that the Steelworkers and certain other unions sought the right to represent employees
within the firm's Torrance plant at various times, coupled with his concession that
a Board-ordered second election was scheduled and held at the plant upon a Steel-
workers' petition for certification as the representative of such workers-I find United
Steelworkers of America , AFL-CIO, designated as the Union in this report, to be
a labor organization within the meaning of Section 2 ( 5) of the Act, as amended,
which admits Respondent 's employees to membership.
III. UNFAIR LABOR PRACTICES
Facts
A. Background
1. Location
a. The plant
Respondent's plant complex, located at Torrance, California, includes the firm's
headquarters office; within the plant-according to Industrial Relations Director Hinz'
testimony-the firm "manufactures" aluminum, titanium, and zirconium plumbing
products, ammunition, and various aluminum extrusions. (The extrusion process may
be defined as a process whereby aluminum billets are pressed into various shapes
through the use of dies. Record testimony reveals that Respondent's Torrance plant,
through this process, fabricates aluminum products with approximately 3,000 dif-
ferent shapes and sizes.) Physically, the Torrance plant complex contains many
buildings; approximately 2,200 production workers are employed by the firm therein.
Production is maintained in three divisions; these have been designated for the
record as the A.S.M.E. division, the zirconium and titanium division, and the extrusion
division. Sam Tuzzolino serves as superintendent of the last designated division,
with which this case is primarily concerned.
b. The inspection department
Within the Respondent firm's extrusion division, products-subsequent to their
fabrication-are finally routed through a single inspection department, wherein they
are thoroughly inspected, packed, and prepared for shipment. (The purported dis-
criminatees with whom this case is concerned, Frank Vidales and John Torrico, were
employed as inspectors in this department.) The department-which is maintained
within a plant section approximately 330 feet long and 195 feet wide-functions
with three shifts. Its total employee complement normally fluctuates between 135
and 185 workers; these are variously classified. Approximately 85 to 87 persons
work on the day shift. Operations within the department as a whole proceed under
the supervision of Eugene Clark, foreman. Subject to his general oversight, day-shift
functions are performed under the direction of two leadmen. Francis Lawrence
serves as the department's bay 11 day-shift leadman; within that bay most of the
small aluminum aircraft parts which the firm produces are processed, preparatory to
shipment. Kenneth Carnes functions as the department's bay 10 leadman; his crew
is directly responsible for the inspection, packing, and shipment, inter alia, of larger
aluminum extrusions. Most of the day-shift personnel serve under Carnes' supervision.
Some record testimony herein suggests that the work assignments of departmental
personnel , within the department's two bays, may be relatively stable. Considered as
a whole, however, the present record warrants a conclusion , I find, that personnel
shifts within each bay, together with shifts between bays, occur with some fre-
quency. Transfers from one work station to another, when made, may involve
the joint reassignment of journeymen inspectors and less experienced "helper"
personnel.
c. Flow of work
Considerable testimony was proffered for the record with respect to normal work-
flow within Respondent's inspection department . Some of this testimony-particularly
that proffered with respect to specific work tasks performed at various departmental
stations-reveals a lack of consensus ; nevertheless , some generalized conclusions about
the department's normal or routine functions may be drawn. (Certain discrepancies
in proffered testimony with respect to the department 's workflow, coupled with con-
tradictory statements about the tasks routinely performed at various work stations, re-
flect a basic conflict between the General Counsel and Respondent over background
HARVEY ALUMINUM (INCORPORATED) 1045
circumstances which both parties consider significant; however, that conflict will be
discussed and resolved elsewhere in this report.) Normally, large aluminum shapes
fabricated by the firm-with which we are primarily concerned-reach Respondent's
inspection department for their final check before shipment, after they have been
heat-treated in some nearby department, where they may also have been trimmed
to proper size and washed. Specifically, large wing spar panels, which the Respondent
firm fabricates for Lockheed Aircraft Corporation, reach the department in long
racks, with two to four panels carried in each rack. These are transported from other
sections of the plant by overhead cranes or by large trucks known as hysters.
(These trucks have been variously designated, throughout the transcript, as "heisters"
and "hoisters"; wherever such a designation appears, hysters are meant.) Within
the department, these large panels are process inspected, sonic tested, aged, and
prepared for shipment. The sequence followed with respect to the performance of
these departmental functions may vary; procedures consistent with those just noted,
however, would seem to reflect the department's normal routine.
Process inspection normally requires the removal of a panel from its rack with the
help of a gantry crane, followed by its placement upon a large 70- to 80-foot table
generally designated, throughout the present record, as a process inspection table.
There, teams of inspectors perform a variety of tests, using the table surfaces, their
hand tools, and several gauges to check significant panel dimensions, and possible
deviations of the panel from Lockheed's specified configuration. Such deviations
could involve longitudinal bow, lateral bow, twist, and serious variations from perfect
transverse flatness; the latter type of deviation was commonly designated, for the
present record, as "hump and hollow" or transverse bow. (Several witnesses were
requested to provide verbal descriptions of each listed deviation. Despite a revela-
tion that some witnesses for the Respondent firm had divergent conceptions with
respect to longitudinal bow and lateral bow, their testimony considered as a whole
will, in my opinion, provide a comprehensible verbal characterization regarding each
deviation noted. Further, the firm's blueprints of the large wing spar panels, received
as exhibits for the record, visually depict longitudinal, lateral, and transverse bow.
When studied in conjunction with the testimony, these representations will provide
a full picture of the deviatons which process inspection was designed to check. Twist,
though not specifically depicted, would seem to be nothing more than a type of non-
symmetrical bow, or some wavelike panel deviation from specifications which com-
bines more than one type of bow.) Since Lockheed's maximum permissible devia-
tions-designated as tolerances-would be known, inspectors rely upon their hand
tools and various gauges to determine whether such maximum tolerances have been
exceeded in various designated respects.
When particular panels have been tested completely at Respondent's process inspec-
tion table, given numbers used to identify each panel are recorded on a so-called
white ticket, not otherwise designated, attached to the panel's carrier rack. Those
which have satisfactorily passed every test are listed under a ticket designation which
reports them to have been "passed" by inspectors. Panels with some minor devia-
tion from Lockheed's specification-which may exceed a maximum tolerance yet be
deemed capable of correction-will be listed by number within the white ticket's
"hold" column. Shapes deemed seriously defective and beyond correction would be
listed by number within the white ticket's "scrap" column. (For purposes of
identification, each panel carried within a given rack bears a stamped number, des-
ignated as the panel's "etch" number. These are the numbers recorded on the white
rack ticket. Throughout the present record, this number was frequently designated
in the transcript as the panel's "edge" number or "A" number. Wherever such a
designation appears, the panel's "etch" number is meant.) These tickets remain at-
tached to their racks, subject to removal only when all panels carried by the racks
have been packed. Then, the tickets are discarded. While the record does contain
some suggestion that panels listed in the rack ticket's "hold" or "scrap" columns may be
carried to another department forthwith to be reworked or scrapped, testimony
preponderates, I find, that panels found defective are returned to their designated
carrier rack nevertheless; therein. they accompany panels which have "passed"
process inspection, through the balance of the departmental routine. Finally, such
panels are routed to the proper departments for rework or scrapping after the
satisfactory panels on their rack have been packed for shipment.
Whatever normal plant workflow charts may dictate with respect to the proper
treatment of panels scheduled for rework, the record does show that they are dis-
patched to Respondent's rework section with a "green" tag; this tag purportedly de-
scribes the defects found in the panel. When panels have been reworked, their green
tags are removed; notations are made on the white rack ticket, simultaneously, to show
that panels listed in the ticket's "hold" column have been reworked. (Respondent's
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant manager and Torrico both testified, without contradication, that workers assigned
to the rework section use gauges similar to those used in the firm's inspection depart-
ment to check the results of their work before such modified panels are released. I so
find.) Reworked panels then return to the inspection department for further handling
preparatory to shipment.
Within Respondent's inspection department, Lockheed wing spar panels are like-
wise sonic tested. This test-though not fully described for the record-seemingly
calls for the use of sound waves to determine the presence of internal defects.
Panels found satisfactory are listed by number as "released" within the "sonic"
section of the white ticket. Those found defective when subjected to sonic tests may
be listed within the ticket's "hold" or "scrap" column, depending upon the significance
of the defects found and their susceptibility to correction.
These panels may be aged either before or after they are sonic tested. For this
purpose, racks with a complete load of wing spar panels are placed in a furnace;
when filled. the furnace's temperature is raised to some previously fixed level and
maintained there for some specified period, which may be as much as 24 hours.
This procedure-according to credible testimony which has not been disputed-is
,calculated to render the metal harder and less malleable.
When these departmental routines are completed, racks filled with Lockheed wing
spar panels are carried by overhead cranes to another work station where they are
prepared for shipment and packed. Record testimony with respect to the nature and
scope of the work performed at this station was sharply in conflict. (Before their
discharge, Vidales and Torrico were assigned to this station. Their testimony with
respect to the functions which they performed differed significantly from that
proffered by Respondent's witnesses. For present purposes, merely those functions
which were concededly performed at the station will be noted. My determination
with respect to Respondent's contention that normal departmental routine, through-
out the period with which we are concerned, called for the performance of further
functions there will be found in later sections of this report.) Conflicts with respect
to the tasks required of inspectors delegated to perform this part of the department's
work were even reflected in the language which counsel and various witnesses used
when designating the station. Variously, it was designated as the Respondent firm's
"oiler" or "big oiler," the department's "oiling and packing area," or the firm's
"oiler inspection" station; some of Respondent's witnesses called it the "oiler inspec-
tion table," though no table was located there. Respondent's equipment layout dia-
gram for the Torrance plant, however, designated the machinery located at the sta-
tion as an oil "coating" machine. The work tasks which were concededly required
of departmental workers designated to manipulate this machine were described by
Vidales, credibly, as follows:
Well, the overhead crane, which is about [a] four or five and a half-ton
crane, approximately, picks [wing spar panels] up after the processing, brings
them over to us by the oiler. The oiler is a roller type of conveyor with large
rollers about 10, 12 feet long, spaced every two [feet] apart, chain driven, motor
driven with a chain. [The racks] are then put on the floor, and we have portable
overhead cranes. We lift one piece at a time off the rack, put it on the oiler.
We check it for surface defects and blisters, which is a bubble on the face side
of the metal, or large gouges, and grind them out. Then we stamp them
[panels] with a roller type hand stamp that puts a stencil on the entire length of
the metal, which reads out Harvey's name, the specification, the alloy and the
part number. Then we go down to the other end of the machine and start the
rollers, and as they go through what is like a spray method, with air and oil,
that would preserve the metal from corrosion, it sprays it, comes out the other
end. Then it is ready to be packed . . . . We take up one [panel] and turn
the rollers on, slide the other one underneath it, and we will . . . put wooden
[spacers] in between the [panels] to keep them from scratching. We lay a
cardboard underneath the bottom piece of metal, and in turn we put cardboard
on top of it after we get down, and we put two-by-three boards all the way
around it with steel bands about every six [feet], all along the bundle. We
make out a shipping ticket, with the number of pieces, the date, the alloy, the
job number, and my number, and Torrico's number. Then they take it away for
weight, and they stock it in shipping.
Record testimony reveals that workers assigned to this station are also required to
)remove certain pencil marks which may have been placed on the panels during sonic
testing; further they measure the panels for length. According to Vidales, these
work tasks were only performed upon wing spar panels "passed" and "released" by
the department 's process inspectors and sonic testers; panels designated by number
HARVEY ALUMINUM (INCORPORATED) 1047
within the "hold" or "scrap" columns of the white rack tickets were set aside for
later appropriate disposition.
When requested to describe the process by which surface defects on panels were
ground out, Vidales reported that portable electric sanders are used to sand away
small blisters, and to take "roughness" out of gouges. He described packing, cred-
ibly, as a hand operation, performed while the panels are at rest on the rollers;
boards are placed on both sides of each two-panel package, and secured by steel
bands spaced every 6 feet.
Primary records relative to inspection department operations are presumably
maintained through reliance upon a document credibly described as a traveler sheet,
attached to each carrier rack. When each of the various functions routinely per-
formed within the department is completed, responsible inspectors remove the
relevant "ticket" designed to report performance of that function from the traveler
sheet; they record the date and designate the task performed, affix their signatures,
and submit the tickets to the firm's "dispatch" office; further, each inspector keeps
a complete record of his daily performance. Daily reports-designated as fininshing
reports-are prepared and submitted in quadruplicate; these reflect data which cover
the number of the job on which work was performed, the die number of the specific
extrusion handled, the nature of the operation, the type of alloy involved, the num-
ber of pieces processed, their size, and the clock time required for each job handled.
2. Labor relations history
For some years , Respondent-through a commonly owned and controlled firm
known until recently as General Engineering, Inc., an Oregon corporation-has oper-
ated and maintained a fabrication plant for aluminum products at The Dalles,
Oregon , together with its Torrance plant.
Representatives of the General Counsel have requested me to take official notice
of certain prior Board decisions regarding the Respondent firm's responsibility for
specific unfair labor practices found to have been committed at these plants. Due
consideration of the decisions proffered for my notice has convinced me that the
fact of their pronouncement merits notice as a material fact herein . Further, despite
my reservations of judgment with respect to the propriety of General Counsel's re-
quest, which I reported when that request was made, I am presently satisfied that
these prior Board decisions may properly be officially noted.
Counsel for Respondent has cited , within his brief, the statutory requirement that
Board decisions must rest upon a preponderance of the testimony taken , with which
he has coupled a reference to the further statutory provision that agency deter-
minations regarding factual questions shall be considered conclusive , for the pur-
poses of court review, if supported by substantial evidence on the record consid-
ered as a whole . See Section 10(c) and (e) of the Act, as amended. These
statutory provisions , however, have never been held to preclude official notice of
material facts "not appearing in the evidence in the record" whenever such notice
might be found warranted pursuant to settled principles . Pursuant to such prin-
ciples, this Board has frequently taken official notice of its prior decisions. Cf.
Harvey Aluminum (Incorporated ) and General Engineering , Inc., 139 NLRB 151.
