Piasecki Aircraft Corp.

National Labor Relations Board - Board Decisions

Mar 25, 1959

123 N.L.R.B. 348 (N.L.R.B. 1959)

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further finds that Respondent 's affirmative defenses as set forth in its answer are
not supported by the credible evidence.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with Parker's business affiliation and its business operations described in
section 1, above, have a close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States, and such of them as have been found to
constitute unfair labor practices tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(b)(1)(A) and (2) of the Act, the Trial Examiner will recommend
that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Since it has been found that Respondent discriminatorily conditioned the right
of Drake to obtain employment upon his production of his membership book in a
local of United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
it will be recommended that it make Drake whole for the loss of pay suffered by
him as the result of the discrimination found, by the payment to him of a sum
of money equal to the amount which he normally would have earned from April
22, 1957, the date Catron requested Drake to report for work, to the date when
Drake exhibited Respondent's May 20 letter to Parker's foreman, less his net
earnings during such period.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Robert E. L. Parker Company, Claremont, California, is, and at all times
material to this proceeding has been, an employer within the meaning of Section
2(2) of the Act.
2. Los Angeles County District Council of Carpenters is, and during all times
material to this proceeding has been, a labor organization within the meaning of
Section 2(5) of the Act.
3. By its restraint and coercion of employees in the exercise of certain rights
guaranteed in Section 7 of the Act, Respondent is engaged in and has engaged in
unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act.
4. By attempting to cause and causing Robert E. L. Parker Company and other
employers to discriminate against employees or applicants for employment, and
thus to commit an unfair labor practice as defined in Section 8(a)(3) of the Act,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(b)(2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Piasecki Aircraft Corporation and International Union, United
Automobile, Aircraft and Agricultural Implement Workers
of America , AFL-CIO, and its Local No. 840.1 Case No. 4-CA-
1496. March 25, 1959
DECISION AND ORDER
On March 19, 1958, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
1 Herein referred to collectively as the Union.
123 NLRB No. 43.
PIASECKI AIRCRAFT CORPORATION 349
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative ' action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices and recommended that the complaint be dismissed
with respect to such allegations. Thereafter, the General Counsel,
the Respondent, and the Charging Party filed exceptions to the
Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in this proceeding, and hereby adopts the findings,2 conclusions, and
recommendations of the Trial Examiner, with the following addi-
tions and modifications.
1. As described fully in the Intermediate Report, the Respondent,
in November 1956, purchased Bellanca Aircraft Corporation's New
Castle, Delaware, plant, together with its equipment and inventories.
The Respondent planned to begin operations with between 37 and
50 production employees during the week of November 25, 1956. We
agree with the Trial Examiner that the Respondent violated Section
8(a) (3) of the Act by discriminatorily refusing to hire the approxi-
mately 140 former production and maintenance employees of Bel-
lanca Aircraft Company during the period from about November 25,
1956, until approximatly March 1957, by which time the Respondent
had hired between 155 and 175 production employees at the New
Castle plant.
2. We agree with the Trial Examiner that the Respondent did
not violate Section 8 (a) (5) of the Act with respect to the office
clerical employees, whom the Respondent hired, because the evidence
is insufficient to establish that the Union represented a majority of
the four office clerical employees. We further agree with the Trial
Examiner that Respondent did not violate Section 8(a) (5) with
respect to the discriminatees in the appropriate production and
maintenance unit, because the discriminatees, none of whom were
hired, did not become the Respondent's employees within the mean-
ing of Section 8(a) (5) of the Act. We shall therefore dismiss the
2 We do not agree with, or adopt , the Trial Examiner's interpretation of the italicized
testimony of Mr. Piasecki quoted above the reference to footnote 65 of the Intermediate
Report , as referring to prior agreements to hire ". . . [the employees] . . . ." Although
if read literally , the testimony might be taken to have referred to the employees ; if read
in context with the entire record , it appears to refer to prior tentative agreements to hire
Bellanca Aircraft Company's supervisors . This correction in no way affects our ultimate
conclusions.
350 DECISIONS GF NATIONAL LABOR RELATIONS BOARD
complaint insofar as it alleges the Respondent illegally refused to
bargain on and after November 6, 1956.
THE REMEDY
Although we have found that the Respondent did not violate Sec-
tion 8(a) (5) of the Act, we shall issue a remedial order requiring the
Respondent, upon request, to bargain with the Union as the repre-
sentative of its production and maintenance employees, after offering
reinstatement to the discriminatees pursuant to the Board's 8(a) (3)
remedial order. It is clear, and we find, that the unit described in
the complaint, for which the Union was certified approximately 17
years earlier, is an appropriate production and maintenance unit.
The Union established that it represented a current majority of the
persons in this unit in November 1956. It secured newly signed
authorization cards from 138 of the 139 persons who were employed
in the unit on November 23, the last day of operation of the plant
by Bellanca. It is undisputed that the Union on several occasions
;between November 6 and 30 requested the Respondent to bargain.
As found by the Trial Examiner, the record indicates that the
Respondent originally planned to hire all of the persons in the pro-
duction and maintenance unit. Had not the Respondent later
engaged in illegal discrimination because the persons in the unit
shad demonstrated their continued adherence to the Union, the Re-
spondent would have become the employer of employees in an appro-
priate production and maintenance unit represented by the Union;
and, as such, the Respondent would have been obligated to bargain
with the Union upon request. The Respondent has thus sought to
avoid its bargaining obligation by engaging in unlawful discrimina-
tion. We therefore find that to remedy the Respondent's 8(a) (3)
violations effectively, and also to effectuate the policies of the Act,
it is necessary that Respondent be ordered not only to employ the
discriminatees and make them whole, but that Respondent also be
ordered to bargain with the Union upon request as soon as the
Respondent employs the discriminatees in the manner described in
the section of the Intermediate Report entitled "The Remedy." 3
ORDER
Upon the entire record in this proceeding and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Piasecki
3D. H. Holmes Company, Ltd., 81 NLRB 753, enfd. as mod., 179 F. 2d 876 (C.A. 5) ;
Caldarera, d/b/a Falstaff Distributing Company, 104 NLRB 760, enfd . as mod., 209 F. 2d
265 (C.A. 8). See also International Broadcasting Corporation (KWKH ), 99 NLRB 130,
reversed on other grounds , 209 F. 2d 912 ( C.A. 5).
PIASECKI AIRCRAFT CORPORATION 351
Aircraft Corporation, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in the International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, AFL-CIO, and its Local No. 840, or in any other labor
organization of its employees, by locking out or refusing to employ
any applicant for employment, or by discriminating in any other
manner in regard to their hire and tenure of employment or any
term or condition of their employment, except to the extent per-
mitted by the proviso to Section 8(a) (3) of the Act.
(b) Interrogating applicants for employment as to their union
affiliations or activities in a manner constituting interference, re-
straint, or coercion in violation of Section 8(a) (3) of the Act.
(c) In any other manner interfering with, restraining, or coercing
applicants for employment or employees in the exercise of the rights
to self-organization, to form labor organizations, to join or assist
the aforesaid Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Sec-
tion 7 of the Act, or to refrain from any or all of such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer the individuals named in Appendix A, attached to the
Intermediate Report, immediate employment at the same or sub-
stantially equivalent positions at which they would have been em-
ployed had they not been discriminated against, without prejudice
to their seniority or other rights and privileges, and make whole
all these aforesaid for any loss of pay suffered, both in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) After offering reinstatement in the manner set forth in Sec-
tion 2(a) of this Order to the individuals named in Appendix A of
the Intermediate Report, upon request bargain collectively with
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, AFL-CIO, and its Local No. 840,
as the exclusive representative of all production and maintenance
employees at the Respondent's New Castle, Delaware, plant, includ-
ing plant clerical employees, but excluding guards, nurses, telephone
operators, professional employees, draftsmen, confidential secretaries
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to department heads, office clerical employees, and supervisors as
defined in the Act.
(c) Preserve and, upon request, make available to the National
Labor Relations Board or its agents, for examination and copying,
all payroll records, social-security payment records, timecards, per-
sonnel records and reports, and all other records necessary to analyze
the amounts of back pay due.
(d) Post at its plant in New Castle, Delaware, copies of the
notice attached hereto marked "Appendix." 4 Copies of said notice,
to be furnished by the Regional Director for the Fourth Region,
shall, after being duly signed by the Respondent's representatives,
be posted by it immediately upon receipt thereof and be maintained
by it for a period of at least 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for the Fourth Region in writing,
within 10 days from the date of this Order, what steps the Respond-
ent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges that Respondent violated Section
8(a) (5) of the Act.
• In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 :
VVE WILL NOT in any manner interfere with, restrain, or coerce
our employees, or applicants for employment, in the exercise of
their right to self-organization, to form labor organizations, to
join or assist International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America, AFL-CIO,
and its Local No. 840, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain
from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership
PIASECKI AIRCRAFT CORPORATION 353
in a labor organization as a condition of employment as au-
thorized in Section 8(a) (3) of the Act.
WE WILL NOT discourage membership of our employees, or
any applicants for employment, in the aforesaid Union, or in any
other labor organization, by locking out any applicants for
employment or in any other manner discriminating against them
in regard to their hire or tenure of employment or any term or
condition of employment.
WE WILL offer to the applicants for employment who were
locked out of our plant on and after November 25, 1956, im-
lnediate employment at the same or substantially equivalent
positions at which they would have been employed had they
not been discriminated against, without prejudice to their sen-
iority or other rights and privileges.
WE WILL make whole the said applicants for employment for
any loss of pay suffered as a result of the discrimination against
them.
WE WILL, after offering reinstatement to the aforesaid appli-
cants for employment, upon request, bargain collectively with
International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, AFL-CIO, and its
Local No. 840, as the exclusive representative of all production
and maintenance employees at our New Castle, Delaware, plant,
including plant clerical employees, but excluding guards, nurses,
telephone operators, professional employees, draftsmen, confiden-
tial secretaries to department heads, office clerical employees,
and supervisors as defined in the Act.
WWTE WILL NOT interrogate applicants for employment as to
their union affiliation or activities in a manner constituting in-
terference, restraint, or coercion in violation of Section 8(a) (1)
of the Act.
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any applicant for employment
or any employee because of membership in or activity on behalf of
any such labor organization.
PIASECKI AIRCRAFT CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
508889--60-vol. 123-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management Rela-
tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Philadelphia,
Pennsylvania, from August 26 to September 17, 1957, pursuant to due notice to all
parties. The complaint, issued on June 12, 1957, by the General Counsel of the
National Labor Relations Board, and based on charges duly filed and served,
alleged that the Respondent had engaged in unfair labor practices proscribed by
Section 8(a)(1), (3), and (5) of the Act. In its answer, duly filed, the Respond-
ent conceded certain facts with respect to its interstate operations but denied the
commission of any unfair labor practices.
All parties were represented at the hearing by counsel and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce
relevant evidence, to argue orally, and to file briefs and proposed findings and
conclusions. A motion to dismiss, made at the close of the hearing by the Re-
spondent, was taken under advisement. It is disposed of as will appear herein-
after in this report. On November 22, 1957, a brief was submitted by counsel
for the Union and on November 25, 1957, a brief for the Respondent was filed
by its counsel. Both of these briefs were unusually thorough and have proved
most helpful to the Trial Examiner.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Piasecki Aircraft Corporation, a Pennsylvania corporation engaged in research
and development and the production of parts and equipment for the aircraft indus-
try, operates plants in Philadelphia, Pennsylvania, and New Castle, Delaware. In
1956, pursuant to contracts with the United States Government, it produced ma-
terial and equipment and provided services directly related to national defense
valued in excess of $100,000. During the same period it sold and shipped equip-
ment valued in excess of $50,000, to points outside the States in which its plants
are located and received gross receipts in excess of $100,000 from sales and serv-
ices to enterprises which are themselves engaged in commerce within the meaning
of the Act. On the foregoing facts, the Respondent concedes, and I find, that
Piasecki Aircraft Corporation is engaged in commerce within the meaning of the
Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO, and its Local No. 840, (hereinafter referred to
as the Union) are labor organizations within the meaning of the Act.