This practice has received judicial approval . N.L.R.B. v. Reed & Prince Manufac-
turing Company , 205 F . 2d 131 , 139-140 (C.A. 1); Western Cartridge Company
v. N.L.R.B., 139 F. 2d 855, 856-857 (C.A. 7). Facts thus noticed become-
like testimony-part of the record ; unless successfully controverted , they provide
the same basis for factual determinations as does "evidence" in the usual sense.
The decisions in question provide a significant-though partial-review, which
I consider relevant with respect to Respondent 's labor relations history.
Representatives of the General Counsel have cited four such decisions. The
first-issued on December 10, 1959, and reported at 125 NLRB 674 in the Board's
published decisions-dealt, inter alia, with the General Counsel 's contention that
Respondent and General Engineering , Inc , had discharged three Oregon plant work-
ers in violation of the statute . The Board affirmed determinations by its Trial
Examiner that one worker had been discharged, not for unsatisfactory work, but
because of his role as a spokesman for the men in connection with a protected
work stoppage ; two other workers were found to have been discharged because
they were active union adherents.
In the second case, decided May 19, 1961 , and reported at 131 NLRB 648, the
Board concurred with its Trial Examiner 's determination that conduct legitimately
attributable to General Engineering and the Respondent firm, prior to a previously
held representation election , had "inhibited a free and untrammeled electoral choice"
by their Oregon plant workers. Further, the Board agreed with its Trial Examiner's
determination that the Respondent firm had violated the statute by their termina-
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of a supervisor because of his refusal to support as true their pretext for the
discriminatory discharge of Robert Cavanaugh, a shipping department loader.
Without discussion, the Board affirmed the Trial Examiner's conclusion that
Cavanaugh, plus another worker, had been dismissed because of their participation
in union activity.
The third case, decided May 31, 1962, and reported at 131 NLRB 901, likewise
involved the Oregon plant. Therein, the Board affirmed, without discussion, the
Trial Examiner's determination that Harvey Aluminum, Incorporated, and Gen-
eral Engineering had interfered with, restrained, and corced employees at the plant
in question, in the exercise of rights statutorily guaranteed.
On October 18, 1962, the Board decided a case wherein General Counsel had
challenged certain conduct purportedly chargeable to Harvey Aluminum (Incorpo-
rated) and General Engineering at the Oregon and Torrance, California, plants.
Harvey Aluminum (Incorporated) and General Engineering, Inc., 139 NLRB 151.
The Board found that during the summer and autumn of 1960, when various labor
organizations-including the Union herein-were conducting organizational cam-
paigns at these plants, the Respondent firms had employed a detective agency to
learn and report on the identity of those of their employees who favored union
organization. Further, the Board concurred in the determination of its Trial
Examiner that two Torrance workers had been terminated discriminatorily. (When
this case was heard, the Trial Examiner's Intermediate Report and Recommended
Order in the cited case had just been submitted for Board concurrence. Sub-
sequently, the designated respondents duly filed their exceptions. Respondent's
brief, herein, reflects its contention that, whatever rule might be appropriate with
respect to notice of case decided by this Agency, findings and conclusions merely
embodied in a Trial Examiner's Intermediate Report and Recommended Order
should not be officially noticed. Since the Board's decision with respect to the
matter has now issued, however, I find it unnecsesary to determine any questions
raised with respect to the propriety of official notice directed to a Trial Examiner's
report. Cf. Walton Manufacturing Company, 125 NLRB 485, 487, in this con-
nection.) The Board's decision reflects its concurrence with the Trial Examiner's
conclusion that Respondent Harvey had discriminated with respect to the condi-
tions of one worker's employment, that it had constructively discharged him there-
after, and that the firm had discriminatorily discharged another worker subsequently,
because of their union activities and sympathies-specifically, their agreement to
serve as as union observers in a previously scheduled Board election.
Particular note should be taken, however, regarding the limited scope of my
official notice. Such notice has been confined to- (1) the fact that certain desig-
nated decisions were issued and published by the Agency, and (2) the fact that the
Board made certain factual determinations therein with respect to various unfair
labor practices charged. The brief filed by Respondent's counsel herein contains
a reference to section 7(d) of the Administrative Procedure Act, which provides,
in relevant part, that:
where any decision rests on official notice of a material fact not appear-
ing in the evidence in the record, any party shall on timely request be afforded
an opportunity to show the contrary.
Based upon this statutory requirement, counsel for Respondent has, through his
brief, renewed a request, previously made during the hearing, for an opportunity
to present rebuttal evidence with respect to any matters officially noted. Consid-
ered in context, this request by counsel seems to have derived from a belief that
any notice taken with respect to Board decisions, confers upon the Respondent
firm some "clear right" to present evidence calculated to controvert the factual
determinations contained in such decisions. Presumably, therefore, Respondent
would not seek a chance to controvert merely the facts which I have officially
noted, namely: (1) the fact that certain prior decisions, with the corporation as
one party respondent, have been issued and published by the Agency. and (2) the
fact that these decisions contained certain factual determinations noted. Since
these facts are matters of public record, they could hardly be impugned success-
fully. When notice with respect to prior Agency decisions is limited, however, to
the fact that such decisions have been made, and that they embody certain factual
determinations, section 7(d) of the Administrative Procedure Act cannot legiti-
mately be construed to give parties to some current proceeding the right to
relitigate the correctness of such prior determinations. Neither the language of
the statute, nor its legislative history, can be said to support the view that the
parties' right to request some opportunity to make "contrary" showings, with respect
HARVEY ALUMINUM ( INCORPORATED) 1049
to matters officially noted, permits the "second bite at the apple" which traditional
res judicata principles proscribe.
B. Elections at the Torrance plant
On October 21, 1960, the Board issued a Decision and Direction of Election,
based upon a petition for certification which the Union had previously filed, which
directed that an election by secret ballot be held at the Torrance plant, within a
unit found appropriate for collective -bargaining purposes . This election was con-
ducted on November 28, 1960, under the Regional Director's supervision. (Pre-
viously, reference has been made to the Board's determination that Respondent
effectively terminated the employment of two Torrance plant workers subsequent
to their designation or participation as union observers in connection with a
scheduled election . This November 28 election was the election involved.) The
Union failed to win designation from a majority of employees as their statutory
representative . Shortly thereafter, however, timely objections to certain conduct
by the Respondent firm, which had purportedly affected the election results, were
filed. The Board found these objections meritorious ; therefore, on October 3,
1961, it issued a Supplemental Decision , Order, and Direction of Second Election,
wherein the prior election results were set aside and a new election directed.
These factual determinations rest upon various factual recitals and conclusions
set forth in the Board 's Supplemental Decision . During the present hearing,
representatives of the General Counsel requested that official notice be taken of
this decision , not previously published; copies were provided for the exhibit file.
Respondent 's protest with respect to this procedure-bottomed upon the General
Counsel's failure to state the reason for his notice request-was rejected . There-
after, Respondent made no request for any opportunity to refute or contradict the
recitals and conclusions set forth in the decision noted.
The second election was duly scheduled for November 3, 1961; conferences
between representatives of the Union and Respondent , most of the designated union
observers, and Board personnel , scheduled for the purpose of considering and
determining questions regarding the eligibility of Torrance plant workers to vote,
were held on October 26 and 27, the Thursday and Friday previous. Vidales
attended both conferences as one of the union observers.
C. The discharge of Vidales and Torrico
1. Events before and after the election
Shortly after the conferences noted, several union supporters distributed a leaflet
which had been signed by Vidales together with others, directed to Torrance plant
workers , wherein those previously designated for service as union observers during
the forthcoming election requested their fellow workers to designate Steelworkers as
their statutory representative. And thereafter, on Monday, October 30, reply cir-
culars prepared by Respondent 's director of industrial relations were distributed to
the firm's employees at various plant entiances . ( According to Director of Industrial
Relations Hinz, previously prepared copies of the circular were made available for
such distribution by Respondent 's personnel department , queried as to the number
of copies distributed , Hinz could only reply that his department "normally" runs off
2,000 copies of such circulars and that practically all of these were distributed.)
The circular detailed the job history and earnings of various workers selected by the
Union for service as election observers , and impugned their motives for supporting
that organization. Titled "An Open Letter To The Union Observers," the document
began with a criticism of the union observers for their purported "violation" of some
United States Government representative 's "order" that observers were not to engage
in campaigning. With respect to Vidales-whose name , like that of Abou ben
Adhem, headed the firm 's list of observers-the circular had this to say:
Mr. FRANK VIDALES
Mr. Vidales has been employed by Harvey Aluminum since 1956 , and has
never lost one day 's work due to a strike or layoff. He works all the overtime
he wants, and he averaged $500 a month every month for the year 1960. Mr.
Vidales has also received over $1 ,500 from the Harvey insurance program.
Ask a man working at Columbia Steel in Torrance how this compares with
monthly earnings for the year 1960.
This year, Mr. Vidales will average $550 a month.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If his overtime was stopped like other Steelworker Union plants, this em-
ployee would take a wage cut of $153 per month, which would require a raise
in wages of 950 an hour to break even. Did the Union promise Mr. Vidales a
950 per hour wage increase? Or is Mr. Vidales selling the union promises for
another reason?
Before Mr. Vidales came to Harvey, he was employed in a Union shop for
$1.455 per hour and was laid off after 6 months work. This was just 6 years
ago. He also worked in two other Union plants, one went out of business
after 13 months and he was laid off from the other job after 10 months.
For the first time in his life, Mr. Vidales has job security, and he tells his
fellow employees he has studied the facts and they should join the Union.
Mr. Vidales, you should be ashamed to face your fellow workers.
Previously, on Saturday, October 28, Vidales had had a conversation at his work
station with Foreman Clark; the latter had asked him, "Why was I going to do what
1 was going to do, what was wrong, how come I was going to be an observer."
Vidales had replied that he had given the matter full consideration and believed in
the rightness of his conduct. Clark had then gone on to list the benefits of Harvey
employment, with specific reference to pay rates and security; he had told Vidales
that what he (Vidales) was doing would affect his "fellow workers" and his family.
Declaring that he had known Vidales to be a union supporter during several previous
elections, Clark had cited the firm's failure to discharge him as proof of his job
security. (Clark was not called to testify for the Respondent firm. When representa-
tives of the General Counsel summoned him as a rebuttal witness, he was not ques-
tioned about this conversation; counsel for Respondent made no effort to cover the
matter during cross-examination, nor did he request a chance to make Clark his
own witness for that purpose Vidales' testimony in this respect, therefore, has not
been contradicted.) Finally, Clark had read Vidales a presumably derogatory letter
about some former union representative, asking, "What kind of people are you rep-
resenting here, crooks and thieves?" With this, the conversation had ended.
Without contradiction, Vidales testified further that October 28 had marked his
transfer from a work station at which he and his helper had inspected and packed
small aircraft dies, to another station where they inspected certain dies and did
"excessive" sanding all day. After the election-wherein the Union again failed to
win designation as the workers' statutory representative-he and his helper were
moved once more, this time to another table where inspection and sanding tasks were
performed. Some time later Vidales and his helper were separated; the complainant
was assigned to work with another inspector, one Sorga, doing what he called
"helper's" work, though his wages were not reduced
Vidales, while a witness, suggested-though he did not specifically claim-that
these transfers reflected a discriminatory deviation from normal departmental routine.
However, his work reports throughout several months prior to the representation elec-
tion, which Respondent proffered for the record, reveal that he had previously been
given frequent transfers, with different partners and varied work tasks. Nothing
concrete in his testimony, therefore, would warrant a conclusion that the three trans-
fers in question, which followed his designation as a union observer, reflected a devia-
tion from the departmental norm.
2. The reassignment of Vidales and Torrico to Respondent's oil-coating machine
During the latter part of November or early December, Lawrence told Vidales
that he was being transferred to work under Carnes, the Respondent's leadman
within the department's other bay. Tornco, likewise an inspector then under
Lawrence's supervision, was transferred similarly. When these men reported to
Carnes, they were told that their work station would be at Respondent's oil-coating
machine, where they would be required to "surface inspect" and pack certain large
extrusions, designated for the record as Lockheed wing spar panels. (These panels,
according to the testimony, are fabricated to serve as aircraft wing components.
When rough cut by the Respondent firm, they measure 47 feet, 9 inches, in length;
23 inches, approximately, in width; and weigh approximately 1,165 pounds. These
figures with respect to their dimensions and weight have been derived from various
specifications found in the record, rather than from the testimony of any witness.)
The complainant and his fellow inspector received comparatively brief instructions
for their work near the oil-coating machine. Vidales, whose testimony in this
respect-so far as it goes-has not been contradicted, described Carnes' remarks,
with Torrico's corroboration, as follows:
HARVEY ALUMINUM (INCORPORATED) 1051
I went to him and he took me over to John. He says, "You are going to
work with John Torrico." He says, "The reason we are bringing you both
together is because you are both good inspectors, and there is a lot of metal
coming through here, and we want it to move." . He said to surface inspect
it, mark off the sonic marks, pencil marks, stamp it, have him okay the stamp
and oil it and pack it, on the other end of the oiler.
During cross-examination, Vidales recalled that Carnes had estimated "so many
thousands of pounds" would have to be passed and shipped. Torrico, however, re-
called a statement by Carnes that "probably possibly a million pounds of metal"
were going to be coming through. Carnes recalled his statement merely as a declara-
tion that "several thousand pounds" of panels would have to be handled within the
next month or so. Since the record reveals that each panel weighed more than
1,000 pounds, that 13 such panels were inspected and packed by Vidales and Torrico
within less than 5 hours one day, and that they checked and packed Lockheed panels,
almost exclusively, for more than 2 months, Torrico's recollection with respect to
the substance of his leadman's comment would seem to be more worthy of credence.
Carnes, I find, told the men, essentially, that some very substantial quantity of wing
spar panels would have to be handled at their station.
Their designated task of surface inspection, I find, required the complainant and
his fellow inspector to check each panel visually from one end to the other, looking
for blisters, scratches, or minor gouges. Such defects, when discovered, were to be
smoothed out with a portable electric sander. Vidales testified-with Torrico's
corroboration-that Carnes said he wished to be called for consultation, whenever
large blisters or gouges were found which might require "excessive" sanding to insure
their removal; the complainant went on to testify that his new leadman said he would,
when called, give them instructions with respect to the disposition of such panels.
When Carnes was called as Respondent's witness, he was not questioned with respect
to this portion of Vidales' testimony, which I credit.
According to Vidales and Torrico, whose testimony in this respect I credit, Clark
and Carnes issued no specific direction that gauges or straight edges should be used
for panel inspection at their station; and, despite testimony to the contrary proffered
in Respondent's behalf, I find that Vidales and Torrico never did use gauges or
straight edges to check tolerances while handling large Lockheed wing spar panels.
When questioned, while a witness, regarding the directions he had given, Carnes
said Vidales and Torrico had been told to give the panels "thorough inspection" and
to pass them as quickly as possible. Queried as to whether he had specified what a
thorough inspection would require, Carnes testified as follows:
Yes, I told them in exact words, I told 'em to check the middle for hump and
hollow, to check it for surface defects, to make sure that they got all sonic works
out off of it. And to-not to worry about the longitudinal bow or the lateral
bow so much.
Before giving this testimony, however, Carnes had been questioned about the tasks
which Vidales had performed, while designated to work at the department's "oiling
inspection" station. First, he had declared, merely, that Vidales had been "checking"
large Lockheed panels. When queried with respect to the nature of the check, Carnes
had reported that the complainant checked panels for hump and hollow, surface de-
fects, and so forth. Requested to be more specific about his "and so forth," the lead-
man had testified that Vidales inspected panels for surface defects, sanded them if
such action was required, and that he had given the material "general" inspection.
Finally, when pressed to provide a complete description of the tasks which Vidales
had performed, Carnes testified:
Well, he was checking the metal for hump and hollow, for surface defects,
for sonic marks, where the sonic inspector had put marks on the material he
was making sure they were removed, and checking the material for its dimensional
tolerance.
Carnes did testify that Vidales had used a specific gauge, proffered for the record, to
check "hump and hollow" deviations, together with a straight edge. He provided no
further specifications, however, with respect to the nature of the checks performed
in regard to dimensional tolerances.
For reasons to be discussed elsewhere in this report, this testimony by the lead-
man-particularly that portion of it which was proffered to prove, contrary to the
testimony of Vidales and Torrico, that they had been specifically instructed to check
panels for transverse flatness deviations, or that such checks were performed with
gauges when the panels reached their station-has been rejected.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The discharges
a. The testimony of the dischargees
On Tuesday night, February 13, Tomco received a telegram which ordered him to
report to Respondent's personnel department forthwith. Early next morning, one of
Respondent's plant guards, to whom he reported, directed him to the personnel office.
Vidales, though he had received no telegram, was halted at Respondent' s plant gate
by a guard when he reported for work. He, too, was directed to Respondent's "front"
office. Someone-designated by Vidales merely as the man in charge at the Com-
pany's main gate-instructed both men to surrender their plant badges and identifica-
tion, since they were being terminated.
When the firm's personnel office opened, some "assistant" stationed there asked
them the reason for their presence; he was told that one of Respondent's gate guards
had said they were terminated. When the men requested a statement on the reason
for their termination, the personnel " assistant" first declared that he did not know;
later, after checking, he told Vidales and Torrico merely that they had been terminated
for unsatisfactory work and carelessness. (The Company's termination interview form
which Vidales had signed when discharged, proffered by Respondent for the record,
so states. No comparable form signed by Torrico has been provided.) When
questioned by the dischargees as to what aspect of their work had been proven un-
satisfactory or careless, the personnel "assistant" pleaded ignorance. Vidales then
requested a chance to collect his personal tools. Foreman Clark was summoned, and
reported that he would come to the personnel office shortly, to accompany the
dischargees while they collected their gear. When he arrived, Clark, escorted them
into the plant. Torrico's testimony with respect to subsequent developments-which
Vidales corroborated-reads as follows:
We went back to get our tools in the area there, and [Clark] said, "Did he
tell you why [you] were terminated?" I said, "No. What is the excuse now?"
"Well, you fellows shipped a bunch of bad panel." I said "Bad panel? You
know we ain't supposed to inspect the metal at the oiler." He said, "You fellows
are inspecting You were supposed to know what was wrong with it." I said,
"How can we do it when we were told not to? We had to surface-inspection, oil
it and ship it." He never answered. We went to the tool locker, we got our
tools, gave us a pass, and we went out
When summoned to testify for the General Counsel as a rebuttal witness, Clark was
not questioned about this conversation, either in direct or cross-examination.
b. Testimony proffered in the firm's behalf
Respondent's presentation regarding the circumstances under which Vidales and
Torrico were dismissed, dealt exclusively with prior developments, presently relied
upon to justify the firm's discharge decision; no effort whatever was made to
challenge or contradict the testimony of the dischargees with respect to the manner
of their termination.
There was testimony, first, by E. D. Clodfelter, Respondent's "service engineer"
responsible for servicing the firm's contract with Lockheed Aircraft Corporation for
the latter's Marietta, Georgia, plant. On Saturday, February 10, 1962, according to
Clodfelter, he was told by Menser, sales representative in the Company's Atlanta,
Georgia, office, that Lockheed, through inspection of wing spar panels received,
had found two panels defective; Menser allegedly reported that Lockheed had deter-
mined to scrap the panels, requesting further that Respondent make such read-
justments as might be required to prevent further shipments of defective material.
Clodfelter testified that this report had been given to Plant Manager Tuzzolino forth-
with, by telephone. Queried by Tuzzolino with respect to the nature of the defects
Lockheed had discovered, Clodfelter purportedly declared that Respondent's customer
had scrapped the panels for their "lateral" bow
Tuzzolino, when he testified, reported that he had rejected this term, since he did
not consider it sufficiently descriptive with respect to the defect; Clodfelter, accord-
ing to the plant manager, was asked to procure more data with respect to the precise
nature of the defects discovered, so that Respondent could take necessary corrective
steps.
On Tuesday, February 13, 1962, Clodfelter-who had, meanwhile, communicated
with Menser further-sent Tuzzolino the shipping ticket which had purportedly gone
with the defective panels to Lockheed's Marietta plant. (This ticket, which desig-
nated the two panels shipped by etch numbers "3121-3122" respectively, was dated
January 26, 1962. The ti-ket bore a notation that these panels had been packed by
HARVEY ALUMINUM (INCORPORATED) 1053
two first-shift packers with clock numbers 7130 and 5073; these numbers concededly
designated Vidales and Torrico.) Further, Clodfelter submitted a sketch purportedly
illustrative of the defects which had persuaded Lockheed to scrap the panels. These
submissions were accompanied by a memorandum , from the service engineer, which
read as follows:
Confirming our telephone conversation today, attached is the Lockheed com-
plaint and sketch which you requested Saturday. As you can see from the
sketch and the attached complaint there is a deviation of .100 to .105 from flat.
Max allowable deviation is .080. Disregard the note regarding lateral bow.
The customer means transverse not lateral, bow.
We have panels now in process or in shipping on jobs 92/89862 and
92/89863 for this die. All panels are to be checked for transverse flatness to
make sure that no more panels having similar condition are shipped.
Immediate action must be taken to prevent future recurrence of similar
rejections. It is difficult to see how such panels could have gotten by our
inspection department . Please advise me what action has been taken , since a
report must be made to Lockheed.
This material reached Respondent 's plant manager sometime during the afternoon
of February 13. Tuzzolino testified that, when he received this data, he checked the
diagram of the defective material against Respondent 's print specifications for wing
spar panels; thereupon he decided to discharge the workers whose clock numbers
appeared on Respondent's shipping ticket as packers of the defective panels. (Since
Tuzzolino's decision to dismiss Vidales and Torrico must certainly be considered
crucial, the circumstances under which he made that decision and communicated
with departmental supervision will be detailed and considered subsequently. For
the present, note need merely be taken that Respondent's plant manager took respon-
sibility for the discharge decision; representatives of the General Counsel have made
no effort to challenge his testimony , in this respect ) Tuzzolino visited the firm's
inspection department. There, Foreman Clark and Leadman Carnes were verbally
castigated; Clark was directed to arrange for the termination of the packers respon-
sible for the shipment which Lockheed had reportedly rejected.
Analysis
A. The issues
With matters in this posture, the General Counsel contends that: (1) Respondent
knew Vidales was a union supporter before the scheduled date of the second election,
since responsible management officials were fully aware of his designation as one
of the Union's election observers, and his service in that capacity; (2) the com-
pany's management clearly demonstrated its resentment of the Union's renewed cam-
paign-and particularly the role of Vidales and other union observers therein-
when its director of industrial relations prepared and promoted the distribution of a
circular, derogatory in tone, which discussed their background and motivation; and
(3) Tuzzolmo's subsequent decision to discharge Vidales particularly-though pur-
portedly bottomed upon his presumed responsibility for the shipment of two defec-
tive wing spar panels-really derived from the plant manager's desire to rid his firm
of a worker whose prounion views had been forcefully brought to corporate notice.
Representatives of the General Counsel concede that the present record is "some-
thing short of conclusive" with respect to proof that Respondent' s management
knew about Torrico's union sympathies. (Torrico's participation in the Union's
campaign, and his demonstration of union support, must be considered minimal;
despite the Board's recent determination that Respondent sponsored a program of
labor espionage at the Torrance plant, no determination would be warranted that
management became aware of Torrico's support for Steelworkers thereby.) It is
contended, however, that Torrico was dismissed as a necessary concommitant of
Respondent's determination to rid itself of Vidales, the complainant herein. Since
Vidales was discharged, purportedly, for carelessness in the discharge of his duties-
so the argument runs-his fellow worker, Torrico, had to be dismissed to prevent ex-
posure of Respondent's professed motivation as pretextual. Reliance is placed upon
the Board's previously developed doctrine that, when a discharge has been found
effectuated for statutorily proscribed motives, other discharges effectuated in efforts
to make the employer's motive look lawful likewise merit characterization as dis-
crimination to discourage union membership , contrary to law.
Contrariwise , Respondent's counsel contends that: ( 1) Vidales and his fellow
worker-both designated "Final Inspectors" within the firm's brief-were responsible
for the completion of a thorough inspection , with regard to these Lockheed panels,
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but, (2 ) they proved "negligent and careless" in the performance of their duties and
acted contrary to express directions . Director of Industrial Relations Hinz, during
the hearing , stated Respondent 's position , in this respect , as follows:
It is the Company's contention that the commonly referred to hump and
hollow . . . was out of tolerance so bad through faulty inspection , that the
customer, Lockheed Aircraft, in Marietta, Georgia, completely scrapped the
parts. Mr. Vidales and Mr. Torrico both put their clock numbers as the final
inspection , and the hump and hollow was an inspection item to be completed
at that particular station.
Counsel presently contends that Respondent suffered "substantial damage and detri-
ment" as a result . Under the circumstances , Respondent 's position is that both
Vidales and Torrico were terminated for reasons which cannot be considered statutori-
ly proscribed ; Tuzzolino 's discharge decision-so it is said-rested upon a proper
determination of their precise responsibility , and derived solely from their "mis-
conduct" while at work.
Clearly, disposition of the questions presented , with respect to Respondent 's moti-
vation for the discharge of Vidales specifically , will require a preliminary determina-
tion regarding the precise scope of the responsibility which Vidales and his fellow
worker showed.
Testimony which they proffered, previously noted, would certainly warrant a
determination that they were not directed or required to check "hump and hollow"
deviations or dimensional tolerances, subsequent to their transfer . But witnesses
presented in Respondent 's behalf-none of them sought to contradict the testimony
which Vidales and Torrico presented with respect to the functions which they con-
cededly performed-reported contrariwise, that the complainant and his fellow
worker were , really, directed and required to complete a thorough inspection, which
included such checks.
Preliminarily , therefore , some resolution of this testimonial conflict must be
reached. Certain contentions presented with respect to credibility determinations
requisite to that resolution will be considered.
B. Threshold credibility questions
1. Respondent 's motion to strike testimony
During Respondent 's presentation counsel requested , through motion , that the
complete testimony of Vidales and Torrico be stricken from the record . This motion,
though denied upon presentation, has been renewed in Respondent's brief. (The
motion was renewed together with a motion to dismiss the complaint , for alternative
consideration should the motion to dismiss be denied. Separately cognizable grounds
for the latter motion, however, have not been proffered. Study of Respondent's
brief suggests that counsel's motion for dismissal , presented in this context, would
most logically derive from the contention that deletion from the record of the com-
plete testimony given by Vidales and Torrico would vitiate the General Counsel's
case to such a degree that dismissal of the complaint would be warranted. Pre-
liminary consideration, therefore , should logically be given Respondent 's motion to
strike.) The motion rests upon General Counsel's purported failure or refusal to
provide Respondent 's counsel , pursuant to his request , with certain "statements"
which Vidales and Torrico had concededly signed.
When called as witnesses, Vidales and his fellow worker were permitted to testify-
despite Respondent's objection with respect to materiality-that they had signed so-
called designation or "showing of interest" cards for Steelworkers during the Union's
campaign to win representative status at the Torrance plant.
After their direct testimony , Respondent 's counsel requested the production of
statements previously made by them, which representatives of the General Counsel
might have in their possession; specifically, counsel's request covered such statements
in written form, which Vidales and Torrico had signed or otherwise adopted or
approved. Rules and Regulations, Section 102.118. Thereupon, General Counsel
produced two affidavits which Vidales and Torrico had signed. The General Counsel's
representatives declared that no other statements were in the General Counsel's
possession.
Subsequently , shortly after Respondent's presentation began, company counsel
noted that the so-called "showing of interest" cards mentioned by Vidales and Torrico
had not been produced pursuant to his request that "written statements " signed by
them be produced . Production of the designation cards was requested.
Counsel for the General Counsel conceded that no attempt had been made to
locate these cards in the Regional Office's file; Respondent 's request for their produc-
HARVEY ALUMINUM (INCORPORATED) 1055
tion was protested, however, pursuant to a contention that such cards should not be
considered produceable because of the terms of the relevant Board regulation. Re-
spondent's request that the Trial Examiner require production of the cards was
denied. They were not produced.