III. THE ALLEGATIONS AS TO UNFAIR LABOR PRACTICES AND CONCLUSIONS WITH RESPECT
THERETO
A. Introduction and sequence of events
For approximately 15 years the Union and Bellanca Aircraft Corporation had
collective-bargaining relations at the plant of the latter in New Castle, Delaware.
On October 24, 1956, Bellanca entered into an agreement with Piasecki whereby
the former agreed to sell to the latter its buildings, machinery, equipment, and
other property, as well as some 300 acres of real estate on which the New Castle
facility was situated. Piasecki also agreed to buy all the work in process as of
a date to be fixed by the parties to the contract. Bellanca agreed to assign to
Piasecki all work contracts which it presently had to the extent that such con-
tracts were assignable and to permit Piasecki to contact its customers with the
object of retaining said contracts for future delivery. Bellanca likewise agreed to
turn over all correspondence covering such contracts as were in process or to be
completed in the future and to assist Piasecki's personnel in familiarizing them-
selves with said agreements. Finally, in paragraph 13 there appeared the pro-
vision which was to become the subject of much controversy. This read as
follows:
13. At least fifteen days prior to settlement under this contract, Bellanca
shall notify all employees of the termination of their employment and in all
PIASECKI AIRCRAFT CORPORATION 355
other respects comply with the provisions of the contract between Bellanca
and Local 840 UAW-CIO in order to effectively terminate said contract and
employment of all persons covered by said contract prior to settlement. Bel-
lanca warrants that all wages and accrued vacations are or will be paid or
provided for as of the date of termination.
The existing collective -bargaining agreement then in effect between Bellanca and
the Union had, among its provisions , this term:
Paragraph (89): ASSIGNABILITY: Notwithstanding anything contained in
this Article XIV to the contrary, this agreement may be terminated prior to
the expiration date stated in Paragraph ( 86) of this Article [ i.e., June 1,
1957] in the event that the plant or business of the Company located at
New Castle , Delaware, shall be sold, assigned or transferred to a person, firm,
or corporation that is not affiliated with the Company . In such event the
Company shall notify the Union in writing at least fifteen ( 15) days prior
to the consummation of such sale, assignment or transfer.
On November 1, 1956, Bellanca sent the following letter to B. W. Bothe, assist-
ant regional director of the Union:
DEAR MR. BOTHE: Please be advised that the Bellanca Aircraft Corpora-
tion is now engaged in negotiating the sale of its real estate and certain other
assets at New Castle , Delaware. This sale will be consummated and become
effective on or about 11/23/56.
Pursuant , therefore , to paragraph 89 of the present labor agreement be-
tween the said Company and the International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America and its Local
#840, affiliated with the AFL-CIO you are hereby advised of such sale and
transfer at least fifteen ( 15) days prior thereto.
Please be advised further that pursuant to the said paragraph the said
Company now notifies said labor organization and both of them that it hereby
terminates said labor agreement effective midnight 11/23/56.
Very truly yours,
BELLANCA CORPORATION,
(S) HARRY E. BLYTHE,
Executive Vice President.'
On October 30, Piasecki wrote to all of Bellanca 's employees inviting them to
apply for work and enclosing job application blanks. In addition to all of the
questions characteristic of such a form, the latter contained the following query:
Have you been a member of a union ? --------- Which ones ? ---------
Are you now? --------- Which? ---------
During the period from November 1 to 15, Piasecki received completed applica-
tions from only about 50 percent of the 150 Bellanca employees at the New Castle
plant. John H. Manning , at the time contract administrator for the Respondent
and later the acting production manager of the New Castle plant, testified that
during this period the Company was very much concerned about the slow rate
at which these applications were being returned by the Bellanca employees. For
the first 2 weeks in November the Union had taken no position on the question of
whether the employees should file applications with Piasecki . On November 5 it
had responded to Blythe 's letter of November 1 with a letter of protest addressed
to both Bellanca and Piasecki . In relevant part, this communication read as
follows:
In view of the fact that the notice referred to in Paragraph 89 was not
given to the above unions in conformity with the agreement on behalf of the
above unions , we shall insist that the provisions of the contract be fulfilled
in every detail.
We also call your attention to the fact that the contract is open for nego-
tiations in respect to wages as of November 1, 1956, and request that Bellanca
Corporation if it is still the operator of the company , meet with us for such
purpose. However, if a bonafide sale has been made, we request that the
successor meet with us for such purpose.
1 The Respondent offered evidence that Bellanca addressed an identical letter to Lawrence
Loroni , president of Local 840 . The latter denied that he ever received such corre-
spondence . Since, for reasons set forth later in this report , I do not believe this matter
material to the issues in the present case I shall not resolve this conflict.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In any event , we request that the successor meet with us for the purpose
of collective bargaining as representative of the employees of the Bellanca
Corporation , its successors or assigns , in conformity with the requirements of
the Labor Management Relations Act of 1947.
The employees now employed by Bellanca Corporation , or on the seniority
list, and represented by the above unions are available for employment with
its successors or assigns , in accordance with the terms of the above agreement
and/or the Labor Management Relations Act of 1947.
The letter was signed by Bothe and Loroni.
On November 13, the Union wrote the Respondent a supplement to its earlier
request for a meeting . In this it stated that the Union welcomed the new man-
agement , that all the members , both those presently employed by Bellanca and
those on a laid-off status , were available for employment by Piasecki as the suc-
cessor to Bellanca and that in making the transition the Union would insist that
the seniority , conditions of employment , and other status and benefits of such
employees should not be diminished . The letter closed with an invitation to the
Respondent that it send representatives to a negotiating conference between the
Union and Bellanca on November 16. This last -mentioned meeting was held on
the scheduled date at the New Castle plant . Piasecki , however, did not attend
and made no response to any of the letters from the Union.
About November 14, Bothe met with the officers of Local 840 and those present
concluded that the Union should assist its members in completing the Piasecki
applications . Accordingly , on the following day the Union obtained permission
from Bellanca to have a photographer take such pictures of the employees as were
needed in connection with the application form and to have the union officers
and committeemen assist the members in completing the questionnaires. On No-
vember 15 to 16 the Union also had its members sign an additional letter of
application which read as follows:
PIASECKI AIRCRAFT CORPORATION,
International Airport,
Philadelphia , Pennsylvania.
DEAR SIRS : This is to advise you that I am applying for employment with
your Corporation at your New Castle plant.
I shall be available for such employment with you on and after November
24, 1956.
I am submitting under separate cover (or have previously submitted) your
standard employment application form, which was mailed to me by your
Corporation.
My submission to you of such application form for employment by your
Company is not to be construed as any waiver by me of any rights which
have accrued to me or will accrue to me under the June 1 , 1955 contract by
and between the International Union, United Automobile , Aircraft and Agri-
cultural Implement Workers of America and its Local No . 840 and the Bel-
lanca Corporation and/or the Labor Management Relations Act of 1947.
Signature -------------------- ---------
Home Address -------------------------
City and State _________________________
Bellanca Corp . Badge Number -----------
By November 17, 135 employees had signed copies of the above letter.2 On that
date, the Union forwarded all of these to Piasecki with a covering letter which
read:
PIASECKI AIRCRAFT CORPORATION
DEAR SIRS: In a meeting between representatives of our Union and the
Bellanca Corporation held Friday , November 16, we were officially advised
for the first time that commitments and arrangements for your corporation
to take over the physical assets of Bellanca's New Castle facility , including
real estate , machinery , equipment , supplies and certain work in progress, have
been in existence since approximately November 1 . We were further in-
formed that you will take physical possession on November 23, 1956.
'Therefor`e, we' are transmitting to you herewith , 135 letters applying for
employment at your New Castle, Delaware plant which have been individually
2 Three employees , namely, Ann Chirco, Rose DiPetrapaul , and Estorina Susi, refused to
sign these forms.
PIASECKI AIRCRAFT CORPORATION 357
,executed by the members of Local 840 currently employed by the Bellanca
Corporation at the New Castle facility. An alphabetical list of the senders
of such letters is also attached for your convenience of reference. All of
these employees will be available for such employment with you on and after
November 24, 1956.
In line with our letter to you on November 13, 1956, wherein we stated
our intention to cooperate with you as the successor management of the New
Castle plant, we have also urged our membership to complete and return to
you your standard "application for employment form." Your Corporation
had mailed such forms to our members at Bellanca on or about October 30,
1956. We trust you have received same. Further, in view of the information
given to us by Bellanca, we desire to meet with your representatives on either
Tuesday, November 20 or Wednesday, November 21. In such meeting, we
desire to discuss your immediate and future manpower requirements at the
New Castle plant and make appropriate arrangements for the recall of Bel-
lanca employees to such jobs in accordance with their seniority as established
in the Agreement between Bellanca Corporation and the International Union,
UAW and its Local 840, dated June 1, 1955, and also to establish a basis
for further collective bargaining between the parties.
Will you kindly advise us promptly as to the date, place and time you will
find most convenient for such meeting?
The letter was signed by Bothe. It was received by Piasecki on November 19,
but it was never acknowledged by that company. Frank N. Piasecki, president
of the Respondent, testified that prior to this time he had heard that the Union
had instructed its members not to send in their applications. According to him,
however, receipt of the foregoing correspondence was the first concrete evidence he
had that the Union had changed its position and was then encouraging its mem-
bers to file their applications with the Respondent. In addition to the foregoing,
from November 17 to 24 approximately 75 employees returned to Piasecki com-
pleted job applications, the forms for which they had received from that company
-earlier in November. Included in the group who returned their applications at
this time were all of the officers of Local No. 840.3
Early in the week of November 19, Bellanca gave termination notices to all of
its employees, effective on November 23. On this latter date Bellanca and Piasecki
effected a closing of their agreement for the purchase and sale of the New Castle
plant. In the meantime, about November 16,4 the Respondent decided that all
applicants for jobs at its new plant would have to be interviewed on November 25.
During the course of the next week it sent invitations to attend these interviews
to all of the Bellanca employees who had returned a completed application form
prior to November 15.5 No such invitations, however, were sent to the Bellanca
employees who had filed their applications subsequent to November 16 and after
the Union became active in encouraging them to do so. On November 24,
Piasecki advertised in the two principal Wilmington papers that it would interview
3 These were Lawrence Loroni, president, Sam Hinger, vice president, Dlatteo Canne
Longo, financial secretary, and Wanda Giammateo, recording secretary.
This finding is based upon the testimony of Mr. Piasecki.
This letter read as follows :
NOVE MBER 16, 1956.
This is to acknowledge receipt of your application for employment by Piasecki
Aircraft Corporation.
Our representatives would like to review your -application and talk to you in the
lobby of the New Castle Plant, Delaware , any time between noon and 4:30 p.m.,
Sunday, November 25, 1956.
A photographer will be present to take a picture of you that is required for se-
curity clearance . Please bring your birth certificate and/or other proof of citizenship.
Please present this letter to our representative when you come for -the interview.
If the above scheduled interviewing period is inconvenient to you, please call
Philadelphia , Saratoga 7-9750, Ext . 12, and ask for Mr. Franklin Moser, Director of
Industrial Relations.