With matters in this posture, Respondent presses its motion that the testimony of
Vidales and Torrico should be stricken.
Section 102.118 of the Board rules does provide that, subsequent to testimony
proffered by any witness for the General Counsel, respondents may move for the-
production of any statement by such a witness, then in the General Counsel's posses-
sion, if such statements have been reduced to writing and signed or otherwise
approved or adopted by the witness in question. Further, the relevant regulation
does go on to provide that:
Such motion shall be granted by the trial examiner. If the general counsel
declines to furnish the statement, the testimony of the witness shall be stricken.
Striking of the testimony can be considered required, however, only if the material
which General Counsel has declined to furnish constitutes a written "statement"
within the meaning of the regulation.
The right of defendants in criminal prosecutions to compel the production of pre-
trial statements given by Government witnesses to Government agents-for defense
counsel's inspection and possible use in cross-examination-was defined and confirmed
in the Jencks case. Jencks v. United States, 353 U.S. 657. Subsequently, the Court
of Appeals for the Second Circuit declared that the same right should be given re-
spondents in proceedings before administrative tribunals. N.L.R.B. v. Adhesive
Products Corp., 258 F. 2d 403, 408 (C.A. 2), and cases therein cited. These deter-
minations met with Board concurrence. Ra-Rich Manufacturing Corporation, 121
NLRB 700. With matters in this posture, the Section 102.118 proviso, upon which
Respondent presently relies, was drafted.
Contrary to counsel's contention, however, this portion of the Board regulation
does not define qualitatively the "statements" governed by its terms; therein, re-
spondents are merely given the right to move for the production of witnesses' "state-
ments" which the General Counsel may have in his possession, provided that such
statements have been reduced to writing and signed, or otherwise approved or
adopted, by the witness. Search for some substantive definition of the term "state-
ment" must be directed elsewhere.
The Supreme Court's Jencks decision confirmed the defendent's right in criminal
prosecutions to call for the production of pretrial reports by Government witnesses,
upon a showing that "their reports were of the events and activities related in their
testimony"; further, the documents subject to such a right were described by the
Court as "statements of the witness recording the events" before treacherous memory
had been dulled. Jencks v. United States, supra, pp. 666, 667. Pertinently, the Court
observed that:
Flat contradiction between the witness' testimony and the version of the
events given in his reports is not the only test of inconsistentcy. The omission
from the reports of facts related at the trial, or a contrast in emphasis upon the
same facts, even a different order of treatment are also relevant to the cross-
examining process of testing the credibility of a witness' trial testimony.
[Emphasis supplied.]
Finally, the Court declared defendent's right to compel the production of "reports"
by Government witnesses "touching the events and activities" with respect to which
they testified at the trial.
Shortly following the Supreme Court's decision, Congress amended the Criminal
Code to fix standards by which statements and reports of a witness, currently in the
Government's possession, should be made available to defendents in criminal cases.
18 U.S.C.A. § 3500. With respect to criminal prosecutions, the legislation provided
that:
. no statement or report in the possession of the United States which was
made by a Government witness or prospective Government witness (other than
the defendent ) to an agent of the Government shall be the subject of subpena,
discovery, or inspection until said witness has testified on direct examination in
the trial of the case [Emphasis supplied.]
Subsection (e) of the legislation defined the term "statement" for certain purposes,
particularly with respect to form, as a written statement made by the witness and
signed or otherwise adopted or approved by him, or a stenographic, mechanical,
electrical, or other recording, or a transcription of such a record, which constituted a
substantially verbatim recital of the witness' oral statement , made to a Government
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent, and recorded contemporaneously. No further definition of the term, with
respect to content, appears.
These statutory requirements were subsequently upheld. Palermo v. United States,
360 U.S. 343. Therein, the Court declared that:
The purpose of the Act, its fair reading and its overwhelming legislative
history, compel us to hold that statements of a government witness made to an
agent of the Government which can not be produced under the terms of 18
U.S.C. Section 3500 can not be produced at all . . . It is clear that Congress
was concerned that only those statements which could properly be called the
witness' own words should be made available to the defense for purposes of
impeachment. [Emphasis supplied.]
The Court stated, clearly, that its Jencks decision had been concerned with the
produceability of statements, "if their contents related to the subject matter of the
witness' direct testimony," for which proper demand had been made.
Necessarily Section 102.118 of the Board's Rules and Regulations must be con-
strued consistently with this legislative and judicial gloss. My prior denial of Re-
spondent's motion to strike the testimony of Vidales and Torrico, therefore, must be
reaffirmed. First, note should be taken that no showing was made that the union
designation cards mentioned by Vidales and Torrico contained any "report" or
"version" couched in their own words of the "events and activities" or "facts" related
in their testimony. Clearly, therefore, such cards can not be considered "statements"
within Section 102.118, Title 18 U.S.C.A. § 3500, or relevant judicial decisions.
(If Vidales or Torrico had testified to their payment of union dues by check-assum-
ing that such testimony could be deemed relevant-each document mentioned would
clearly have been receivable as competent evidence, possibly the best evidence, with
respect to its preparation and tender for the purpose stated; the contention, however,
that such checks should be considered produceable upon Respondent's demand be-
cause-considered as checks-they contained some "statement" or "report" with re-
spect to the fact of dues payment would certainly merit rejection.) Speculation that
the cards could have contained further written matter, cognizable as reports by the
card signers, cannot justify an order for their production. Secondly, should an
assumption be made for the sake of argument that the signatures of Vidales and
Torrico on specific "showing of interest" cards constituted written statements, proof
would be still lacking that such statements were "made" to a Government agent while
the present case was under investigation, or while Vidales and Torrico were prospec-
tive Government witnesses. True, designation cards signed by Torrance plant work-
ers-theirs included-may have been submitted to the Board's Regional Office for
the purpose of supporting the Steelworkers' representation petition. Such a sub-
mission, however, would merely have been calculated to provide Board agents with
"real evidence" of the Steelworkers' representation claims; designation cards thus
proffered could not legitimately be considered "reports" made to the Government
in contemplation of the present complaint proceeding.
With this disposition of Respondent's motion to strike testimony, counsel's motion
for dismissal of the complaint-presumably based upon his contention that the testi-
mony of Vidales and Torrico should be disregarded-must likewise be denied.
2. Respondent's contentions regarding the credibility of Vidales and
Torrico, generally
a. Prior false statements
Substantially, Respondent contends-with respect to both Vidales and his fellow
worker-that a record which reveals their prior false statements, coupled with a
failure to provide complete information under circumstances calling for full dis-
closure, requires the complete rejection of their testimony. Specifically, company rep-
resentatives cite documents and testimony purportedly revelatory of prior false state-
ments made by them when they sought work. Further, Respondent cites their failure
to make complete disclosures relative to certain matters covered in their "Personal
Security Questionnaire" forms, which the Department of Defense requires Respond-
ent's job applicants to complete because of the firm's defense contractor status These
matters of record, their background and significance, must now be considered.
(1) Vidales
Vidales-when he sought work on June 19, 1956, with the Respondent firm-
certified that he had never been arrested for any reason "other than" traffic violations.
HARVEY ALUMINUM (INCORPORATED) 1057
However, when required to complete his "Personnel Security Questionnaire" on
June 20, he responded affirmatively to a question which read as follows:
Have you ever been arrested, charged, or held by Federal, State, or other law
enforcement authorities, for any violation of any Federal law, State law, county
or municipal law, regulation or ordinance? Include all court martials while in
military service. Do not include anything that happened before your 16th
birthday. Do not include traffic violations for which a fine of $25 or less was
imposed. All other charges must be included even if they were dismissed.
The complainant's detailed reponse revealed: (1) His October 1954 conviction for
disturbing the peace; (2) his March 1955 drunk-driving conviction; and (3) his
November 1955 arrest on suspicion of some health and safety code violation, with
the charge being later dismissed. While under cross-examination-presumably based
upon some further investigation of his arrest record conducted, by Respondent at
some unspecified time-Vidales further conceded: (1) His July 1953 arrest for
"Grand Theft, Auto," which he characterized as joyriding; and (2) his plea of
guilty on March 21, 1956, and his consequent payment of a $200 fine for possession
of marijuana. (The complainant also conceded his July 13, 1952, arrest and dis-
patch to a forestry camp, presumably for some juvenile offense; this took place be-
fore his 16th birthday.) When asked to explain these omissions, Vidales-con-
siderably abashed-could only say that he had not realized the questionnaire required
him to "go back" to his 1952-53 difficulties, and that he had "overlooked" his 1956
sentence.
Counsel for Respondent have disclaimed any direct reliance upon Vidales' criminal
arrest and conviction record to justify the firm's challenge with respect to his veracity;
they contend, rather, that his denial of any such record when he completed Respond-
ent's job application, coupled with his failure to make a complete disclosure of that
record when he subsequently submitted his "Personnel Security" form, reveals his
"convenient type" memory, lack of candor, and readiness to make false statements.
Such conduct-so the argument runs-should be considered sufficient to raise serious
questions with respect to his credibility generally. Further, counsel's brief suggests
Respondent's present reliance upon further ground for the firm's contention that
Vidales should not be considered worthy of belief; reference is made, therein, to his
purported "'traffic" with narcotics. Company counsel note Attorney General Ken-
nedy's reference to persons who traffic in marijuana, and/or other similar drugs, as
"leeches preying on decent citizens," and mention the Government's "all-out war"
against persons of this "despicable type. Likewise, they have referred to purported
medical journal statements that persons who use "dope" have a tremendous facility
for telling tall tales, and for the creation of fantastic illusions or dreams without
objective reality. Such language necessarily suggests-though it may not expressly
voice-Respondent's contention that Vidales should not be believed because of his
piesumed prior status, both as a confessed "dope" user and participant in narcotics
traffic.
Proof that Vidales certified to a prior false statement on Respondent's application
form, with respect to his criminal arrest record-coupled with proof that his sub-
sequent disclosures in that regard, when responding to a Department of Defense
questionnaire, were not complete-clearly raises a question of credibility. Such
proof, however, neither disqualifies a witness, nor requires that his testimony, ipso
facto, be discredited. Due consideration, certainly, might well persuade a trier of
fact to find his testimony, with respect to the merits of a controversy, deficient in
worth. When "scrutinized with care" however, such testimony may be found reliable.
Birmingham Publishing Company, 118 NLRB 1380, 1385, 1401. With these con-
siderations in mind, we approach the question of Vidales' credibility.
His challenged responses, reflected in Respondent's employment form and the
governmental security questionnaire, were given in June 1956, prior to his 20th
birthday. Their context must be considered relevant. When he applied for work
with Respondent he was married. Shortly before, he had been laid off by his previous
employer, after a comparatively brief work period. Just 3 years earlier he had been
compelled to leave school without completing his high school education. During the
3 years precedent to his application, he had held three successive semiskilled jobs.
While his personal situation, thus briefly summarized, cannot condone Vidales'
lack of candor, reticence with respect to his record certainly seems understandable.
None of his arrests, we may note, grew out of charges with respect to felonies or
misdemeanors which had constituted crimen falsi under the common law. Further,
with a single possible exception, all of his arrests appear to have been limited to the
3 year period subsequent to his school dropout Respondent has made no effort to
show any continuation of Vidales' criminal record subsequent to his employment.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With matters in this posture, I have not been persuaded that Vidales' prior false
statements and lack of candor , with respect to his criminal arrest record , ipso facto,
reflect a settled disposition toward falsehood ; while Respondent 's impeachment clearly
warrants a determination to review his testimony with care , total rejection of that
testimony certainly cannot be considered compelled. While a witness-indeed
throughout the hearing-Vidales impressed me favorably . His demeanor was sober
and restrained ; his manner , respectful . His testimony with respect to the nature of
his work, which will be considered in greater detail, was proffered forthrightly, with
every sign of sincerity and of conviction . Despite some slight confusion , which he
revealed during vigorously pressed cross -examination , his testimony was largely con-
sistent. Conflicts within that testimony , which a study of the record may reveal,
largely derived from questions about peripheral matters; contrary to Respondent's
contention , such conflicts cannot be considered serious.
Respondent's present suggestion that Vidales should be disbelieved , generally, be-
cause of his concession , while a witness , regarding his prior conviction for marijuana
possession , likewise merits rejection . That conviction dates back 6 years; nothing
in the present record suggests a connection between the complainant and marijuana
thereafter . ( Respondent 's brief contains a declaration that its counsel was about
to ask Vidales if he were "still on dope" when I stated that the record was sufficient
for Respondent 's purposes , with respect to the matter then under consideration, and
requested counsel to pass to something else. Study of the transcript will show, how-
ever, that my observation followed, and was prompted , by Hinz' argumentative re-
capitulation of Vidales ' proffered explanation for his failure to mention the marijuana
sentence within his security questionnaire . The firm's director of industrial relations
made no effort, then , to press the question which Respondent , now, declares he in-
tended to present. Nor was any protest registerd , then, that my request, when
made, precluded presentation of a relevant and material question .) Significantly,
Vidales was merely fined , though California law then permitted jail sentences for
not more than 1 year, or commitment to prison for not more than 10 years, upon
conviction for marijuana possession . [ Deering's California Codes, Health and Safety
Code, Annotated , § 11530.] This certainly suggests-though it does not prove-
that he was not considered a serious narcotics law violator . Under such circum-
stances, Respondent 's attempt to stigmatize him as a person guilty of some activity
connected with "dope" traffic-coupled with derogatory references to such persons-
clearly merits characterization as hyperbolic . Nothing in the present record suggests
his present physiological reliance upon narcotics likely to foster "fantastic illusions"
or stimulate "tall tales" with respect to his work responsibilities . His supervisors,
concededly , regarded him a competent inspector ; Respondent has made no conten-
tion that his work was affected by any reliance upon drugs . No warrant , therefore,
can be found for rejection of his testimony on such grounds.
(2) Torrico
Counsel for Respondent contends that Torrico. like Vidales, has been guilty of
falsification and lack of candor with respect to his criminal record. When he sought
work in July 1955, Torrico did-likewise---deny any prior arrest for some reason
other than a traffic violation. His response to the parallel-though more detailed-
question in his security form , however, was affirmative , with the following details
given:
I was notified to appear in court in Auburn. N.Y. Oct. 3, 1938, to answer
a charge for a petition I made for my father . Received six months suspended
sentence . Two years probation [Spelling corrected.]
Confronted with Respondent 's present charge that his negative response-when
queried regarding prior arrests on Respondent 's application form-had been false,
Torrico declared his belief in the correctness of his reply, since his prior difficulty
had not involved physical arrest; his court appearance, according to his testimony,
had followed notice or summons . With his recitals in this respect not challenged,
no conclusion would be warranted that Torrico 's response with respect to his arrest
record revealed a disposition to propound deliberate falsehoods.
With respect to his conceded 1938 conviction , based upon a guilty plea, Torrico's
testimony-which has not been questioned-reveals that his record derived from a
charge that he had made a false satement regarding his financial responsibility,
connected with a petition designed to facilitate his father's admission to the United
States, from Italy , as an immigrant. Since his response to the relevant question
in his "Personnel Security " form clearly met governmental requirements with
respect to disclosure-though his choice of words may have been somewhat inept-
no charge of falsification or lack of candor could be sustained . Respondent's
HARVEY ALUMINUM (INCORPORATED) 1059
brief, however, notes the nature of the charge, and suggests that Torrico's readiness
to provide "self-serving testimony and statements" to achieve "personal gain" with-
out regard for the truth or the law, stands revealed thereby.
With due regard for the record, coupled with my observations of the witness,
this contention must be rejected. Torrico, despite his birth in this country, spent
his formative years in Italy; his testimony revealed strongly accented speech, to-
gether with restricted language facility. (Respondent's brief cites the "unusual"
time which Torrico purportedly took before giving responses during cross-examina-
tion; further reference is made to the "elusiveness" of his replies, though his
direct testimony-so Respondent claims-could not be thus described. My ob-
servations, however, have compelled me to reject Respondent's contention that
this dischargee's cross-examination responses were "unusually" delayed or evasive;
such hesitancy as he may have displayed merely revealed his wariness in the face
of vigorous cross-examination, which he clearly found difficult to follow sometimes,
coupled with patent efforts to choose the proper words for reply.) Nevertheless,
he impressed me throughout as forthright, disingenuous, sincere. Though some
of his responses might arguably be construed as revelatory of failures of memory
or comprehension, nothing in his demeanor provided support for Respondent's
present contention that he merely parroted testimony which Vidales had pre-
viously given, or that he proffered deliberate falsifications. Torrico's "criminal"
record, though reflective of his conviction for false statements, derived from con-
duct now 24 years past. His description of the circumstances under which the
concededly false statement was given rings true; nothing in the record, with re-
spect to the matter, would warrant a conclusion that he was predisposed generally,
to mendacity.
b. Conflicts and discrepancies
Within Respondent's brief, reference is made to the General Counsel's purport-
edly complete reliance upon "self-serving" testimony which Vidales and Torrico
proffered; company counsel contend that such testimony, presented without corrob-
oration by neutral witnesses, should be rejected completely because serious
discrepancies and conflicts vitiate its probative value.
Certainly, failure of the General Counsel's representatives to provide-within
their direct case-corroboration with respect to material issues, does raise a serious
question; before the testimony proffered by Vidales and Torrico can be said to pro-
vide reliable, substantial, and probative grounds for a final determination con-
sistent with the General Counsel's contention, such testimony must be carefully
scrutinized. Review of a record, however, cannot be confined to mere recognition
that certain "self-serving" testimony stands without corroboration; due considera-
tion must be given to the degree of its consistency with other proffered testi-
mony. Likewise, triers of fact must be concerned with such testimony's inherent
probability, viewed in the light of relevant background circumstances. (In this
connection, Respondent suggests that General Counsel's failure to call for the
testimony of certain other persons, though their "depositions" had been taken,
should suffice to raise an inference that their sworn statements contradicted in-
formation which Vidales and Torrico had provided. Representatives of the Gen-
eral Counsel, however, did not concede that such contradictory statements lay in
Regional Office files. Further-with an assumption, arguendo, that sworn state-
ments, containing such contradictions had been brought to General Counsel's
notice-failure to produce the persons who provided them cannot be said to have
rendered the General Counsel's case seriously defective; the credibility of such per-
sons would still require determination.) With these considerations in mind, Re-
spondent's contention, that Vidales and Torrico proffered testimony lacking in
consistency, must be reviewed.
First, we may note-contrary to Respondent's positive declaration-that Vidales
did not give "five sets of conflicting answers" within his direct testimony, cross-
examination, testimony as the company's witness in surrebuttal, sworn pretrial state-
ments, and work reports which firm counsel proffered for the record. Secondly,
much of his testimony cited as contradictory in Respondent's brief merely seems
to merit such characterization when considered, superficially, out of context.
Lastly, many claimed contradictions within the complainant's testimony-with
which counsel coupled supposed contradictions between his declarations and other
record evidence-covered peripheral matters. (Respondent's brief, for example,
charges Vidales with self-contradiction, or contraction by the record, in connection
with his testimony about: (1) The size of the company products he handled be-
fore his transfer to work on large Lockheed panels; (2) the location of his various
712-548-64-vol. 142-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work stations before the crucial November 1961 transfer; (3) the purported lim-
itation of his work to "small aircraft parts" prior to that shift; and (4) the extent
of his work with relatively experienced or inexperienced fellow workers, prior
to his transfer. Without a present determination that Vidales was, really, guilty
of self-contradiction in these respects, we may note, nevertheless, that they involve
purely peripheral considerations. None of the complainant's purported "changes"
with respect to these matters bear directly upon his testimony regarding the nature
or scope of his work on large Lockheed panels.) Vidales' modification of prior
testimony-when questioned in surrebuttal regarding his work history-reflects
nothing more than his refreshed memory, or perhaps his clearer comprehension
of counsel's line of examination; certainly, my consideration of the entire record,
coupled with my observation of the complainant's demeanor, has failed to persuade
me that his purported testimonial "changes" were prompted by contrition or some
consciousness that his prior statements had been perjurious.
Respondent contends, further, that Torrico likewise "prevaricated" when called
upon to corroborate Vidales' testimony. This charge derives from his positive
declaration that departmental supervision "first assigned" him to work with Vidales
during November 1961; company records, subsequently produced, reveal that
he had worked with Vidales, for a grand total of 51/2 hours divided over 3 days,
during the previous July and August. While the firm's "Finishing Reports" thus
literally contradict Torrico's testimony regarding his "first" work assignment with
Vidales, their contradiction clearly relates to a matter without real significance;
considered in context, Torrico's testimony, which counsel for the Company were
at such pains to challenge, reveals nothing more than his concentration upon the
main subject-namely, his November 1961 assignment to handle Lockheed panels.
Throughout this case, Respondent sought to impugn the testimony of the dis-
chargees by reference to purported conflicts or discrepancies between their direct
testimony and their prior sworn statements. Some of these claimed conflicts
did concern testimony with respect to their work routines at Respondent's oil-
coating machine. Contradictory statements with respect to such matters-if really
made-would clearly be significant; Respondent's contentions, therefore, certainly
merit detailed consideration.
Respondent's brief makes much of certain prior sworn statements-which Vidales
and Torrico gave to a Regional Office representative-that routine procedures fol-
lowed at Respondent's oil-coating machine did not include "inspection" responsibility;
counsel have suggested a contrast between such statements and their subsequent testi-
mony that "surface inspection" was required, there, with respect to large Lockheed
panels. My review of the sworn statements in question, however, has convinced me
that their denial of responsibility for panel "inspection" while assigned to Respond-
ent's oil-coating machine reflects a denial that they were required to perform
"thorough inspection" there, which would duplicate checks previously run at Respond-
ent's process inspection table. Such testimony cannot reasonably be considered con-
tradictory of testimony that "surface inspection" was required. (The notation on their
January 26, 1962, finishing report-which shows that they did "Insp. and Pack"
thirteen Lockheed panels-cannot be considered conclusive with respect to the scope
of their inspection; other notations on the report show that Vidales, who preperad it,
distinguished between inspection associated with the processing of aircraft products,
and inspection related to stamping and packing operations.) True, Vidales and
Torrico did sign a joint statement that no one else had "ever" tried to "make an
inspection" while working at Respondent's oil-coating machine Respondent con-
trasts this with Torrico's testimony, during cross-examination, that gauges had pre-
viously been used to conduct inspections there, matching the tests performed at the
process inspection table, between 2 and 4 years earlier. Such testimony, superficially
considered, does contradict the witness' prior sworn statement. Nevertheless, Tor-
rico's modification of his prior statement, to this limited extent, fails to persuade
me that he should be considered unworthy of belief.
With respect to some claimed contradictions between Vidales' testimony and prior
sworn statements, however, Respondent's counsel have raised a further, collateral,
question.
Confronted with counsel's repeated suggestion that his current testimony differed
substantially from prior sworn statements, with respect to material and relevant
matters, Vidales reaffirmed his testimony with a speculative comment that the Board
representative who recorded his prior statement "migh have got it this remarks]
mixed up" when reducing them to writing. Respondent's counsel thereupon re-
quested and secured, pro forma, issuance and service of a subpena upon the Re-
gional Office agent in question. According to counsel:
HARVEY ALUMINUM ( INCORPORATED) 1061
The purpose was to shed more light on the question of where the truth lies
in Vidales' pre-trial statements, his direct testimony, or his testimony on cross-
examination . . . [Regional Office representative] Fox-and Fox only-was in
the best position to say whether Vidales' written statement accurately depicted
what he said at the time he made it.
Representatives of the General Counsel thereupon filed a motion to quash the sub-
pena. This motion was granted, since the General Counsel had not, previously or
contemporaneously, given the Regional Office representative permission to testify.
Rules and Regulations, Section 102.118. Subsequently counsel's request, directed
to the General Counsel, that this Board representative be permitted to testify, was
denied. Substantially, Respondent contends that, pursuant to statute, subpenas
must be issued on the request of any party, subject to revocation only if certain con-
ditions precedent for such action, specified in the statute, have been shown. Con-
cededly, representatives of the General Counsel did not specifically rely upon the
grounds for revocation specified in the statute. Therefore, Respondent contends,
no jurisdiction to revoke the supena lay with the Board or the Trial Examiner;
Rules and Regulations, Section 102.31, insofar as it may purport to permit revoca-
tion of subpenas deemed invalid for "other reasons sufficient in law" is said to exceed
the Board's power.
Basically, Respondent contends that concepts of fundamental fairness require rec-
ognition of its right to proffer testimony of the nature previously noted, calculated
to vitiate the probative thrust of the evidence offered against it. N.L.R.B. v. Capitol
Fish Company, 294 F. 2d 868 (C.A. 5). The propriety of such a generalization
must be conceded. Factually, however, Capitol Fish cannot be considered apposite.
Respondent therein sought permission to question the General Counsel's representa-
tive concededly responsible for some preliminary case investigation, regarding
certain alleged conduct vis-a-vis prospective witnesses which suggested that he had
sought, improperly, to secure evidence supportive of the charge; herein, Respondent
merely seeks to question a Board representative for the purpose of checking the
validity of a witness' proffered explanation regarding supposedly contradictory state-
ments previously made part of the record. Such a line of questions would clearly
divert the present inquiry to collateral issues.
Witnesses challenged for lack of consistency may be permitted, freely, to explain
away the effect of supposed contradictions by their relation of whatever circum-
stances would naturally remove them. See Wigmore, Evidence (3d ed. 1940),
§ 1044, and cases therein cited. When statements claimed to reflect self-contradic-
tion relate to material matters, both parties will generally be permitted to produce
other witnesses upon the issue of whether a contradictory utterance was really made.
But whether further testimony may be introduced as to the correctness of the expla-
nation given by the witness must be considered doubtful, as a matter of precedent;
Wigmore suggests that convenience, usually would seem to require its exclusion.
Ibid. § 1046. Particularly, exclusion would seem to be reasonable, when no sub-
stantial prejudice can be said to result from the refusal of any party to proffer or
permit testimony with respect to the correctness of an explanation for claimed
contradictions. Should the trier of fact be convinced that the witness under cross-
examination has really been caught in self-contradiction, the failure of his proponent
to provide corroboration for his proffered explanation would merely reveal that pro-
ponent's willingness to have any doubts with respect to his witness' credibility re-
solved on the basis of the record made. While a respondent, thereby, may be denied
a chance to provide the witness' proffered explanation false or mistaken-thus com-
pounding the supposed self-contradictions-basic credibility challenges, bottomed
upon his claimed contradictions with respect to relevant, material testimony, would
still remain for resolution.
Review of the record in its present form, coupled with my observations of counsel
and the dischargees, has convinced me that no substantial contradiction-with respect
to material matters-can really be found between their testimony and prior sworn
statements. During his cross-examination of both Vidales and Torrico, Respondent's
representative clearly expressed a different view-regarding the meaning of certain
language used in their prior statements-than these witnesses shared. And their
lack of mental sublety or sophistication, sufficient to cope with their cross-examiner's
semantic shifts, was patent
Two examples should suffice: (1) Vidales, during questioning about his affidavit,
was asked "why" he had asked Foreman Clark whether he and Torrico were supposed
to check panels for bow and twist while they were on rollers. When he tried to tell
Respondent's representative that such deviations could not be checked while panels
were on rollers, and declared that he had "told" Clark so, his attention was recalled
to his sworn statement that he had "asked" wbethei he and Torrico were supposed to
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make such checks. Then-with the prior question, "why," abandoned he was asked
whether his use of the word "asked" constituted a false statement. At this point
Vidales, obviously confounded by his cross-examiner's quick shift, opined that the
Board representative to whom the statement was given "might" have gotten it "mixed
up." Clearly, the complainant had tried to testify that his remark directed to the
foreman-though couched in the form of a question- had been meant as a rhe-
torical protest, calculated to "tell" the foreman that Torrico and he did not consider
themselves responsible for such checks at their station. No "conflict" with respect
to a material matter can reasonably be found here. (2) The complainant's attention
was directed to a lengthy description of departmental inspection procedures, found
in his affidavit. His cross-examiner then asked whether the "assumption" would
be correct, from his statement's context, that the metal product was being inspected
at his station when the described procedure was followed. Vidales, conceding that
his statement's format "made it look like" he and Torrico were performing process
inspection, declared that the statement passage in question merely reflected a descrip-
tion of process inspection procedures, provided at the Board agent's request. At this
point, my suggestion was made that the complainant seemed to believe that his prior
statements to the Board representative had been recorded in a manner which he
"now" believed somewhat garbled. Comprehensive review of the prior sworn state-
ment, however, reveals that the passage under consideration was, really, part of a
lengthy description of what "process inspection consists of" rather than a descrip-
tion of work performed at Respondent's oil-coating machine. No real conflict with
record testimony by Vidales can be demonstrated. Further in his prior statement,
when Vidales purportedly shifted to a description of what "we" did, and what "Fore-
man Clark told us," the context clearly shows his citation of the last occasion when
this occurred as an occasion when Torrico and he were "process inspecting" some
short panels. His statement in the affidavit that this occuired somewhere "about
the first of February" finds corroboration in Respondent's finishing report for January
26, 1962, which shows that the dischargees then process inspected 11-foot panels
for more than. 3 hours.