Sincerely yours,
PIASECKI AIRCRAFT CORPORATION,
(S) F. N. Piasecki,
F. N. PIASECKI,
President.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job applicants in the New Castle plant the next day. Substantially the same type
of advertisement appeared in the Philadelphia Sunday Bulletin and the Philadelphia
Sunday Inquirer on November 25.6
On the morning of the latter date a delegation of Piasecki staff personnel
arrived at the New Castle plant to conduct the interviews which began about 12:30
p.m. that day. During the course of the afternoon, Gustave Pasquarella, plant
superintendent for Bellanca, and all of the other supervisory personnel at the
former Bellanca plant, were hired by Piasecki. Pasquarella was retained as plant
superintendent and the other Bellanca supervisors were hired to perform the same
or similar functions as they had had with the former company. Sometime during
the latter part of the day, five of the Bellanca clerical employees, Ann Chirco,
Theresa Sammoni,7 Edna F. Brown, Rose DiPetrapaul, and Elizabeth Black, as
well as the janitress, Estorina Susi, entered the plant for an interview and were
hired.8 About 17 non-Bellanca employees were interviewed by the Piasecki group
but none of these were employed.9 Other than guards and supervisors none of
the production and maintenance employees 10 who were at work for Bellanca the
previous week were either interviewed or hired on November 25.
Throughout the afternoon a large crowd of 60 or more former Bellanca pro-
duction and maintenance employees 11 was gathered at the plant entrance. Included
in this group were B. W. Bothe and Charles Hypes who were then representatives.
of the International Union.12 Bothe, Hypes, and many Bellanca employees were
called by the General Counsel. These witnesses testified that whenever they sought
to be interviewed that afternoon they found the plant door locked. On the other
hand, all witnesses for the Respondent testified that throughout the afternoon the
door was not locked and that all who sought an interview that day were free to
6 These advertisements read as follows :
Aero Hello . . . from your New Neighbor
The Delaware Division of Piasecki Aircraft Corporation
- Vertical Lifts Pioneers -
has just bought the plant previously occupied by Bellanca Aircraft. There is an
Opportunity for You in this rapidly expanding industry. We invite you to join the
men whose achievement records include many of today's world-wide standards--and
who are working on tomorrow's.
We have immediate openings for top grade men in the following :
Aeronautical Engineers
Engineering Calculators
Detail Design Draftsmen
Detailers
Certified Arts & Combination Aircraft Welders
Machinists
Sheet Metal Bench & Assembly Mechanics
Aircraft Spray Painters
Aircraft Riveters
Plating & Process Men
Hydro-Press Operator
Press-Brake & Yoder Hammer Operator
Tool & Dye Maker
We will start interviewing applicants on SUNDAY, NOVEMBER 25TH betweew
noon & 4:30 p.m. in the lobby of the New Castle Plant. Weekday interviews from,
10 a.m. to 5 p.m.
. . . or, if you live close to Philadelphia, stop in at our main office.
PIASCCKI AIRCRAFT CORPORATION.
X x x x x
7 This individual's name is also spelled "Sammons" in the transcript.
A Mrs. Groot, another Bellanca clerical employee who was interviewed that afternoon,.
was not hired because she was not an American citizen.
9A list of these applicants, received upon stipulation of counsel, contains 17 names.
However, Pasquarella testified that in addition to these individuals one other, a Martin
Baumgardt, was not only interviewed but hired. According to Pasquarella, Baumgardt
had once been an employee at the Bellanca plant for a short while some time before.
10 Apart from Susi, the janitress , mentioned above.
u This figure is based upon a stipulation of the parties.
12 Bothe and Hypes had once been production workers at Bellanca and were still carried
on the personnel records of that company as being on union leave without pay.
PIASECKI AIRCRAFT CORPORATION 359
enter the plant. The conflicting testimony on this point will be resolved later in
the report. According to Mr. Piasecki, the Company had anticipated that over
100 Bellanca production and maintenance employees would be interviewed on
November 25. Manning testified that the results of the interviews were "very
disappointing" because none of the Bellanca production employees appeared and
that all the others who came to be interviewed were not qualified for the Re-
spondent's operations. He stated that because of this fact the Company arranged
to conduct interviews on the following day.
On November 26, at 7 a.m., the regular starting time, some 130 Bellanca pro-
duction employees appeared at the plant, dressed in their work clothes. This was
in accord with a union resolution adopted at a meeting held about November 19
at which the members had voted that if the Respondent did not reply to their
applications before November 26, they would report to the plant on that day at
their customary starting time. The General Counsel's witnesses testified that they
had done so in order to obtain employment, if permitted to enter the factory,13
and, in any event, by their presence at the plant and their availability, forestall
any claim by the Respondent that they had refused to report for work and had
thereby breached their collective-bargaining contract. Both Loroni and Bothe
testified that about 7:30 that morning they tried to open the plant door but that
it was locked. The Respondent offered no testimony to the contrary. Later that
morning, Major Casanove Seitz, of the Delaware State Police, arrived at the plant
entrance and announced that he wanted to meet with representatives of both the
Company and the Union. He requested Bothe to accompany him into the plant.
The latter asked that Gerald Knierieman, one of the employees, be included in any
such conference and Seitz agreed. With the police major leading the way, the
trio was admitted to the plant lobby where they were met by Mr. Robert Moser,
the Respondent's director of industrial relations. Major Seitz asked to see Mr.
Piasecki. Moser made a telephone call and then started to escort Seitz and the
two others to an office in the plant. At that point Pasquarella came up to the
group and, after Moser engaged him in conversation, the latter announced that
he had just learned that Bothe and Knierieman were union representatives instead
of plainclothes policemen as he had assumed and that as a result he could not
take them to Mr. Piasecki's office. The group then returned to the lobby
where Moser made some more phone calls. Thereafter he assured Major Seitz
that Respondent's president would confer with him individually but would not
do so with any union representatives present. When it became apparent to Seitz
that those were the only conditions under which he could meet with Mr. Piasecki,
he left the plant.14 Bothe left at the same time but before his departure he told
Moser that the Union desired to meet with the corporate representatives, to "go
over your wishes and desires and intentions about the former Bellanca employees.
They are all outside the plant. They are offering themselves for employment.
They want their jobs and we would like to get this situation clarified." 15 Moser
stated that he would take the matter up with Mr. Piasecki and let him know.
Later that day when Bothe telephoned the plant to contact Moser, the switchboard
operator, Miss Regina Keenan, told Bothe that Moser would not accept the call.is
That evening the Union called a meeting at which its members, alleging that they
had been locked out of the plant, voted to establish a picket line about the Re-
spondent's premises and to file unfair labor practice charges with the Board.17
13 Gannon, a witness who impressed the Trial Examiner as among the most credible of
any who appeared throughout the entire hearing, testified to this event as follows :
Well we were there. We were ready for them to call us in to go to work, call us in
for an interview, call us in for anything they wanted to talk about. But nothing
happened. We stood there in line, I guess maybe an hour, maybe more. Then we
stood around, waiting to see what would transpire, if anything.
14 The foregoing finding is based on the testimony of Bothe, Knierieman, and Pas-
quarella. It was also corroborated by Mr. Piasecki, who testified that, when he learned
that the State Police would not confer except in a joint meeting with the Union, he
refused to meet under such conditions.
15 The quotation is from Bothe's credible, undenied testimony.
1° The foregoing findings are based upon Bothe's testimony which was both credible and
undenied. Mr. Piasecki testified with respect to this incident that he heard that a union
representative had called but that he felt that the Company had made its position clear,
that it wanted to interview the people, and that, insofar as he was concerned, "the union
was an obstruction in this problem and not an aid."
17 This picketing started shortly after November 26 with the pickets carrying signs
which read "Lockout-unfair labor practices."
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The picketing started about November 28 and at the time of the hearing it was
still in progress.
On November 27 the Union wrote to the Respondent. In this letter it pro-
tested the Company's refusal to recognize the Union as the exclusive bargaining
agent at the New Castle plant. The letter also stated:
We are further unable to understand your seemingly unlawful attempt to
undermine the union in derogation of its position as exclusive representative
by dealing directly with individuals represented by the union through per-
sonal solicitations, mail and newspaper publications.
You are hereby advised that those individuals formerly employed by Bel-
lanca Aircraft Corporation whom you have considered for return to their
work with your company on condition that they relinquish their right to be
represented by the union as well as other employees in the appropriate unit
have designated the union as his or her exclusive collective bargaining repre-
sentative in dealing with your company.
The letter closed with a renewal of the Union's request for recognition and a
demand for a bargaining conference at the earliest convenience of the Respondent.
The latter made no response to this correspondence.18 On November 30 the Re-
spondent sent the following letter to all of the former Bellanca employees:
DEAR AIRCRAFTER: While we have your application for employment, you
have not appeared for an interview. We are conducting interviews at our
Philadelphia International Airport plant where you can appear any day be-
tween 9:00 A.M. and 4:00 P.M.
We will be glad to give you consideration for immediate employment at
New Castle where, as you are aware, certain individuals congregate before
the gates of the plant. None of these persons are our employees.
This is an opportunity for you to become a member of Piasecki Aircraft
Corporation, which you must be, before anyone can represent you in bar-
gaining regarding wages, hours, and other working conditions in our plant.
Our company must continue to employ workers in order to grow and sup-
ply jobs and security for our employees.
Those who are employed by us now, will receive our benefits which are
enclosed, and their employment will date from the day of hiring.
Let's go!
Sincerely yours,
PIASECKI AIRCRAFT CORPORATION,
(S) Franklin W. Moser,
FRANKLIN W. MOSER,
Director of Industrial Relations.
Likewise on November 30, the Union wrote to Piasecki. This time it renewed its
request for a bargaining conference and in proof of its claim to a majority it
submitted, as an enclosure to the letter, photostatic copies of 143 authorizations
signed by Bellanca employees 19 along with an offer to produce the originals in
the event the Respondent desired further proof of their authenticity.
After the picketing began, the Respondent continued to advertise for employees
in the newspaper. Moser testified that in the months following November 25,
Piasecki "had ads in the paper all the time for help" and "we had openings in
almost every category." After November 25, however, none of the former Bel-
lanca employees came into the plant for an individual interview,20 and the Com-
pany maintained its adamant refusal to meet with the Union. In the meantime,
the Company endeavored to operate the New Castle plant. Early in December
it had about 13 production employees at work. Later that month the number
rose to about 25. In February and March a peak of from 180 to 200 production
and maintenance personnel was reached. At the time of the hearing the number
was down to about 100.21
18 Mr. Piasecki testified that he saw no need for any such meeting as the Union had
requested in this letter.
1PAIl of ,these were signed by the employees on November 19 or 20, except for two
which were signed on November 21, and two which were undated.
w Moser testified that 3 to 4 months after November 25, a Bellanca employee came to
the Philadelphia headquarters and that he had offered him a job but the individual never
reported for work. Moser. however, could not recall the name of this person.
21 These figures are based on the testimony of Gustave Pasquarella. The latter also
testified that of the first 125 employees at the New Castle plant, approximately 25 were
transferred from the Respondent's Philadelphia plant.
PIASECKI AIRCRAFT CORPORATION 361
B. The successorship issue and the allegations as to Section 8(a) (5); conclusions
with respect thereto
No evidence was offered at the hearing of any corporate affiliation between
Piasecki and Bellanca and the General Counsel conceded that he had no proof of
any such connection . It is the contention of the latter, however , that in the pur-
chase of the Bellanca plant , Piasecki took over the "employing industry " (N.L.R.B.
v. Arthur J. Colten et al., d/b/a Kiddie Kover Manufacturing Company, 105 F.