Claimed conflicts in testimony which clearly derive from the failure of questioner
and witness to achieve some meeting of the minds, with respect to basic terminology
or the significance of particular questions, provide no real justification for a credi-
bility challenge. Upon the entire record, therefore, Respondent's comprehensive
suggestion that Vidales and Torrico should be disbelieved, because of their supposedly
contradictory statements about material matters, lacks persuasive power.
C. Contentions of Respondent regarding the work required of the dischargees
Previously, reference has been made to the testimony of Vidales and Torrico
that they were never directed or required to check "hump and hollow" deviations or
dimensional tolerances, for large Lockheed panels, while stationed at Respondent's
oil-coating machine. Respondent's challenge with respect to their credibility gener-
ally-based upon various intrinsic aspects of their testimony-has been rejected.
Nevertheless, Respondent's testimonial presentation-calculated directly to sustain
its contention that the complainant and his fellow worker were required to perform
such tasks on the panels in question-remains for consideration.
Review of the record, taken as a whole, convinces me that Respondent's burden
of counter persuasion, with respect to this significant aspect of the present case, has
not been met. The proffered testimony of company witnesses-particularly in this
connection-reveals conflicts and variations, coupled with a lack of certainty regard-
ing many material matters. Some of these testimonial discrepancies-rather than
many which would further burden this report-should be noted.
(1) Respondent proffered testimony that Vidales had worked on Respondent's
oil-coating machine before his November-December transfer with Torrico as his
partner; presumably such testimony was offered to suggest his prior familiarity with
the routine work tasks required at that station. Richard Marsh, regularly stationed
at the firm's sonic test tanks, testified that he and Vidales had together inspected wing
spar panels. (According to Marsh, Clark had instructed them merely to "go down
and inspect" material at the oil-coating machine; he testified that no more specific in-
structions were given. Marsh reported that he had merely "assumed" he would be
required to follow "standard" inspection procedures-specifically, procedures with
which he had become familiar while stationed, several years previously, at Respond-
ent's process inspection table. Nevertheless, he conceded that he had not inspected
panels at the oil-coating machine for lateral bow, longitudinal bow, or twist. Taken
as a whole, this testimony would hardly warrant a determination that the responsi-
bility of workers assigned to the station in question was ever clearly defined.)
During cross-examination, he stated that this had occurred during November 1961.
HARVEY ALUMINUM ( INCORPORATED) 1063
Then, after a statement that he had merely worked with Vidales, for "one or two"
days, he finally conceded that he and Vidales had worked together for only part of a
day. Marsh could not recall what part. None of the firm's finishing reports,
proffered for the record, showed Vidales stationed at the oil-coating machine with
Marsh or anyone else, before he and Torrico were transferred there.
(2) Testimony by Respondent's witnesses with respect to normal workflow within
the firm's inspection department clearly reveals a lack of consensus. For example,
Leadman Lawrence testified that panels brought to the department might be routed,
alternatively, to aging furnaces, process inspection, or sonic testing; their first destina-
tion would be dependent upon the amount of backlog at these various locations.
Leadman Carnes declared that he had "never" known Lockheed panels to be aged
before process inspection. Tuzzolino, however, could only state that such panels
would "normally" be process inspected before their delivery to the aging furnaces.
These variations in testimony, though minor, have some significance. Since "aging"
supposedly renders metal less malleable, rational procedure would certainly seem
to require that extrusions be process inspected first. Various types of bow, twist, or
deviations from transverse flatness, discovered at that stage, would clearly be more
readily susceptible of correction if "aging" had not previously been completed. By
way of contrast, checks for "hump and hollow" conducted at Respondent's oil-coating
machine, subsequent to the aging process, would certainly be less likely to facilitate
successful rework of doubtful panels. Further, Clark testified that Lockheed panels
were checked for dimensional tolerances at the process inspection table; Carnes
denied that dimensional tolerances were checked at the stage. Again, some of Re-
spondent's witnesses denied that any checks with respect to lateral bow, longitudinal
bow, or twist were required-or even possible-at the firm's oil-coating machine.
Others declared that bow deviations could be checked there, and that they were
checked with a stretched piano wire and "feeler" gauge. Still others-particularly
the Company's plant manager-testified that inspectors at the station in question
were merely required to make "eye" checks for these deviations. (Tuzzolmo declared
that a practiced inspector could determine, by line of sight observation, whether
panels had lateral or longitudinal bow which exceeded 0.294 inch, or slightly more
than one-fourth of an inch, over their total 47-foot length. Though Trial Examiners
for the Labor Board can hardly claim "expertise" with respect to the competence of
factory inspectors, this testimony hardly seems credible. Gross deviations from
straightness, clearly, might be detectable by such checks; one may surely be per-
mitted to boggle, however, at testimony that naked eye checks would enable in-
spectors to detect the difference between a permissible 0.290 inch deviation and a
proscribed 0.300 deviation, over such a considerable distance. Carnes more or less
conceded the patent implausibility of such a procedure, by testimony that he had
never observed packers at the oil-coating machine making naked "eye" checks.)
Such divergent testimony, with respect to the flow of work within the department
and work tasks performed at various stations therein, certainly provides something
less than persuasive support for Respondent's contention that a thorough "final"
inspection procedure was routinely followed when Lockheed panels reached Respond-
ent's oil-coating machine.
(3) Several of Respondent's witnesses did testify that workers assigned to the
firm's oil-coating machine were required to check "hump and hollow" deviations there.
Such a check, concededly, could only be made with a special gauge, specifically de-
signed to permit the measurement of such deviations for a particular die product.
Yet, despite record evidence which reveals that Vidales and Torrico handled a sub-
stantial number of panels at the designated work station , throughout a 21/2-month
period prior to their termination , Respondent 's tool crib attendent, Wycoff, could only
recall issuance of the necessary "hump and hollow" gauge to them on seven or eight
occasions. (Such gauges-which were normally issued as part of a complete set used
to check a particular die product-had to be requisitioned daily, and were to be
returned at the close of each shift.) If Vidales and Torrico had really been required,
routinely, to use the gauge in question , they would have had to requistion the set of
gauges with which it came many more times. Further, Wycoff could only recall
"hump and hollow" gauge requisitions from process table inspectors about six times
during the crucial 21h-month period with which we are concerned; this, despite a
general consensus that a substantial number of panels were being processed, and
that transverse flatness deviations on such panels were normally checked-for the
first time certainly-at the process inspection table.
(4) Respondent attempted to show that the furnace "aging" process could cause
Hanel deviations sufficient to warrant repetition of some "thorough" inspection at
Respondent's oil-coating machine , before such panels could be packed for shipment.
Lawrence, while a witness, had declared that Respondent's aging process could not
cause any panel defects whatsoever , except, possibly some scratches . Thereafter,
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carnes, Tuzzolino, and Clark, testified, contrariwise, that changes in panels could de-
velop during the aging process; all conceded, however, that they had never, really,
observed changes in wing panels caused by aging, except for a very slight shrinkage
in length.
Recitals marked, throughout, with such contradiction, discrepancies, and varia-
tions-many of which have not been noted, for lack of time and space-cannot sus-
tain Respondent's contention that Vidales and Torrico were, really, responsible for
"hump and hollow" checks on the large Lockheed panels which they concededly sur-
face inspected, stamped, oiled, and packed. Testimony to the contrary, proffered by
Vidales and Torrico, cannot be considered successfully controverted thereby, and re-
mains more worthy of credence.
D. Contentions of Respondent regarding the motivation for the challenged discharges
With an assumption, arguendo, that Vidales and Torrico had been directed to check
"hump and hollow" deviations at their work station, Respondent's record, considered
as a whole, would still lack power to persuade. Tuzzolino's professed reason for the
challenged discharges has not really been convincingly established as the persuasive
motivation for his decision. Several serious lapses and discrepancies in Respondent's
presentation have led me to that conclusion.
First: Representatives of the Respondent firm have submitted no proof whatever
that Lockheed really scrapped two wing spar panels, though normal business practice
would certainly suggest a likelihood that some evidence of such a development would
have been proffered by Respondent's customer (Conceivably, such a proffer could
have been made through a formal written notice that certain panels had been scrapped,
or through Lockheed's submission of a claim for proper credit. Respondent's conten-
tion, therefore, that it should not be faulted merely because of its reluctance to sum-
mon Lockheed officials for corroborative testimony, misses the mark.) Respondent
did provide a so-called "weight" ticket, prepared by the complainant and his fellow
worker, which Lockheed personnel had presumably turned over to a firm representa-
tive; nothing on the ticket's face, however, suggests its connection with scrapped
material. Concededly, Plant Manager Tuzzolino's sole record justification for the
challenged discharges, therefore, derived from certain intracompany correspondence
received from sales representatives of Respondent directly concerned with shipments
made to Lockheed's Marietta plant. (According to Tuzzolino, Vilades and Torrico
were dismissed because of the serious damage done to Respondent's relationship with
Lockheed's Marietta plant-yet no effort was made to show any direct communica-
tion whatever from Lockheed, probative of such an impaired relationship.) Re-
spondent's counsel note, correctly, that apodictic proof with respect to Lockheed's
conduct should not be considered crucial to the firm's defense Nevertheless, their
failure to provide probative documentary material or testimony, with respect to this
claimed aspect of the matter, certainly must be considered a deficiency in Respondent's
defensive presentation.
Second: Respondent's counsel have stated the sole issue presented by the record,
within their view, as follows: Whether or not responsible company officials had
"reliable information and reason to believe" that Vidales and Torrico had been
negligent and derelict in their duties. We may pass, momentarily, some logical
questions whether correspondence prepared by company personnel, without probative
documentation, could reasonably have been considered "reliable information" that
Vidales and Torrico had been negligent; Respondent's contention that Tuzzolino,
because of the material he received, had "reason to believe" them negligent, regardless,
lacks persuasiveness. While a witness, Tuzzolino, himself, conceded that Clodfelter's
first verbal report on Menser's prior communication lacked sufficient clarity and de-
tail to warrant judgment with respect to responsibility for the reportedly defective
shipment, or with respect to necessary corrective measures. Yet Menser's final sub-
mission-when forwarded-was likewise vitiited by serious omissions and dis-
crepancies which clearly called for further clarification: (1) The devation from
print requirements which had purportedly constrained Lockheed to scrap two panels
was described as lateral bow. Clodfelter had to explain that the firm's "customer"
meant transverse bow, though engineering prints available both to Respondent and
Lockheed clearly differentiated between these two tynes of deviation and soecified
a maximum tolerance of 0080 inch as germane to transverse bow: (2) Menser's
sketch depicted one panel, though two were scrapped, with a clearly implied sug-
gestion that both panels had been scrapped for substantially identical defects (the
likelihood that two panels, though shipped in one package. would merit reiection for
the same or substantially identical defects would certainly seem to require a hieh
degree of coincidence; Menser's report +h".fore-since it necessarily suggested the
presence of such a coincidence-clearly raised a question which called for further
HARVEY ALU 1bMINUM (INCORPORATED) 1065
investigation); (3) while Respondent's "weight" ticket covered panels with etch num-
bers 3121 and 3122, Menser's sketch listed panels 3121 and 3123 as those rejected,
without a concurrent submission of Respondent's "weight" ticket for the last-numbered
panel; and (4) Menser's sketch of the rejected panel indicated its total width as
17.730 (inches, persumably), though no Lockheed panels with such a width dimension
appear to have been produced at Respondent's plant. (There is a record suggestion
that Menser's figure referred to the total width of the "hollow" found on the panel's
flat surface. This suggestion must be rejected; drawn arrows on the sketch clearly
depict the 17.730 figure as an overall dimension. Nothing in the record, further,
would warrant a conclusion that the width of a given "hollow" would be a relevant
dimension. Lockheed's tolerance specifications relate merely to the hollow's depth.)
Considered as a whole, these questionable features of the report which Menser and
Clodfelter submitted to Respondent' s plant manager would reasonably vitiate its
probative value; certainly, such a report could not, rationally, be considered sufficient
for his purposes Respondent's contention, therefore, that the report and sketch
provided Tuzzolino with a valid "reason to believe" that Vidales and Torrico,
specifically, had been negligent, must be rejected as not proven.