2d 179 (C.A. 6)), and as such assumed the obligations of Bellanca to bargain
with the Union . The Respondent , on the other hand, denies completely the
strength of any such argument . To that matter we will now turn.
Late in October , when Bellanca and Piasecki agreed upon the terms for the sale
of the New Castle plant , Bellanca had a work force of approximately 150, in-
cluding supervisory personnel . At that time it was engaged in work on contracts
with about 11 different customers . These were referred to at the hearing as con-
tracts with the following : Dover Air Force Base, American Foundry and Machine,
Aurora Casket Company, Lockheed Aircraft, United States Chemical Corps, Mel-
par, Glenn L. Martin , Bowser, Hamilton Standard , General Electric, and Fairchild.
Prior to November 23, Bellanca completed the Dover , American Foundry and
Machine, and Aurora jobs . Angelo Baldini , a director , acting secretary and
assistant treasurer for Bellanca , testified . that these projects represented a workload
for from 10 to 20 employees . During the same period , and before Bellanca
ceased operations , Lockheed and the United States Chemical Corps canceled their
contracts . Both were small projects with a total of about eight men working on
them . 22 Of the remaining jobs-Martin , Melpar, General Electric, Bowser, Ham-
ilton Standard , and Fairchild-Piasecki succeeded in obtaining renegotiated con-
tracts from all of these customers except Fairchild . In closing the purchase of
the plant from Bellanca, the Respondent bought and took over all the work in
process on the Martin , Melpar, Bowser, Hamilton Standard , and Fairchild projects.
Because of a shortage of materials the work on the General Electric job was
halted in November . As a result there was no work in process on this contract
when Piasecki took possession of the plant. On March 18, 1957 , Piasecki re-
negotiated this contract with General Electric and work on it was then resumed.
According to the credible testimony of Angelo Baldini , the Martin job was the
largest in the plant. He also stated that this project, along with the Melpar and
Fairchild jobs, required more than 50 percent of the direct labor employees. In
addition to the direct labor to be performed on these contracts , indirect labor
employees , of course , such as supervision , inspection , maintenance , shipping, re-
ceiving, and others in the same category , also had to be allocated to these projects.
Early in December , work on the Melpar job, begun by Bellanca , was resumed by
Piasecki . Similarly , sometime in January, the Respondent resumed work on the
Martin contract . Pasquarella , the plant superintendent , testified that this job was
renegotiated by Piasecki shortly after November 26 but that the renewal of work
on it was delayed until the following January because of the difficulty the Respond-
ent had in building up a working force. Piasecki was unable to renegotiate only
one contract on which Bellanca had been working and which the Respondent
desired to obtain. This was the Fairchild job. The reasons for this were not
fully explained at the hearing . There was substantial evidence that when Piasecki
took over the New Castle plant it expected to obtain this work . Baldini testified
that the Respondent paid Bellanca from $20,000 to $30 ,000 for the work in
process on the Fairchild contract and, further , that all the jigs and fixtures needed
for its completion were left in the plant rather than being returned to the United
States Air Force as was customary when a contract was completed or terminated.23
The Respondent , however, never obtained this contract and during the latter part
of December 1956, Fairchild removed from the plant all jigs and fixtures needed
on this job.
The only new business that Piasecki received and to which the record refers
involved Kellet Aircraft Corporation , Hamilton Standard , and certain experimental
work for vertical takeoff aircraft . These jobs were started in January 1957. Pas-
quarella testified that all of them required the same skills as those possessed by
the Bellanca employees except for one phase of the experimental work that neces-
r3 This total is based on the testimony of Baldini and Matteo Canne Longo , the latter
being production coordinator for Bellanca . According to Baldini there were from three to
five employees at work on the Chemical Corps job . Canoe Longo testified that there were
only two to three employed on the Lockheed project.
23 The jigs and fixtures were owned by the Federal Government.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sitated the use of loft men. According to Pasquarella , this particular job needed
nine loft men and four template makers , and although Bellanca had the latter
personnel among its employees it did not have any loft men.
Early in November the Respondent sent Manning to the New Castle plant.
Bellanca assigned him an office on the top floor of the factory and from then
until November 21, Manning spent approximately 50 percent of his time at the
plant. According to Manning , his function at that time was to prepare an analysis
of Bellanca 's current contracts and make a report thereon to the Piasecki staff.
After he had done this , the Respondent instructed Manning, who was to be the
acting production manager at the new plant , to be prepared to complete the
Melpar, Martin, and Fairchild contracts . In accordance with this order , Manning
prepared an estimate of the number of employees that would be needed on
November 26. Manning testified that he concluded that to be prepared for opera-
tions on November 26 the Respondent would need from 37 to 50 of the Bellanca
production workers. In arriving at this estimate he conferred with Pasquarella
who was still the plant superintendent for Bellanca . The latter testified that he
told Manning at the time that his estimate was too low and that to do the jobs
in question would require about 50 percent of Bellanca 's work force or about 60
people. Baldini testified that during this period Manning told him that Piasecki
intended to hire all personnel then in Bellanca 's employ, and that shortly after
Piasecki took over the plant the number of employees would be doubled or
tripled.24
In the Bellanca plant, Pasquarella was the superintendent in charge of the
manufacturing section. The foremen of the machine shop ,25 sheet metal shop,26
weld shop,27 and the Melpar job 28 reported to him. In addition , Pasquarella was
-directly responsible for the paint shop employees and all the maintenance person-
nel. Various other departments reported to Plant Manager Henderson. These
were the inspection department under William Myers; the toolroom under Robert
Willey; the purchasing department under Albert Ryan; the industrial engineering
section under Edward Bukowski ; and other sections such as those for production
control and payroll accounting.29
After the Respondent took over the New Castle plant , the latter was known
as the "Delaware Division of the Piasecki Aircraft Corporation " and certain func-
tions such as purchasing , engineering , estimating , tool designing , part of industrial
engineering , and part of maintenance were handled by the Philadelphia headquar-
ters . On the other hand, when the New Castle plant reached its peak production
in late February or early March 1957,30 it had a machine shop with machinists,
bench fitters , assemblers , heat treaters and related skills, a sheet metal shop, a
weld room, a Melpar section , and a paint shop. It also had a toolroom, main-
tenance personnel , and inspection employees . Bellanca foremen and department
heads such as Mines, Chirco , Caruso , Di Mauro, Myers , Willey , Ryan, and
Bukowski were all hired by Piasecki . The last three named , who headed depart-
ments or sections which were to operate out of the Philadelphia headquarters, were
given comparable positions there . Willey , an industrial engineer and the head of
the Bellanca toolroom , became an assistant to Piasecki's industrial manager; Ryan,
purchasing agent for Bellanca, was employed by the Respondent as its material
control man ; and Bukowski , Bellanca 's industrial engineering head, became a
member of Piasecki 's production planning group . Merrill Bowden , who had been
with Bellanca as the project engineer or coordinator on all the Melpar con-
tracts,31 was employed by Piasecki to continue in the same job for the Respondent.
There is no evidence that Piasecki placed any of the supervisors on its payroll prior
to November 26. On the other hand, there is evidence that the Respondent had
assured the Bellanca supervisory hierarchy before the plant closed on November
23 that they would all be hired. Manning testified that while he was at the plant
24 This included all of the Bellanca supervisory personnel , according to Baldini.
25 This shop, under Clarence Mines as foreman , consisted of two departments which did
machine work , bench fitting , heat treating , and related jobs.
26 The sheet metal shop foreman was Martin P. Chirco.
n James Caruso.
28 Joseph Di Mauro.
29 There was also a very small plastics department with two employees, one of ahem in
charge and the other a laboratory assistant . This department completed the Aurora
Casket contract , its only project prior to November 23, and its work was not continued
by Piasecki.
3OWhen it had approximately 200 employees.
'a These involved the construction of trailers and cockpit simulators.
PIASECKI AIRCRAFT CORPORATION 363
during the middle of November he conferred with Pasquarella, Willey, Bowden,
Bukowski, and Ryan as to their willingness to work for Piasecki.32 Although
Manning testified that these men were not actually hired until November 25, at
which time they were interviewed by Moser and his associates, it is obvious, at
least as to Pasquarella's employment, that little remained to be done on this latter
occasion. The application Pasquarella filled out is dated November 10, and con-
tains a notation, entered shortly thereafter in Manning's handwriting, that the
applicant was to be hired as "Shop Superintendent."
Two of the Respondent's witnesses 33 testified that prior to November 26 the
Piasecki organization did not take over control of production in the New Castle
plant. There was credible testimony, however, that the Respondent's control over
the purchase of materials at the Bellanca plant began several weeks before this
latter date. Thus, Matteo Canne Longo, production coordinator for Bellanca,
testified that about November 2 he was called into the office of Henderson and
Ryan, Bellanca's plant manager and purchasing agent, respectively, and there told
that effective immediately all purchasing was to be done directly through Piasecki's
Philadelphia office. Thereafter a copy of all requisitions which Canne Longo and
Ryan prepared was supplied to Manning. At the end of each day the latter
brought those copies back to Philadelphia where the Respondent's purchasing
-department under James Gukas, the purchasing agent, and William Collins, his
assistant, handled them from that point forward. Canne Longo testified that
throughout the month of November and until Bellanca ceased operations he had
frequent, daily, telephone conversations with both Gukas and Collins about these
matters. He further testified that many of these conversations concerned purchase
order problems connected with obtaining materials for the Melpar, Martin, and
Fairchild jobs.34 Moreover, when these supplies arrived at the New Castle plant
they were on Piasecki's purchase orders.35 According to Canne Longo, during the
first 3 weeks of November, Piasecki trucks arrived at the New Castle plant every
day with work that required magnafluxing,36 painting, inspecting, sandblasting,
plating, and other processing.37
In opposition to the General Counsel's argument that Piasecki must be con-
sidered a successor to Bellanca, the Respondent contends that apart from the total
.absence of any corporate relationship between seller and buyer the latter is an
entirely different type of concern and operates in an entirely different type of
field from Bellanca. Thus, Mr. Piasecki testified that the Respondent is "an
industrial operation in the aeronautical field, dealing with aircraft components
and designs." According to him, at the Philadelphia plant the Company's opera-
tions covered three categories. He estimated that 50 percent of the work there
consisted of the submission of designs to the United States Government followed
by designing, tooling, development, creating the first prototype and testing thereof.
About 25 percent of its operations involved the overhaul and repair of work for
the Government or the construction of pieces or components for the Government.
The other 25 percent of the Respondent's work consisted of contracts with other
companies for components or the design and manufacture thereof. Mr. Piasecki
further stated that the Company's objective in purchasing the New Castle plant
was "to increase our volume of business and our potentiality for obtaining business
so that we could increase our annual sales volume to cover our overhead." This
testimony as to the objectives of the purchasing company must be considered in
the light of the above findings as to the facts with respect to the actual changeover
,of the New Castle plant from Bellanca to Piasecki. From these it will be seen
that the Respondent endeavored to complete, with few exceptions,38 all the con-
33 Manning testified that his conferences with these men were held when they were off
duty and with the permission of Harry E. Blythe, vice president and general manager
of Bellanca.
33 Manning and Pasquarella.
as As to these telephone calls, Canne Longo testified, without contradiction
Commander Manning authorized the telephone operator-authorized me to take what-
ever calls were necessary in relation to these jobs, to these materials, to these short-
ages, and cleared my phone calls to Jim Gukas or Bill Collins-whoever or whomever
I can speak to at Piasecki at Philadelphia.
35 Canne Longo's testimony in this connection was corroborated by Albert Lancaster,
chief receiving clerk for Bellanca.
3e This was a magnetic particle inspection process.
37 This testimony was corroborated , in part, by Pasquarella , who stated that from
November 1 to 21 the plant did some small jobs for Piasecki.
as Such as the Lockheed and Aurora type contracts.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tracts which Bellanca had been unable to finish. Piasecki purchased most of the-
work in process and then endeavored to renegotiate all the uncompleted contracts.
with Bellanca's customers. Although some of the nonoperative departments such
as purchasing, engineering, and tool designing were moved to Philadelphia, the
production departments such as the machine shop, weld room, paint shop, and
related sections in the Bellanca plant were left largely intact. The entire Bellanca
supervisory hierarchy, with the exception of the corporate officers, was hired and,
as seen from the findings above, it was plainly the plan of the Piasecki manage-
ment to hire most, if not all, of the rank-and-file production and maintenance
workers in the Bellanca plant. The only testimony in the record as to the new
work obtained for the plant indicates that the former Bellanca personnel were
able to handle all of it, except for that in one category which involved the use
of loft men. Admittedly, Bellanca had none of these on its payroll at the time
of the changeover. That the operations of the plant under Piasecki were very
similar to those when it was under Bellanca's management is manifest from the
testimony of Gustave Pasquarella. This witness had been shop superintendent for
Bellanca over a long period of time and was hired by Piasecki for the same posi-
tion. At the hearing he was asked whether he needed any instructions as to
what he should do when he took over this position for the new management. He
answered in the negative and stated that no one told him what his duties were.
In explanation of this he added that he did not "think it [the job of superin-
tendent] changes from one aircraft factory to another . ." and that, as a result,
he needed no instructions, since "As a superintendent I knew what I had to do."
The Company's plans for the New Castle plant, as outlined by Mr. Piasecki, would
have necessitated a considerable change from the type of operations conducted by
Bellanca. However, from the findings set forth above, as to the actual workload
at that plant subsequent to November 26, it is apparent that the Respondent's
operations there were substantially similar to what they were under Bellanca.
The argument of the General Counsel and the Union that Piasecki was a suc-
cessor to Bellanca is based on N.L.R.B. v. Arthur J. Colten et al., d/b/a Kiddie
Kover Manufacturing Company, 105 F. 2d 179, 182-183 (C.A. 6), and related
cases. In Colten the original respondents constituted a copartnership which ter-
minated as an entity upon the death of one member. The surviving partner argued
that since all the employees were employees at will, they ceased to be employees
upon the death of the partner, without regard to the existence of a labor dispute.
The court rejected this argument and, in language that has been quoted frequently
since, Judge Simons stated that "It is the employing industry that is sought to be
regulated and brought within the corrective and remedial provisions of the Act
in the interest of industrial peace. . It needs no demonstration that the strife
which is sought to be averted is no less an object of legislative solicitude when
contract, death, or operation of law brings about change of ownership in the
employing agency. . . . It would be an implausible contention that the death of
a partner subject to restraint relieved survivors of its burdens." Ibid. at 183. Sub-
sequent decisions of that court have followed the holding in the Colten case.
N.L.R.B. v. Fred P. Weissman Co., 170 F. 2d 952 (C.A. 6), cert. denied 336
U.S. 972; Dickey v. N.L.R.B., 217 F. 2d 652 (C.A. 6). The decisions in other
courts of appeals are in accord with the foregoing. In N.L.R.B. v. Lunder Shoe
Corp., 211 F. 2d 284 (C.A. 1), subsequent to a consent election at the Mitchell
Shoe Company, in which the employees voted for a union, Mitchell sold out to
Lunder. The latter refused to bargain with the union on the ground that after
its purchase of the business there was insufficient evidence of the union's majority
status. In sustaining a Board finding that Lunder, by refusing to bargain with
the union, had violated Section 8(a)(5) of the Act, the court stated: ". . . it is.
well established that a mere change of employers alone is not sufficient to nullify
the certification of the employees' representative. . . . In the absence of evidence
of a substantial change in the nature of the employee-employer relationship there
is `no reason to believe that the employees will change their attitude merely be-
cause the identity of their employer has changed. . . .' [Citing N.L.R.B. v. Armato,
199 F. 2d 800, 803 (C.A. 7).] If the `employing industry' remained essentially
the same after the transfer of ownership, Lunder is bound by the Union certifica-
tion .... [citing Colten, supra]." Ibid., at 186. However, in the cases relied on
by the General Counsel and the Union there was present an identity of parties
in both the predecessor and the successor,39 the labor organization at the prede-
39 E.g., N .L.R.B. v. Colten , supra ( dissolution of a partnership with one of original
partners continuing the business ) ; Northwest Glove Co ., Inc., 74 NLRB 1697 (one of the
original partners in predecessor organized successor corporation) ; Oriole Motor Coach
PIASECKI AIRCRAFT CORPORATION 365
,cessor was certified by the Board less than a year before the sale or transfer of
the plant to a successor ,40 or the successor continued in the same business at the
same location with an assumption of liabilities and a transfer of intangibles such
.as goodwill or a trade name.41 Here there was no identity of the parties as
between Bellanca and Piasecki , nor was there a recent certification of the Union.
Moreover , although there was a transfer of the supervisory personnel and much
of the work in process , there was no assumption of liabilities nor was there a
transfer of a trade name or goodwill . For these reasons I conclude and find that
Piasecki was not a successor to Bellanca within the meaning of the Act. Cf. Her-
man Loewenstein , Inc., 75 NLRB 377, 379-380 ; Juneau Spruce Corporation, 82
NLRB 650, 658-659.
The General Counsel alleged that there were two appropriate units in the New
Castle plant , one consisting of the office clericals 42 and the other consisting of
the production and maintenance workers.43 These units had been established at
the Bellanca plant pursuant to consent election agreements , the first in December
1941 ( Bellanca Corporation , Case No. IV-R-799 ) and the second in April 1942
(Bellanca Corporation , Case No. IV-R-888),44 and they are of the type which
the Board has found appropriate in numerous cases involving the aircraft industry.
For this reason and in the light of the earlier findings herein with respect to the
organization of the plant under the Respondent 's management , it is my conclusion,
and I find, that these two units have been appropriate at all times material herein.
It is undisputed that the Union requested recognition and a bargaining con-
ference with the Respondent on several occasions on and after November 26 and
that the Respondent declined to recognize or to meet with the Union . By letter
on November 30, the Union renewed these demands and enclosed photostats of
143 authorizations signed by Bellanca employees on or about November 20.
There were 139 employees in the production and maintenance unit on November
23 when Bellanca ceased operations . Of this number , 138 had signed authoriza-
tions designating the Union to represent them.45 On these facts the General
Counsel and the Union allege that the Respondent violated Section 8(a)(5) of
the Act. Since , however, I have already found that the Respondent was not a
successor to Bellanca and there was no proof that the Union represented a
majority of the employees on the Respondent 's payroll on and after November 26,
1956, Piasecki was not under an obligation to recognize the Union and bargain
Lines, Inc., 114 NLRB 808 (integration of predecessor 's operation by general manager
who purchased successor ) ; and N.L . R.B. v. J. TV. Rex Co., 243 F. 2d 356 ( C.A. 3) (officers
and stockholders same in both predecessor and successor corporation ). See also N.L.R.B. v.
Adel Clay Products Company, 134 F . 2d 342 (C.A. 8) ; N.L.R.B. v. O 'Keefe and Merritt
Manufacturing Company, 178 F. 2d 445 (C.A. 9) ; Bethlehem Steel Company v. N.L.R.B.,
120 F . 2d 641, 650-651 (C.A., D.C.) ; N.L.R.B. v. Krimm , 203 F. 2d 194 , 196 (C.A. 2) ;
N.L.R.B. v. Somerset Classics, Inc., 193 F. 2d 613 , 614, 615 (C.A. 2) ; N.L.R.B. v. Con-
denser Corporation , 128 F. 2d 67, 71-72 (C.A. 3 ) ; and N.L.R.B. v. Concrete Haulers, Inc.,
212 F. 2d 477 , 479 (C.A. 5).
40E.g., N.L.R.B . v. Armato, 199 F. 2d 800 ( C.A. 7) ; N .L.R.B. v. Lander Shoe Corp.,
211 F . 2d 284 (C.A. 1) ; N.L.R.B. v. J . TV. Rex Co ., supra ; see also Boyce Wallace et at.,
d/b/a Investment Building Cafeteria , 120 NLRB 38.
41 E.g., Cruse Motors, Inc., 105 NLRB 242; N.L.R.B. v . J. TV. Rex Co ., supra ; cf. also
Symns Grocer Co., 109 NLRB 346 , and N.L . R.B. v. Birdsall-Stockdate Motor Company,
208 F . 2d 234 '(CA. 10).
40 The description of this unit, as alleged in the complaint , is as follows
All office clerical employees at Respondent ' s New Castle , Delaware , plant, excluding
telephone operators , nurses, confidential secretaries to department heads, clerk
specialist-accounting , senior clerk-accounting , junior clerk-accounting , confidential
employees in the Labor Relations Department , draftsmen , professional employees and
all supervisors as defined in the Act.
43 The description of this unit , as alleged in the complaint , is as follows :
All production and maintenance employees , including plant clerical employees, at
Respondent ' s New Castle , Delaware , plant , excluding guards, nurses, telephone
operators , professional employees , draftsmen , confidential secretaries to department
heads, office clericals and supervisors as defined in the Act.
4* The Union had represented the employees in these units continuously thereafter.
45 The only employee in this unit who did not sign an authorization card was Estorina
Susi, the janitress.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with it. Accordingly, I shall recommend that this allegation of the complaint
be dismissed 46
One other matter in this connection was raised by the Charging Party. At the
hearing and in its brief the Union has contended that its contract with Bellanca
was never validly terminated, that this agreement was a binding obligation on
Piasecki as a successor or assignee of Bellanca, and that, as a result, on this basis
alone, Piasecki was obligated to recognize and bargain with the Union throughout
the effective period of the contract. This argument, however, was not grounded
on any theory of the complaint, for the latter alleged only that the Respondent
was under a statutory obligation to bargain with the Union. At the hearing, the
General Counsel did not allege that the Respondent was under a duty to bargain
as the result of a contractual obligation and he at no time took the position that
the aforesaid agreement was binding upon the Respondent. It is the General
Counsel who determines the scope of the complaint and none of the other parties
may amend, enlarge, or modify its allegations. Dallas Concrete Company, 102
NLRB 1292, 1293, 1296-1297, enfd. 212 F. 2d 98 (C.A. 5); Sailors' Union of
the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, footnote 1. Conse-
quently, in this case, since the Union's contention that the Respondent had breached
a contractual obligation to bargain is not encompassed by, nor relevant to, any
allegation in the complaint, it need not, and will not, be considered in this report.
C. Facts as to the alleged lockout; conclusions with respect thereto
On November 25, as noted earlier, the Respondent's management held interviews
at the New Castle plant. On that day the Bellanca supervisors, five of the
Bellanca clericals,47 and one Bellanca maintenance employee 4a were interviewed
and hired. Another applicant who had once worked at the plant for a short period
sometime before was also interviewed and hired.49 In addition, 17 non- Bellanca
applicants for production work were interviewed but not employed. None of the
Bellanca production workers were either interviewed or hired.
The General Counsel and the Union allege that this latter development resulted
from the Respondent's agents having locked the plant door to bar access to any
of the Bellanca union members. This was denied by the Respondent, according
to whom its management waited throughout the day, patiently but in vain, for the
Bellanca production workers to appear for an interview.