Third: Respondent's presentation regarding the manner in which Tuzzolino's dis-
charge decision was reached, fails to persuade. With an assumption, arguendo,
that he determined to take corrective measures on the basis of Menser's sketch and
Clodfelter's memorandum, the plant manager's testimony, nevertheless, lacks con-
sistency. First, he testified in direct examination that he "went out" and spoke to
Foreman Clark, asking who had inspected the rejected panels. He declared that
Clark had thereupon consulted his badge number list and identified Vidales as the
responsible inspector. According to Tuzzolino, Clark was then told, "I want him
discharged." During further direct examination, Tuzzohno testified that he deter-
mined to discharge the inspectors whose clock numbers appeared on Respondent's
"weight" ticket when he received it, and that he did not know Vidales and Torrico
were the two men involved until after he had directed Clark to terminate the persons
responsible for the defective panel shipment. Under cross-examination Tuzzolino
recapitulated his conduct, subsequent to his receipt of Menser's sketch, as follows:
I called Mr. Clark on the phone and I went out there and I met him and I
had the tickets in my hand. I said, "Who inspected this?" He looked-whose
badge number that was on the card. I think-I-but you have the card. He
looked in his pocket, looked a little-he-he has a list of all his people, and
what they are doing. He told me it was Vidales and Torrico, and I kind of
raised the dickens with him. Before that I told hun whoever was responsible I
wanted to fire So then, I raised [cam] with him. Then I asked him who he
had working for him-for he was working for Carnes so I went and got a hold of
Carnes and I showed it to him I said "Who are these two people?" And he
said, "Vidales and Torrico " Then I read him up and down for the same
reason [Emphasis supplied ]
Clark, when summoned as the General Counsel's rebuttal witness, first testified that
Tuzzolino, during a conversation, told him about Lockheed's rejection of two panels
and showed him the firm's weight ticket with the panel numbers listed and the clock
numbers of the packers involved. Such testimony clearly implied that their conversa-
tion had been face-to-face. I so find. General Counsel's next question-which was
whether Clark thereupon identified the packers for the plant manager from their
clock numbers-was interrupted, however, by a belated objection with respect to
testimonal foundation With such a foundation for the conversation in question laid,
the General Counsel's question was renewed; Clark testified that he has ascertained
the identity of the packers from their clock numbers. When asked if he had so
informed Tuzzolina, at that time, Clark, for the first time, stated, "Well, he called me
and told me the situation, what had happened." This nonresponsible reply was fol-
lowed by a discursive "objection" from Respondent's representative, who purported to
explain the intent behind Clark's response. Clark then repeated the testimony that
his first communication from Tuzzolino, with respect to this matter, had been in
the form of a telephone call, during which the plant manager told him what had
happened, read the clock numbers on the ticket, and directed the discharge of the
two inspectors concerned because of carelessness Clark added, "He says he doesn't
care, that he wants them terminated." (Respondent's brief recapitulates Clark's
recital as testimony that he (Tuzzolino) said he didn't care who they were, he wanted
them terminated. Such a recap clearly reflects extrapolation.) The foreman testi-
fied that the discharge of Vidales and Torrico was further discussed, when he saw
Respondent's plant manager. His prior sworn statement however, given to a Board
representative within 2 weeks after the challenged discharges, contains no reference
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to any February 13 telephone call. Referring to Tuzzolino's physical transmittal of
Respondent's "weight" ticket, Clark declared-within the statement-that:
I told Tuzzolino who the employees were who had these numbers and we
discussed what should be done about it. During this discussion it was jointly
determined that Vidales and Torrico should be discharged. I am sure that the
discussion, in which the decision to discharge was reached, took place after 3:30
p.m. on 2-13 and both men had left the plant. [Emphasis supplied.]
Clark's contention, while a witness, that he should not be held responsible for the
material within his prior sworn statement-because he supposedly signed the state-
ment, given in the presence of Respondent's director of industrial relations, without
reading it or having it read-must be rejected. He subscribed his initials within the
margin of 7 out of the statement's 10 pages; 2 other pages reveal corrections initiated
by him; the last page bears his full signature, certifying all before as true and correct.
Under such circumstances, his denial of knowledge with respect to the statement's
content simply strains credulity too far. Upon the entire record and my observation
of Clark as a witness, I am fully satisfied that he was cognizant of his statement's
content when he swore to its truth and subscribed his name. The statement, there-
fore, merits consideration both (1) as an impeachment of Clark's testimony that
Tuzzolino communicated his decision with respect to the discharges during a tele-
phone call, before he knew the names of the workers who would be terminated,
and (2) as a probative admission, made by a responsible management representative,
with respect to the circumstances under which that discharge decision was really
communicated. Kasco Trucking Corp., 133 NLRB 627, 628; Local Union No. 1,
Bricklayers, Masons & Plasterers International Union of America, AFL-CIO (J.
Hilbert Sapp, Inc.), 119 NLRB 1466, 1467. With a record compounded of such dis-
crepant testimony-proffered regarding a clearly material matter-Respondent's
contention that Tuzzolino's discharge decision was formulated and communicated
without regard to the identity of the workers concerned cannot be considered proven
Cf. Morrison Cafeteria Company of Little Rock, Inc., 135 NLRB 1327. Rather, my
consideration of Respondent's presentation as a whole-even without reliance upon
Clark's affidavit as substantive evidence relative to the matter now under considera-
tion-has convinced me Respondent's plant manager learned the identity of the
workers who would be concerned with any decision he might make, before his dis-
charge decision was made. Cf. N.L R.B. v Walton Manufacturing Company &
Loganville Pants Co., 369 U.S. 404, 408, citing Dyer v. MacDouglass, 201 F. 2d
265, 269, in this connection.
Fourth: Respondent's reaction to Lockheed's purported complaint, subsequent to
the challenged discharges, strongly suggests management's lack of genuine perturba-
tion regarding the likelihood of some "future recurrence of similar rejections" despite
Clodfelter's plea for "immediate action" calculated to prevent their recurrence.
Such a lack of concern-revealed by the firm's failure to take further preventive
steps-necessarily creates doubts with respect to the bona fides of Respondent's present
claim that Vidales and Torrico were discharged to prevent further panel rejections.
Specifically: (1) Respondent replaced the dischargees with one experienced worker,
and with one having less than 5 months of company experience; while a witness,
the latter designated himself a mere helper. These assignments may be contrasted
with the original decision of the departmental supervisors to assign "two good in-
spectors" to handle large Lockheed panels at Respondent's oil-coating machine. (2)
These replacements were not told that Vidales and Torrico had been discharged
for negligence; they received no cautionary direction to exercise care. Further, they
were given nothing more than a general instruction regarding the nature of the checks
they would have to make. (One, Charles Picco, did testify that Clark told him to
inspect panels "all over again" for "hump and hollow" using gauges, even if the panel
had been inspected previously. During direct examination, however, Picco had to
be prompted regarding his responsibility for surface inspection; during cross-examina-
tion, he denied making any checks for lateral bow, longitudinal bow, or twist Picco's
helper, Charles King, could only recall a direction to check panels for hump and
hollow: despite confrontation with a leading question in direct examination, he could
not recall being given responsibility for surface inspection.) (3) Nothng in the
testimony proffered by Carnes or Clark suggests that departmental routines or record
procedures were modified or clarified in any way calculated to prevent some "future
recurrence of similar rejections" pursuant to Clodfelter's request. (4) No effort,
whatever, seems to have been made to determine the identity of the process table
inspectors who had pased two purportedly defective wing panels: clearly, no depart-
mental worker has ever been cautioned or disciplined for participation in some
faulty process inspection on such panels. Credible testimony, proffered without
contradiction, reveals that process table inspection procedures required thorough
HARVEY ALUMINUM (INCORPORATED) 1067
checks for various types of bow and twist, together with checks for "hump and
hollow" deviation. Process table inspectors had to complete a white ticket showing
whether particular panels had been passed, marked for rework, or marked for scrap;
further, these inspectors, like others within the department, had to submit daily work
reports listing the job, die, and release numbers of panels inspected. No satisfactory
showing has been made that Respondent's plant manager would have been unable to
identify the process table inspectors responsible for checking the lot which included
the panels purportedly rejected. Essentially, Respondent seems to be contending that
Tuzzolino's discharge of two concededly competent inspectors, for a purported derelic-
tion of duty limited to one occasion, constituted a sufficient response to Lockheed's
reported complaint. Such a contention carries no conviction; when made, it suffices
to raise a serious doubt that Vidales and Torrico were, really, dismissed to correct a
departmental deficiency. Lack of proof that Tuzzohno made any effort to fix further
responsibility for the defective panels necessarily buttresses my conclusion, previously
noted, that Clodfelter's report with respect to Lockheed's complaint created no
genuine concern.
And, with the record in this posture, Board determination would certainly be war-
ranted that the genuineness of the professed motivation for the challenged discharges
has not been shown.
Conclusion
My review of the present record, rather, has convinced me-despite the Respondent
firm's contrary contention-that Tuzzolino's decision to have Vidales and Torrico
terminated, reached on February 13, 1962, derived from his desire to discourage
the unionization of Respondent's employees.
The status of Vidales as a union protagonist has not been contested; nor has
any question been raised regarding Respondent's knowledge of his personal, direct
participation in the Union's representation campaign. And the propriety of a
factual determination that management resented Vidales' activity as a proponent of
unionization would seem patent. By way of summary: He permitted himself to
be nominated for service as a union observer during a scheduled Board election;
thereafter, he permitted use of his name on a union circular. Respondent's di-
rector of industrial relations matched that circular with a prepared broadside,
wherein Vidales, inter alia, was castigated for stupidity and possible venality. His
forearm, concurrently, questioned his judgment, during a conversation which in-
cluded veiled threats of reprisal. The complainant withstood these pressures;
he served as a union observer. Thereby, he demonstrated-despite Respondent's
castigation and threats-his steadfast union adherence.
Within this context, consideration must be given the circumstances of Vidales'
subsequent termination, and the search for Respondent's motivation must begin.
The General Counsel contends, persuasively, that any search for Respondent's
motives may properly start with the testimonial and documentary record of the
firm's hostility to the free exercise-by Torrance plant workers-of rights statutorily
guaranteed. For a clear revelation of such hostility, we need not go beyond
Respondent's broadside, previously noted, and Vidales' uncontradicted testimony
regarding his conversation with Clark. However, the Board's determinations in
previous cases-which I have officially noticed-further reveal Respondent's dis-
position to rely upon discharge techniques to restrict the exercise by employees of
statutorily guaranteed rights, coupled with reliance upon pretexts to conceal such
unlawful conduct. These determinations may properly be considered germane
to any present assessment of Respondent's true motive for the challenged discharges.
N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 139-140'
(C.A. 1); Western Cartridge Company v. N.L.R.B., 139 F. 2d 855, 856-857 (C.A.
7). As the court observed in Reed & Prince, particularly:
After reviewing the facts and stating its conclusion as a whole, the Board
in its decision had this to say: "We have scrupulously avoided prejudging
the Respondent because of its rather unsavory labor relations history, but
the Board is not required by law to ignore this history. Accordingly, in
evaluating the evidence in this case, we have given some weight to this factor."
Respondent contends that the Board committed a glaring error in taking
account of this factor and that for this reason the Board order should be set
aside. We do not think it would be error, in a case like this, for the Board
to take account of the prior history of the Company's labor relations , as dis-
closed in the prior record of which the Board might take judicial notice. The
ultimate issue whether the Company conducted its bargaining negotiations
in good faith involves a finding of motive or state of mind which can only
be inferred from circumstantial evidence. It is similar to the inquiry whether
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employer discharged an employee for union activity, or for some other
reason , where the prior history of the employer's labor relations, whether
good or bad, may be relevant.
Such references to prior Board determinations-contrary to counsel's view-confer
no right to relitigate their correctness. While problems may conceivably arise
regarding the validity of certain inferences drawn from matters officially noted,
questions of that nature merely bear upon the "substantial evidence" requirements
which administrative tribunals must follow. The Supreme Court has declared that
administrative agencies, with power to determine-from evidence produced in
adversary proceedings-whether statutory commands have been violated, may infer,
from the proven facts, within the limits of their inquiry, whatever conclusions may
reasonably be based upon the facts proven. Republic Aviation Corporation v.
N.L.R.B., 324 U.S. 793, 800. And facts officially noted-previously cited cases
demonstrate-may be considered proven when not persuasively controverted, thus
providing a further basis for inference.
What significance, then, may be attached to the circumstances of Vidales' termi-
nation? Preliminarily, reference should be made to the fact that Respondent em-
ployed him for more than 5ih years. Nothing suggests that his work was ever
criticized, prior to his discharge; Respondent concededly considered him a "quali-
fied" inspector. During his later years of service, he worked with many less-
experienced men, serving, essentially, as their mentor. When testimony, received
without contradiction, reveals that Respondent acted without giving such a highly
regarded worker any chance to learn the nature of his purported dereliction-
much less any chance to proffer some explanation which might have sufficed to
relieve him of responsibility for his supposed negligence-such precipitate action
merits treatment as suspect. (Significantly, management representatives made no
effort, whatever, to tell the dischargees the nature of their dereliction, until their
return to the plant for the purpose of collecting their personal gear.) And sus-
picion regarding Respondent's motivation, would necessarily be compounded, fur-
ther, by Respondent's failure to demonstrate convincingly, that prompt and fair
investigation of the matter had been conducted, sufficient to justify a judgment
that Vidales and Torrico had really been responsible for some dereliction of duty.
Compare Lakeland Cement Company, 130 NLRB 1365, 1376-1377, in this
connection.
With Respondent's general bias against unionization clearly revealed; with man-
agement's knowledge of Vidales' direct, personal interest in the Union's campaign
conceded; with Respondent's disposition to bring pressure upon him because of his
prominence as a Union protagonist clearly demonstrated-General Counsel has,
prima facie, a sufficient basis for the determination that Vidales was terminated
because of his status as a union supporter. Failure of Respondent's claimed rea-
son for the discharge to stand up under scrutiny, thereafter, would clearly warrant
a determination that-since management's professed motivation merited charac-
terization as pretextual-management's antipathy to union membership, interest,
or activity had really tipped the balance in the scales of causation and become
causa causans, the real cause of discharge. N L.R.B. v. Robbins Tire & Rubber
Company, Inc., 161 F. 2d 798, 801 (C.A. 5). Failure of belief, of course-with
respect to the reason advanced by any respondent to justify discharges-will not,
itself, prove the existence of a proscribed motivation The burden of proof remains
on the General Counsel to show the existence of a discriminatory motive, and not
on the Respondent to disprove it. Here, however, General Counsel has certainly
met that burden. In N.L.R.B. v. May Department Stores Company, 154 F. 2d
533, 538 (C.A. 8), reference is made to:
. The broad scope of inference open to the Board on questions of motive
and discrimination, where the evidence indicates a desire to thwart or nullify
organizing efforts, either generally or as to a particular employee-organiza-
tion ... .