The front door of the plant opened into the lobby. Inside this room and to the
left of the door a switchboard was located at a point which enabled the plant
telephone operator to act as a receptionist. The door itself had a large glass panel
approximately 28 inches by 36 inches in width and height. There was a conflict
in the testimony as to whether the door was opened from the outside by turning a
knob or pulling a handle. Several witnesses testified that it was the former. The
more credible testimony on this point, however, was that the door had a latch
which the entrant had to press with his thumb 50 As Pasquarella credibly described
it, on the outer side the door had a "pitcher type latch." On the inside, however,
according to the testimony of witnesses for the Respondent 51 and the General
Counsel,52 the door was opened by a knob. There was likewise no dispute that
from within the lobby the door also had a night latch which could be locked by
turning the knob 53
19 It should be noted that even if the "employing industry" theory, urged by the General
Counsel and the Charging Party, were adopted, the Respondent would still not be obliged
to bargain with the Union as to the office clerical unit. On November 23, there were four
employees in this unit : Edna Fay Brown, Theresa Sammoni, Rose DiPetrapaul, and Ann
Chirco. On November 30, the Union had authorization cards from Brown and Sammoni
but not from DiPetrapaul or Chirco. Consequently, the Union did not represent a
majority of the office clerical unit at the time it requested recognition.
47 Ann Chirco, Edna F. Brown, Rose DiPetrapaul, Theresa Sammoni, and Elizabeth
Black.
48 Estorina Susi.
49 Baumgard,t.
50 This was the credible testimony of Thomas Gannon, an employee called by the
General Counsel and of Gustave Pasquarella , Kenneth R. Meenen , and Ralph Speakman,
who were called by the Respondent.
61 Ralph Speakman and Ruth M . Brown.
sz Sam Ringer.
5 This finding is based on the testimony of Speakman and Meenen.
PIASECKI AIRCRAFT CORPORATION 367
About 12:30 p.m., on November 25, Manning stepped outside the plant door
to announce to those who had assembled at the entrance that the Company was
then ready to interview applicants for employment. The testimony of the General
Counsel's witnesses as to the events which followed will now be considered.
Bert Bothe testified that immediately after Manning made his announcement he
went to the door and attempted to open it but met with no success. He further
testified that when he was at the door he could see Pasquarella in the lobby and
also a man whom he described as a "burly individual with an overcoat slung over
his shoulders," standing next to the door. Bothe conceded that during the moment
or more that he was at the door he did not see Pasquarella making any signals or
motions to the above-described man beside the door. According to Lawrence
Loroni, president of Local 840, when Bothe stepped aside, he went up to the door,
"put my hand on the knob, turned it, [and] saw that the door was locked." Loroni
stated that he remained at the door for a moment and did not attempt to open
it again that afternoon. Thomas Gannon, an employee and member of the
Union's shop and negotiating committees, testified that he attempted to open the
door twice, the first time being immediately after Loroni tried and the second
occasion being about 3:30 or 4 p.m. In neither instance was he able to open the
door. He also testified that a "tall man" appeared to be stationed at the door,,
and that Pasquarella and Manning were nearby. He also conceded, however, that
he did not see either of the latter making gestures to the man at the door. Sam
Hinger, a Bellanca employee and vice president of Local 840 at the time, testified
that he tried to open the door shortly after Loroni attempted to do so, but was.
similarly unsuccessful. He did not see Pasquarella in the lobby while he was at
the door but he testified that a "tall man" with a "dark coat . . . draped over his
shoulders" was standing near the entrance. Hinger made only one attempt to enter
the plant lobby. He testified, "I thought being as I was locked out once, there
wouldn't be no use of going back again." Gerald Knierieman, a Bellanca employee
and current vice president of Local 840, testified that shortly after Hinger was at
the door, he tried but was unable to open the door. He stayed there a short while
and did not try again. Knierieman stated that at the time he could see Pasquarella
and a man whom he assumed to be a guard near the door. He further testified,
however, that he did not see Pasquarella make any gestures or signals to this
individual while he was there.
Other witnesses testified as to their efforts to enter the plant after having seen
nonunion Bellanca personnel and non-Bellanca applicants gain ready admittance.
Wanda Giammateo, a Bellanca employee and recording secretary for Local 840,
testified that she tried to get in the lobby twice that afternoon, but was not success-
ful in either case. On the first occasion that she was at the door she could see
Pasquarella in the lobby and near the door a tall man whom she had never seen
before. About 2:30, and after she saw Regina Keenan, the Bellanca telephone
operator, gain admission to the plant, Giammateo again tried to open the door but
was unable to do so. Giammateo further testified that while she remained outside
the plant during the course of the afternoon she saw a number of Bellanca's non-
production employees, in addition to Keenan, who were able to enter the lobby
without any difficulty. These were the guards,54 five of the office clericals, Chirco,
Brown, DiPetrapaul, Sammoni, and Black, and the janitress, Susi . Elizabeth Doto,
another Bellanca employee, testified that she tried the door at about 1:30 p.m.
and after she had seen the Bellanca foremen and others who were not Bellanca
employees gain admission. According to Doto, when she arrived at the door, she
could see Pasquarella and a stranger whom she referred to as a guard standing
inside the lobby and near the door. Doto testified that as she approached the
door, the guard reached for the knob on the outside and then looked at Pasquarella
who shook his head. When that happened the guard withdrew his hand and did
not open the door. Nevertheless, Doto attempted to open it herself but was
unsuccessful.55 Charles Hypes, an International representative for the Union,50
testified that he went to the door about 20 minutes after Manning made his
announcement and found it locked. Bothe testified that during the course of the
afternoon he also saw Matteo Canne Longo, financial secretary for Local 840,
Only one of these, Herman Swain, was identified by name.
Both Doto and Gannon testified that they saw another employee, Leon Smyjewski, go
up to the door that afternoon and futilely try to open it.
se Bothe and Hypes were former employees of Bellanca who were on leave of absence
pursuant to a provision In the collective-bargaining agreement establishing this privilege
for union officials.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
try to open the door but with no success . Canne Longo himself was a witness
but gave no testimony as to this issue. John Mili, a Bellanca employee for almost
28 years, testified that he tried to enter the plant to be interviewed about 2 p.m.
According to Mili, he followed Gannon, Hinger, and Sam Piane , another employee,
to the door and when they were unable to get in he tried to do so and found the
handle of the door was locked . Mili testified that Pasquarella and an individual
whom he had never seen before were inside the lobby at the time. After this
attempt Mili remained in the plant area until about 5 p.m . but made no further
effort to be interviewed.
The Respondent 's witnesses testified , without exception , that after Manning
made his announcement the door remained unlocked throughout the course of the
afternoon. All denied that any stratagem was used to bar the Bellanca employees
from the plant . Pasquarella testified that although he was in and out of the
lobby on numerous occasions that day he spent approximately 4 hours in the
lobby that afternoon and that during that time the door was not locked . He also
testified that during that period he could not recall seeing any Bellanca production
employees come up to the door and attempt to open it. The only two individuals
whom he could recall having seen near the door were William E. Sassaman and
Ralph Speakman . The last named were employees at the Piasecki plant in Phila-
delphia who were assigned watchmen duties at the newly acquired premises that
particular Sunday. Sassaman had come on duty early that day and remained at
the plant until about 1 p.m . Speakman arrived at the plant later that morning
and was on duty in the lobby for about 4 hours that afternoon . Sassaman was in
the lobby for about 30 minutes after the interviews began. He testified that
during that time the door was never locked and that he had no instructions to
keep anyone from being interviewed . He also stated that he saw from 75 to
100 people gathered in groups outside the entrance who milled around before the
plant but none of whom came up to the door . He further testified that the door
mechanism "wasn't working too well , it would tend to hang a bit ." Sassaman,
however, did not see anyone have difficulty trying to open the door . Nor did
Mrs. Florence Atkinson, secretary to Mr. Piasecki , who was in the lobby during the
course of the afternoon . Speakman , on the other hand, testified that while he
was on duty the door catch did not work properly and that several applicants
had difficulty opening it. According to Speakman , he assisted some 8 to 10
applicants who had trouble opening the door that afternoon . He testified that
he saw no one pound, pull , or knock on the door and fail to get in and that after
the door was unlocked at 12:30 the keys remained on a counter next to the
telephone switchboard for the balance of the day . The telephone operator, Mrs.
Ruth M. Brown, corroborated this testimony as to the location of the keys that
afternoon . Another witness for the Respondent was Walter Lotocki, an uncle of
Frank Piasecki , and a comparatively recent emigree from Poland . At the time
of the hearing , Lotocki was an employee of the Respondent . 57 On November 25,
1956, however, he was a foreign language teacher in Philadelphia and was not
on the Piasecki payroll. He testified that he accompanied Mr. Piasecki 's mother
(who was also his sister ) to the plant that day , that he came only out of curiosity,
and that he remained in the lobby for from 30 minutes to an hour, during part
of which time he was at the lobby door gazing out at the people gathered -before
the entrance . He denied having locked the door to keep anyone out or having
received signals or instructions from Pasquarella. Lotocki was a quiet-mannered
gentleman who, in his halting English, displayed a manifest sincerity and truthful-
ness. Another witness for the Respondent who testified on this matter was Ken-
neth R . Meenen . According to him, the door was not locked and was operated
freely by anyone who tried it. However , Meenen conceded that on the day in
question he was in the lobby only for about 20 minutes and that this was during
the early part of the afternoon . 58 Franklin L. Miller, a photographer for Piasecki,
also testified for the Respondent as to this issue. According to Miller, while he
was in the lobby he saw about 12 persons coming in and going through the lobby
door. Miller, however, was a most unimpressive witness. Throughout his
examination he displayed a casual indifference to the proceedings and on cross-
examination answered most of the questions directed to him with "I don't remem-
s7 He testified that he was •a secretary-helper.
Robert J . Kutzer, assistant treasurer of the Respondent, also testified to having been
in the lobby for approximately 15 to 20 minutes during the afternoon of November 25.
Kutzer, however , testified that while he was in the lobby he saw no one attempt to open
the door from either the inside or the outside.
PIASECKI AIRCRAFT CORPORATION 369
her" or "I don't recall ." His testimony was utterly lacking in any element of
conviction.
Hinger testified that when non-Bellanca employees came to the plant entrance
and tried the door, after a short wait it was opened for them. This testimony
was corroborated by Albert Bolgar. The latter was the only witness at the
hearing who had never been an employee of either Bellanca or Piasecki . Bolgar
had seen the advertisement in the Sunday paper and came to the plant seeking
employment . He arrived there about noon that day and found that the interview-
ing had not begun so he returned to his car to wait until the plant opened. Not
long thereafter Bolgar observed one man from a group standing in front of the
door try to enter the lobby. Bolgar testified , "Nobody opened the door for him,
so he walked away." Shortly thereafter Bolgar again went to the entrance and,
once more , found the door locked . This time , however, according to Bolgar,
"I knocked at it and some guard came up and opened the door." He then entered
the lobby , filled out an application , and was interviewed . He was told , however,
that he would not be hired as there was no need for his particular skill.59 Bolgar
was a persuasive witness and his testimony as to the experience he had at the
plant that day tended to corroborate the testimony of the Bellanca employees who
testified that the door was locked to them whereas for non -Bellanca employees
and nonunion members the door was opened.
There were only six Bellanca employees in either unit represented by the Union
who entered the plant that day. These were: Ann Chirco , Rose DiPetrapaul,
Theresa Sammoni , Edna F. Brown , and Elizabeth Black , the first four of whom
were in the office clerical unit,60 and Estorina Susi, janitress and a member of the
production and maintenance unit. These six individuals arrived at the plant in
midafternoon . Pasquarella testified that Chirco had telephoned him that they
were coming . As they approached the plant, Pasquarella went out on the street
to meet them and accompanied them through the entrance and into the lobby
where they were interviewed and hired . Gannon testified that one of the indi-
viduals inside the lobby opened the door for Pasquarella and his group of women.
Speakman conceded that he was the guard who did so. Pasquarella was outside
the plant several other times that afternoon. On one of these occasions Bothe
engaged him in conversation . According to Bothe , he protested to Pasquarella
that many of the union members had come to the plant that afternoon in response
to letters from Piasecki which invited them for an interview and that having done
so "they were faced with a locked door ." Bothe testified that he then asked
Pasquarella , "What's going on here that nobody can get in the plant to see about
getting their jobs?" and that , in reply, the latter shrugged his shoulders and
stated, "Well , this is a mixed up affair. It is a very mixed up affair . You know
how Frank [Piasecki ] feels. . . . If you and the other union guys are really
interested in your people , if you really want to help your people and you want
them to get in this plant , you will get away from here today ." This testimony
by Bothe was never denied by Pasquarella . The latter conceded that he had been
out among the crowd several times that afternoon and that he had talked with
many of the Bellanca employees . He testified , however, that he could not recall
the substance of any of the conversations which he had. When asked whether
he had talked with Bothe during this period his only response was, "It is hard to
say who all I talked to." Bothe's testimony as to this incident was clear and
convincing . In the absence of any denial by Pasquarella it is worthy of credence
and I accept it as true.si
Testimony as to another conversation of relevance here must also be noted.
According to Lawrence Loroni, on November 28 he met Robert Willey outside
so Bolgar was a dynamometer operator.
60 The record is not clear as to whether Black was a member of this unit. Pasquarella
testified that she was not a union member and that she was in the payroll and accounting
department . She appears to have been among the employees in this latter department
who were excluded from the office clerical unit.
61 At the hearing the Respondent objected to this testimony on the ground that it had
not been proved that Pasquarella was a Piasecki employee at the time the conversation
occurred . This objection was not sustained by the record . Apart from the fact that
Manning had assured him of employment as shop superintendent several days or weeks
prior to November 25, Pasquarella testified that he was hired between 1 and 1 : 30 p.m. on
the latter date. According to Bothe's credible, undenied testimony , the conversation in
question occured about 3 p.m. By that time Pasquarella was, unquestionably , an agent
of the Respondent.
508889-60--vol. 12 3-2 5
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant 62 and in an ensuing conversation the latter stated that if the Bellanca
employees wished to go into the plant "as individuals, one at a time , and get
[their] jobs, [their] jobs were there." Loroni testified that he objected to this
suggestion with the statement that the Bellanca employees "feel that when they
go in , Local 840 will go in," and that Willey then replied, "That will never be,
because Mr. Piasecki will never permit Local 840 to go into that plant." This.
testimony was never denied. The Respondent never called Willey as a witness,
and no explanation was offered for the failure to do so.63 Under these circum-
stances, and in view of the fact that Loroni impressed me as a frank and honest
witness, I conclude and find that the foregoing conversation occurred as he-
related it.
The same could not be said for either Sassaman or Speakman. The former at
first testified that he did not observe anyone having trouble opening the door
that day. When confronted with an affidavit which he had given a field examiner,
Sassaman changed his testimony to the effect that at times the door did not work.
properly. Speakman testified that he examined the lock to see why the door did
not work properly and to determine what was causing it to stick. At one point
he stated that he found that the lock had several coats of paint and that "it worked
stiff from paint." Shortly thereafter he stated that "it had worn some from being
opened and closed." According to Speakman, some applicants were unable to
open the door but Sassaman testified to the contrary. Speakman's testimony was
also in conflict with that of Pasquarella. According to the latter he was in the
lobby approximately 40 minutes out of every hour and spent a total of about 4
hours there that afternoon. Speakman, on the other hand, testified that although
he was in the lobby almost the whole afternoon he saw Pasquarella there for no
more than 10 minutes throughout the entire period. By themselves these contra-
dictions would detract from the credibility of these witnesses but would not
destroy it. Their testimony, however, must be viewed against the background of
events which preceded and followed November 25.
The Respondent's insistence that Bellanca terminate its contract with the Union
and terminate all its employees on November 23 might be explained on the ground
that for business reasons Piasecki considered this a necessity in order to avoid
the possibility of being forced to meet contingent liabilities for vacation pay and
related obligations. At the same time, however, there is enough evidence in this
record to conclude that Piasecki hoped that this provision would also enable it to
run the new plant without having to do business with a labor organization. This
in itself is not an illegal objective for there is nothing in the Labor Management
Relations Act which requires an employer to like unions. Nevertheless, both the
Board and the courts have considered an employer's attitude toward labor organi-
zations as of some significance, as background evidence, in determining whether
he has engaged in unfair labor practices.64 The hostility of the Respondent's presi-
dent to the UAW was manifest throughout his testimony. Thus, at one point, he
referred to many labor organizations as being ",good unions." When he was then
asked, "Do you believe the UAW is one of those good unions?" he replied, "I
refuse to answer that question." On another occasion, when discussing the Com-
pany's activities in the last week of November, he characterized the Union as "an
obstruction in this problem and not an aid."
The evidence tends to prove that at the outset Piasecki hoped that it would be
able to hire all of the Bellanca personnel . Late in October, applications were
mailed to all of them. Baldini testified that early in November, Manning told
62 The latter had been in charge of the toolroom for Bellanca. He was among those
supervisors whom Manning contacted early in November to secure their services for
Piasecki. On November 25 he was interviewed by the Respondent and hired as an indus-
trial engineer. Mr. Piasecki testified that when first hired Willey was an assistant to
Kenneth R. Meenen, the industrial engineering manager, and that, as such, Willey held
an executive position. In this role Willey's comments as to labor relations at the plant
were remarks for which the Respondent was responsible. N.L.R.B. v. Solo Cup Company,
237 ' F. 2d 521, 523-524 (C.A. 8).
ea See N.L.R.B. v. Ohio Calcium Company, 133 F. 2d 721, 727 (C.A. 6) ; U.S. v. Lowe,
234 F. 2d 919, 923 (C.A. 3), cert. denied 352 U.S. 838.
"Thus, the Board and the courts have held that the fact an employer has had a long
period of amicable relations with a union tends to negate an inference of discrimination.
Economy Stores, Incorporated, 120 NLRB 1 ; Celanese Corporation of America, 95 NLRB
664, 702; N.L.R.B. v. Algoma Plywood and, Veneer Company, 121 F. 2d 602, 605 (C.A. 7) ;
N.L.R.B. v. Montgomery Ward & Co., 157 F. 2d 486, 492 (C.A. 8) ; N.L.R.B. v. Russell
Kingston, 172 F. 2d 771, 774-775 (C.A. 6).
PIASECKI AIRCRAFT CORPORATION 371
him that the Respondent planned to staff the New Castle plant with Bellanca
employees. Later, Manning and Pasquarella conferred on the number of em-
ployees who would be required to open the plant on November 26, and concluded
that from 37 to 50 workers would be needed. There is even evidence that the
actual names of these prospective employees had been selected . Thus, Thomas.
Gannon testified that on November 19 he was present when Pasquarella said to,
Manning, "Here is the personnel available for the 26th." Gannon's testimony was:
never denied. Earlier, Manning had interviewed most of the Bellanca supervisors-
In referring to this, in connection with matters that occurred prior to November
23, Mr. Piasecki testified, ". . . I think all people who were there, who we previ-
ously interviewed in the . supervisory classifications, had already made agree-
ments with them [the employees] to hire them." (Emphasis supplied.) Later in
the hearing , Mr. Piasecki testified , ". . . we wanted to maintain employment as
soon after taking over the plant as possible , and were very anxious to maintain
the skills in being in the plant ....65
It has already been noted that the Piasecki application forms contained an
interrogatory on the applicant's union affiliations. This type of query has long
been held by the Board and the courts to constitute unlawful coercion within the
meaning of the Act. N.L.R.B. v. F. H. McGraw and Company, 206 F. 2d 635,
640 (C.A. 6); Texarkana Bus Company, Inc. v. N.L.R.B., 119 F. 2d 480, 483
(C.A. 8); National Carpeting Div., National Automotive Fibres, Inc., 116 NLRB
1446, 1461. By November 15 some 75 of these applications had been returned
to the Respondent by the Bellanca employees. Up to that point the Union had
not encouraged its members to fill out the applications. After that date, however,
it actively urged and assisted the employees to complete the forms and return
them to Piasecki. The remainder of the Bellanca work force, including all of
the union leadership, then sent their applications to the Respondent. The latter
learned of this change in attitude on the part of the Union , as its officials testified,,
and by November 23 was well aware of this new factor. By this latter date also
the Union had militantly set forth its position that in the changeover it expected
to maintain its role as bargaining agent for the Bellanca employees . Although
the evidence in the preceding paragraph tends to prove that by mid-November the
Respondent had selected , from the Bellanca complement of employees , the per-
sonnel that would be needed to operate the plant on November 26, it is apparent
that after the Union initiated a campaign to encourage all employees to file
applications with Piasecki, the Respondent changed its original plans and estab-
lished the requirement that all applicants would have to be interviewed on Novem-
ber 25. Thereafter it mailed invitations to such interviews only to the 75 indi-
viduals who had returned their applications prior to November 16. Moreover,
despite some testimony by the Respondent 's witnesses that later applicants were
not notified by mail because of a lack of time for doing so, this testimony was
most unconvincing . Further evidence that the Respondent had no expectation or
intention of interviewing the 75 Bellanca employees who filed their applications
after November 16 appears from the testimony of Moser , the director of industrial
relations . According to the latter , the only applications he took to the New
Castle plant on November 25 were the 75 which had been received before
November 16. The applications of the other 75 Bellanca employees who had
mailed in their applications after that date, and all of which were received by
the Respondent on or before November 24, were ignored . It is clear from the
evidence that not only was no effort made to notify the latter group of applicants
as to the scheduled date for interviews , but, quite plainly, an effort was made to
conceal from them any plans for such interviews . Thus, no announcement of the
scheduled interviews was made at the Bellanca plant or posted on the bulletin
board. As a result , many of the Bellanca employees did not learn of the Re-
spondent's plan to hold interviews until they read the newspaper advertisements
which first appeared on the evening of November 24. On the following day, when
a large number of the Bellanca employees and their union leaders appeared at
the plant gates , according to their testimony , the plant door was locked to them,
but open to non -union and non-Bellanca applicants . The only members of the
two bargaining units at the Bellanca plant who entered the lobby for an interview
were Ann Chirco and the others who accompanied her after she had had a tele-
G5 Manning testified that "In the expansion plans of the company, it was thought that
in time we would be able to absorb all and more of those people [ the Bellanca employees]."
This same witness also testified , with respect to the applications of the Bellanca personnel,
"we had in mind an expansion of somewhere above a hundred in the very near future and
we wanted them on record."