And where, as here, management has previously demonstrated, clearly, opposition
to the unionization of its employees, a very convincing case of discharge for cause
would have to be made, to render unreasonable a conclusion that the discharge had
been motivated by union affiliations. Dannen Grain and Milling Company v.
N.L.R.B., 130 F. 2d 321, 328 (C.A. 8). This burden of counterpersuasion, I find,
Respondent has failed to meet.
Substantially, Respondent's professed motivation for the challenged discharges
may be considered similar to a tradition tort claim that: (1) Vidales and Torrico
had a clear duty or responsibility to check "hump and hollow" deviations when
handling large Lockheed panels at their work station; (2) they were negligent in
HARVEY ALUMINUM (INCORPORATED) 1069
discharging that responsibility when handling two specific panels; and (3) Re-
spondent suffered "substantial damage" and detriment, vis-a-vis one of its principal
customers, thereby. Respondent's presentation, however, lacked persuasiveness
regarding all three counts: (1) Testimony proffered in Respondent's behalf, with
respect to the scope of the work Vidales and Torrico were required to perform, was,
considered as a whole, vague and contradictory. Though several witnesses did
testify that "hump and hollow" deviations were routinely checked or rechecked at
Respondent's oil-coating machine , testimony with respect to the balance of the work
performed there could not be considered probative of Respondent's contention that
station procedures called for any final "thorough" check of Respondent's large
Lockheed panels. (2) Respondent's faliure of proof with respect to Vidales'
claimed dereliction of duty was triple-(a) lack of proof regarding his responsibility
for "hump and hollow" checks clearly undercut the firm's contention that his failure
to perform such a check with respect to particular panels constituted negligence;
(b) the data relied upon by Respondent's management, purportedly to justify its
conclusion that some negligence had caused the shipment of defective panels, pro-
vided no clear warrant for a determination that Vidales and his fellow worker
were guilty; and (c) Respondent's contention that Tuzzolino directed the chal-
lenged discharges before he learned the names of the workers affected lacked
persuasive support. (3) Counsel's claim that Respondent's relationship with Lock-
heed was damaged completely lacks record justification. With matters in this
posture, I find and conclude that the possibly defective panels-assuming, arguendo,
that such panels were shipped, and that they were later scrapped by Respondent's
customer-were utilized as a pretext by Respondent's management to rid the firm
of Vidales, and, thereby to discourage other employees from continued union
support.
General Counsel's present contention with respect to Respondent's lack of justifi-
cation for Torrico's dismissal, previously noted, likewise merits Board concurrence.
Respondent's contention that the General Counsel's representatives failed to prove
their complaint's contention with respect to Torrico's discharge-and that no deter-
mination based upon some new "theory" with respect to his termination would be
warranted-cannot be considered sound.
Clearly, this Board's powers with respect to factual determinations in complaint
cases have not been limited to the formal and literal scope of the pleading, but
extend to all relevant issues knowingly litigated by the parties. And-anyhow-
there can be no question but that General Counsel's contention regarding Respond-
ent's motive for Torrico's termination- even assuming, arguendo, that it was "tech-
nically" outside the pleadings-was still germane to the complaint's subject matter.
N.L.R.B. v. Piqua Munising Wood Pioducts Co., 109 F. 2d 552, 557 (C.A. 6). The
real question presented herein-which was clearly comprehended by all parties-
was whether Respondent had engaged in unfair labor practices statutorily proscribed.
Clearly, this Agency-like any judicial or quasi-judicial body-may not be limited
to the legal theories urged by contending counsel, but may, if it chooses, uphold the
ultimate contentions of either party upon some entirely different theory See
N.L.R.B. v. WTVJ, Inc., 268 F. 2d 346, 348 (C.A. 5); N L.R.B. v. M. L. Townsend,
185 F. 2d 378, 384 (C.A. 9), in this connection.
By discharging Vidales and Torrico, Respondent, I find, discriminated with re-
spect to their hire and tenure of employment. Cf. The Bendix Corporation, Research
Laboratories Division, 131 NLRB 599, 606-610, enfd. 299 F. 2d 308 (C.A. 6) in
this connection. Thereby Respondent discouraged membership in the Union, in
violation of Section 8(a) (3) and (1) of the Act, as amended.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the business operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and,
absent correction, would tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent engaged in and continues to engage in
certain unfair labor practices, it will be recommended that the Board issue an order
requiring that it cease and desist therefrom and take certain affirmative action, in-
cluding the posting of appropriate notices, designed to effectuate the policies of the
Act, as amended.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specifically , Respondent enterprise has been found responsible for discrimination
with respect to the hire, job tenure, and terms of employment of Frank Vidales
and John Torrico, by the termination of their employment without legal justification,
in order to discourage membership in a labor organization . Thereby, Respondent's
employees, generally , were interfered with, restrained , and coerced in the exercise
of rights statutorily guaranteed . To effectuate the statutory objectives, therefore,
my recommendation will be that the Board order Respondent to offer Vidales and
Torrico immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights and privileges. See
The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
54 NLRB 827, for a definition of the phrase "former or substantially equivalent
position" used in this report.
Additionally, recommendation will be made that Respondent be ordered to make
Vidales and Torrico whole for any loss of pay, or other incidents of the employment
relationship , which they may have suffered by reason of the discrimination practiced
against them . Respondent's obligations in this respect should include an obligation
to pay interest on any backpay due Vidales and Torrico at the rate of 6 percent,
computable in the manner which the Board has recently approved. Isis Plumbing
& Heating Co., 138 NLRB 716. It will be recommended, therefore, that the Board
order Vidales and Torrico made whole by the payment to each of them of a sum
of money equal to the amount which each normally would have earned as wages in
Respondent 's employ, between the date of their discharge and the date of any proper
reinstatement offer which Respondent may make hereafter, pursuant to the recom-
mendations made elsewhere in this report, less their net earnings during the period
indicated , together with interest thereon . Crossett Lumber Company, 8 NLRB 440,
497-498, Republic Steel Corporation v. N.L.R.B., 311 U.S. 7. Pay losses suffered
by Vidales and Torrico should be computed on a quarterly basis pursuant to the
formula which the Board now utilizes . F. W. Woolworth Company, 90 NLRB 289,
291-294; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S 344
The interest payable thereon should be computed at the rate of 6 percent per year
on the amount found due for each calendar quarter under the Woolworth formula,
beginning with the end of such calendar quarter and continuing until payment of
such amount is properly made.
In order to assure expeditious compliance with these recommendations in regard
to backpay, it will be recommended , finally, that Respondent preserve and upon
request, make available to the Board and its agents all pertinent records.
Subsequent to my approval of the General Counsel's request for a brief recess
during the present case-which I found reasonably necessary in order to give repre-
sentatives of the General Counsel time to procure the attendance under subpena of
a rebuttal witness then employed by the Respondent enterprise in a supervisory ca-
pacity-Respondent contended that any possible backpay liability which might be
assessed against it should be suspended for the duration of the recess . This conten-
tion should be rejected. Considered in context , the situation which made necessary
the General Counsel's request for a recess could not have been attributed, justifiably,
to lathes or negligence by Board personnel; nor could the length of the requested
recess, which had been determined in part by the need to accommodate counsel,
be considered unreasonable . Cf. Deering-Milliken, Inc. (Darlington Mfg. Corp.) v.
Johnston, 295 F. 2d 856, 867-868 (C.A 4). Further, this Agency has routinely
refused requests for backpay abatement because of delays incident to the processing
of cases. Winn & Lovett Grocery Company, d/b/a Margaret Ann Grocery Stores,
115 NLRB 1676, 1678; Agar Packing & Provision Corporation, 81 NLRB 1262,
1265 Board policy in this respect , generally, has received judicial approval.
N.L R.B. v. Electric Vacuum Cleaner Company, Inc., 315 U.S. 685, 697-698; J. A.
Bentley Lumber Company v. N.L.R B., 180 F. 2d 641, 642 (C A. 5); N.L.R B. v
Cowell Portland Cement Company, 148 F. 2d 237, 246 (C.A. 9); Berkshire Knitting
Mills v. N.L.R.B., 139 F. 2d 134, 141-142 (C A. 3) Further. since the recess was
requested by the General Counsel 's representatives, employees subjected to discrim-
ination should not be penalized or forced to stiffer a loss of benefits because of such
a development . See N.L.R.B. v. Electric Vacuum Cleaner Company, Inc., supra;
N.L.R B v. William Davies- Co., Inc, 135 F. 2d 179, 183-184 (C.A. 7); N.L.R.B. v.
Wilson Line, Inc., 122 F. 2d 809. 815-816 (C A 3), in this connection
Respondent 's course of conduct considered in context-with particular reference to
previous Board decisions wherein conclusions were reached that the firm had com-
mitted unfair labor practices-discloses an attitude of oppositions to the purposes of
the statue with respect to the protection of employee rights in general . Discrimina-
tory discharges , particularly, constitute a type of proscribed conduct which "goes
to the very heart of the Act" and necessarily suggest Respondent's purpose, gen-
HARVEY ALUMINUM (INCORPORATED) 1071
erally, to limit worker's rights. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532
(C.A. 4). Respondent's course of conduct, therefore, reasonably reflects its purpose
to defeat employee self-organization, and may justifiably be characterized as closely
related to other unfair labor practices statutorily prescribed. A danger with respect
to the commission of such unfair labor practices in the future may be anticipated,
therefore, from Respondent's past conduct. The preventive purpose of the statute
will be frustrated unless the remedial action recommended in this case, and any order
which may prove to be necessary, can be made co-extensive with the threat. In
order, therefore, to make the interdependent guarantees of Section 7 effective,
prevent any recurrence of the unfair labor practices found, minimize industrial strife
which burdens and obstructs commerce, and thus effectuate the policies of the
statute, it will be recommended that Respondent cease and desist from infrigement,
in any other manner, upon rights guaranteed by the aforesaid statutory provision.
In the light of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Harvey Aluminum (Incorporated) is an employer within the meaning of Sec-
tion 2(2) of the Act, engaged in commerce and business activities which affect com-
merce within the meaning of Section 2(6) and (7) of the Act, as amended.
2. United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act, as amended, which admits employees of Harvey
Aluminum (Incorporated) to membership.
3. By its discriminatory discharges of Frank Vidales and John Torrico, its subse-
quent failure or refusal to offer them effective and complete reinstatement, and its
consequent interference with, restraint, and coercion of employees in the exercise
of rights statutorily guaranteed, Respondent engaged in and continues to engage in
unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and
(3) and Section 2 (6) and (7) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record
in the case , it is recommended that the Board , pursuant to Section 10(c) of the
National Labor Relations Act, as amended, order that the Respondent, Harvey
Aluminum ( Incorporated ), its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouragement of membership in United Steelworkers of America, AFL-
CIO, or any other labor organization , by the discharge of employees , or by discrimi-
nation in any other manner with respect to their hire or tenure of employment, or
any term or condition of their employment , except as authorized under Section
8 (a) (3) of the Act, as amended;
(b) Interference with , restraint , or coercion of employees , in any other manner,
in the exercise of their right to self-organization , to form labor organizations, or
join or assist United Steelworkers of America , AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own free choice, and
to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities , except
to the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment , authorized in Section 8(a) (3 )
of the Act, as amended.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act, as amended;
(a) Offer Frank Vidales and John Torrico immediate and full reinstatement to
their former or substantially equivalent positions , without prejudice to their seniority
and other rights and privileges , and make them whole in the manner set forth in
the section of the Intermediate Report 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, time-
cards , personnel records and reports, and all other records necessary or appropriate
to permit an analysis of the backpay amount due the employees designated , together
with their reinstatement rights, as set forth in the section of the Intermediate Report
entitled "The Remedy."
(c) Post at its place of business in Torrance , California , where the unfair labor
practices were committed , copies of the attached notice marked "Appendix." i Copies
'In the event of Board adoption of this Recomm-nded Order, the words "A Decision
and Order" shall be substituted for the words "The Recommended Order of a Trial
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the notice, to be furnished by the Regional Director of the Twenty-first Region,
shall after being duly signed by a representative of the Respondent enterprise, be
posted immediately upon their receipt thereof, and be maintained for 60 consecutive
days thereafter , in conspicuous places, including all places where notices to employees
are customarily posted . Reasonable steps shall be taken by Respondent to ensure that
these notices are not altered , defaced, or covered by any other material.
(d) File with the Regional Director of the Twenty-first Region, as the agent of
the Board , within 20 days from the date of service of this Intermediate Report and
Recommended Order, a written statement setting forth the manner and form in
which it has complied with this Recommended order.2
Examiner" in the notice . In the further event of enforcement of the Board 's Order 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."
2In the event of Board adoption of this Recommended Order, this provision will be
modified to read : "Notify said Regional Director , in writing , within 10 days from the date
of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
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, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization, by the discharge of employees, or
by discrimination against them in any other manner in regard to their hire and
tenure of employment , or any term or condition of their employment , except as
authorized in Section 8(a)(3) of the Act, as amended
WE WILL NOT interfere with, restrain, or coerce our employees in any other
manner in the exercise of their right to self-organization, to form labor orga-
nizations, to join or assist United Steelworkers of America, AFL-CIO, or any
other labor organization, to bargin collectively through representatives of their
own free choice, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act, as amended.
WE WILL offer Frank Vidales and John Torrico immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make them whole for any
loss of pay, or other incidents of the employment relationship, which they may
have suffered by reason of the discrimination practiced against them.
All of our employees are free to become, remain , or refrain from becoming or
remaining, members of any labor organization, except as that right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act, as amended. We will not
discriminate in regard to hire or tenure of employment, or any term or condition
of employment against any employees because of membership in or activity on
behalf of any labor organization.
HARVEY ALUMINUM (INCORPORATED),
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
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.
Employees may communicate directly with the Board 's Regional Office , Eastern
Columbia Building, 849 South Broadway , Los Angeles , California , 90014, Telephone
No. Richmond 9-4711 , Extension 1031, if they have any question concerning this
notice or compliance with its provisions