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phone conversation with Pasquarella. Chirco and those with her were in the
original group of 75 who had returned their applications prior to November 15.66
Although there was a conflict in the testimony on the question as to whether
the plant door was closed to union members on November 25, there was no denial
that' "on November 26; as Loroni and others testified, it was locked. , industrial
Relations Director Moser testified that, with respect to the large crowd which
gathered at the entrance that morning, "I assumed they had come down for
employment. He conceded, however, that he did not invite them in for
interviews. Moreover, when Bothe and Knierieman, in the company of Major
Seitz, were admitted to the plant, they were told to leave as soon as they were
identified as union representatives. Before leaving, however, Bothe told Moser
that the former Bellanca employees "are all outside the plant. They are offering
themselves for employment. They want their jobs and we would like to get this
situation clarified." Moser promised to take the matter _up with Mr. Piasecki and
contact Bothe. Moser, on the other hand, never called Bothe and subsequently
refused to answer the telephone calls of the latter. Nor was there any testimony
that thereafter that day the plant door was unlocked and the Bellanca employees
invited in for an interview. Instead, the Respondent waited until November 30
and then mailed letters to the Bellanca employees in which it invited them to be
interviewed not at the plant in New Castle but at its headquarters in Philadelphia.
These steps by the Respondent further explain Willey's remark to Loroni that
"if we wished to go in as individuals, one at a time and get our jobs, our jobs
were there," but that "Mr. Piasecki will never permit Local 840 to go into that
plant." They likewise emphasize the significance of Pasquarella's remark to Bothe
on November 25, that "If you and the other Union guys are really interested
in your people, if you really want to help your people and you want them to get
in this plant, you will get away from here today." 67
From the foregoing evidence it is manifest to the Trial Examiner that the
Respondent was determined at all costs to avoid hiring the Bellanca employees
who were associated with the Union and the employment of whom in large numbers
would result in the Respondent's being saddled with a union majority and the
obligation to bargain with the UAW. In view of this background, and from my
observation of the witnesses, it is my conclusion that the testimony of the General
Counsel's witnesses to the effect that the plant door was locked on November 25
when they endeavored to enter must be accepted as the more credible. I so find.
I further find, on this record, that the Respondent locked out these applicants for
employment on November 25 and thereafter because of their affiliation with the
Union. It is likewise my conclusion that had it not been for the Respondent's
unlawful determination to prevent the Union from having any adherents in the
plant it would have hired many more of the former Bellanca employees as pro-
duction increased, and that it did not do so because of its continuing discrimination
against all job applicants who were affiliated with the UAW.
The Bellanca employees, as applicants for employment with Piasecki, were
employees within the meaning of the Act. Phelps Dodge Corp. v. N.L.R.B., 313
U.S. 177, 183-187; N.L.R.B. v. Lamar Creamery Company, 246 F. 2d 8, 10
(C.A. 5). Their lockout by the Respondent when they sought an interview on
November 25, and thereafter, was discriminatory and a violation of Section
8(a)(3) of the Act. I so find. This conduct, as well as the remarks of Pasquarella
to Bothe and of Willey to Loroni, the question on the Piasecki application form
requesting a disclosure of union affiliation, and the solicitation of the Bellanca
employees by the Respondent to abandon the Union, as outlined above, likewise
constituted discrimination within the meaning of Section 8(a) (1) of the Act.66
66 On her application Chirco had answered the question on union affiliation "yes . . .
'Local (Closed Shop)."
67 Respondent has attacked the credibility of the General Counsel's witnesses on the
:ground that many were union officers or committee members. This was true. On the
other hand, it is significant that the Respondent did not call any witnesses from among
the applicants who entered the plant on November 25, such as Chirco, DiPetrapaul, and
the others with that group. Nor was any supervisor at the New Castle plant below the rank
of Pasquarella called to testify on its behalf. Although there was no indication that
these individuals were unavailable, the Respondent offered no explanation for its failure
to call them as witnesses at the hearing.
63 Bothe, of course, was an assistant regional director for the Union and normally
remarks such as those of Pasquarella, made only to a full-time union official, and not in
the presence of employees, are not a violation of the Act. See Ford Radio & Mica
PIASECKI AIRCRAFT CORPORATION
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
373
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Since I have found that the Respondent discriminatorily locked out the appli-
cants for employment listed in Appendix A when they sought employment on
November 25, 1956, and thereafter, I shall recommend that the effects of these
unfair labor practices be remedied by ordering the Respondent to offer the indi-
viduals named in Appendix A, employment, at the same or substantially equivalent
positions at which they would have been employed had they not been discriminated
against, dismissing, if necessary, to provide employment for those offered and
accepting employment, all employees at the New Castle plant. If there is not
sufficient employment then immediately available for these persons, all available
positions shall be distributed among the employees entitled to reinstatement in
accordance with the Respondent's usual method of operation under curtailed pro-
duction, without discrimination against any employee because of union affiliation
or activities, following the system of seniority, if any, customarily applied to the
conduct of the Respondent's business. Any of the individuals listed on Appendix
A remaining after such distribution, for whom no work is immediately available,
shall be placed upon a preferential list prepared in accordance with the above
principles, and shall thereafter, in accordance with such list, be offered employ-
ment at the same or substantially equivalent positions at which they would have
been employed had they not been discriminated against whenever such employ--
ment becomes available and before other persons are hired for such work.
I shall also recommend that the Respondent make whole the individuals listed
in Appendix A for any loss of pay they may have suffered by reason of the-
Respondent's discrimination in the following manner: Pay to the said individuals;
a sum of money equal to the amount each would normally have earned as wages.
from the date he or she would have been hired, absent the discriminatory lockout,69'
to the date of any offer of- reinstatement less his or her net earnings during such=
period (E. C. Brown Co., 81 NLRB 140, 141-142, enfd. 184 F. 2d 829 (C.A. 2).
In the case of those individuals for whom there is insufficient work available, the
terminal date of the back-pay period will be the date on which 'that person is
placed on a preferential list as hereinabove set forth.
In view of the nature of the unfair labor practices committed, the commission
by the Respondent of similar and other unfair labor practices may be anticipated.
I shall, therefore, recommend that the Respondent cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is, and at all times relevant herein was, engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, AFL-CIO, and its Local No. 840, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
Corporation, 115 NLRB 1046, 1066. At the time In question, however, Bothe also had
the status of a Bellanca employee on leave (cf. Armour and Company, 83 NLRB 333,
334) and had a legitimate personal interest in filing an application with the Respondent
if he chose to do so. For these reasons, lie was an employee within the meaning of the
Act and the remarks of Pasquarella were not privileged.
"For some this would have been November 25, 1956, the date when the Respondent
originally planned to 'hire from 37 to 50 employees ; for others the date would have been
later. In the present state of the record, however, it is impossible to ascertain precisely
which employees would have been hired and when they would have been hired, in the
absence of the discriminatory practices to which the Respondent resorted. Accordingly,
these determinations must be left 'for compliance proceedings.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. (a) All production and maintenance employees, including plant clerical
employees, at the Respondent's New Castle, Delaware, plant, excluding guards,
nurses, telephone operators, professional employees, draftsmen, confidential secre-
taries to department heads, office clericals, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
(b) All office clerical employees at the Respondent's New Castle, Delaware,
plant, excluding telephone operators, nurses, confidential secretaries to department
heads, clerk specialist-accounting, senior clerk-accounting, junior clerk-accounting,
confidential employees in the labor relations department, draftsmen, professional
employees, and all supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. By discriminating in regard to the hire of applicants for employment, and
thereby discouraging membership in the above-named labor organization, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
5. By interfering with, restraining, and coercing applicants for employment and
employees in the exercise of rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent did not unlawfully refuse to bargain with the aforesaid
Union as alleged in the complaint.
[Recommendations omitted from publication.]
APPENDIX A
Aleta, Alfred P. . Emory, Thomas Lowman, Marvin J.
Allegretto, Nicholas Fahey, Catherine R. Loveless, Edwin A.
Anderson, John E. Fisher, Laurence T. Mancinelli , Fulvio E.
Andrisani, Paul Flora, Loretta A. Mancinelli, Gino
Beckett, Neil S. Fox, A. Manisto, Joseph
.Beltz, Ray Freebery, William Marra, Joseph
Biddle, Irving E. Gannon, Thomas Meyer, Frank
Biggs, Russell Giammatteo, Wanda Mili, John
Blanco , Joseph Green, Herbert J. Mili, John J.
Bollman, Erich Hammel, Geraldine Mines, Roland C.
Brown, Wm. P. Hartnett, Ulysses A. Morris, Marion I.
Butler, C. H. Hartnett, John L. Moore, Kenneth C.
Campbell, Paul F. Henry, Andrew W. Mrozowski, Edward
Campese, Anthony J. Henry, Willard J. McCaffery, Mary C.
Campese, Benjamin A. Hinger, Samuel E. Patterson, Paul
CanneLongo, Matteo Hodges, James W. Payton, Joseph F.
Carlton, Amalia Holland, Clay Petrowski, Joseph
Carson, Walter T. lannacone, Jerry Piane, Salvatore
Caruso, James Jones, Harry Polinchak, Pete
Caruse, Melvin J. Keenan , John P. Porter, Ernest B.
Casapulla, Dotty Kennedy, Harold H. Porter, Ernest W.
Ciccarelli, Paul A. Kennedy, J. A. Porter, William C.
Clark, Winfield Keith, F. Earle Preston , Clifford
Cole, George A. King, Dorothy S. Proud, William
Craig, John Knieriemen , Gerald E. Rash, Lee G.
Crowley, Helen B. Knise, Fred Reed, Walter J.
Cunningham, Ulysses Krasowitz, Hannah Reilly, James L.
Davis, Isabel A. Lancaster, Albert Rothermil, John
deFord, James R. LaRock, Florence Saggio, Salvatore
Dill, Vera Lenoir, Andrew K. Salinski, Andrew
Dimon, Joseph Leskino, John Salinski, Margaret
DiMauro, Salvatore Letts, Louise Salter, William J.
DiMenco, Dominick Lewis, Stephania Santillo, Joseph C.
DiPaolo, Firore J. Loroni, Laurence D. Schreiber, Rudolf
DiSabatino, Michael Lombardi, Anthony Schweizer, Alfred
Dombroski, Joseph V. Lombardi, Edith A. Sheldon, Jesse S.
Doto, Elizabeth B. Louderback, W. Sidwill, William S.
ARGONNE NATIONAL LABORATORY 375
Roscoe:Simmers Truitt, Dorothy Worrall, Anna M.,
.Sinagra, Frank Turko, Margaret Vari, Helen
Leon M..Smyjowski Wallace, James B. Volzone, Victor,
Anthony.Stello Wallace, Mildred Yacucci, Philip J.,
Sterling, Henry E., Jr. Wilkins, George Yermak, Stanley W.
Sutton Ora E. Williamson, Robert J. Zielinski , Stanley,
"Tindall, Ida Wolf, Jack Zimmerman , Virginia
Toner, Peter
Argonne National Laboratory and Argonne Guards Union, Peti-
tioner. Case No. 13-RC-6142. March 25, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
:Labor Relations Act, a hearing was held before Albert Kleen, hear-
ing officer. The hearing officer's rulings made at the hearing are
'.free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations 1 involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
•9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
The Intervenor advances as a bar a contract which it executed
jointly with an affiliate, Argonne Guards Union, Local No. 1, and
the Employer. As the contract-bar issue was raised by the con-
tentions of the parties, we have, pursuant to well established Board
,policy, examined the union-security provisions of the contract.2
They provide in part :
All guards shall, within ... (30) ... days ... following the
beginning of their employment . . . become members of the
Union . . . ; provided, however, that the Laboratory shall not
be required to discharge ... any guard ... if membership is
denied to the guard or terminated for reasons other than fail-
ure ... to tender the periodic dues and initiation fee uniformly
required . . . . Any guard terminated for failure to join the
Union shall not be rehired as a guard during the life of this
Agreement. [Emphasis supplied.]
1International Guards Union of America intervened on the basis of a contractual
Interest.
2 Foothill Electric Corporation, 120 NLRB 1350.
123 NLRB No. 50.