Before GOODRICH, HASTIE and FORMAN, Circuit Judges.
FORMAN, C. J.: In case No. 12,912, Piasecki Aircraft Corporation (Piasecki) has petitioned for review of, and to have set aside, an order of the National Labor Relations Board (Board) issued against it on March 25, 1959, following proceedings under Section 10 of the National Labor Relations Act, 29 U.S. C. §§ 151 et seq.*fn1
In case No. 12,995, International Union, United Automobile Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO and its Local 840 (Union) seek review of the same order.
The Board requests enforcement. The cases have been consolidated.
This court has jurisdiction of the proceedings under Section 10(e) and (f).
The controversy arises out of the purchase by Piasecki of the plant and certain effects of the Bellanca Aircraft Corporation (Bellanca) located at New Castle, Delaware. The agreement between the parties was executed October 24, 1956, and provided for the sale by Bellanca to Piasecki of its tract of land at New Castle of about 300 acres and all the buildings situate thereon together with all of the machinery, equipment and other property located on said tract.
Following Board conducted elections in December of 1941 and May of 1942, the Union and Bellanca maintained collective bargaining relations. Two units had been established, one was comprised of production and maintenance employees, the other of office and clerical employees. The most recent contract was signed on June 1, 1955 and among others contained the following pertinent provisions:
"Paragraph (86): EFFECTIVITY: (a) This agreement shall become effective June 1, 1955, and shall remain in full force and effect for a period of two years from such date, and for additional periods of one year thereafter with the proviso that, should either party elect to terminate this agreement, or to modify any portion of any of the terms thereof, it shall notify the other party in writing not less than sixty (60) days prior to the expiration date of the end of any subsequent yearly period, that the party giving such notice desires to terminate the agreement at the end of such period or to negotiate such amendments or changes of terms or provisions thereof as are specified in such notice."
"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 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."
The transfer, pursuant to the agreement of sale, took place on November 23, 1956.
Bellanca had employed approximately 140 maintenance and production workers and seven clerical employees. The employment of all, except for four in the clerical unit and one in the maintenance unit, came to an end on November 23, 1956. These five were hired by Piasecki on November 25, 1956.
The Union took the position that it was the exclusive representative of the employees and filed charges against Piasecki alleging unfair labor practices under Section 8(a), (1), (3) and (5), in that as successor of Bellanca it had refused to bargain collectively with the Union. It further charged that although there was work available for all employees on the same jobs they had performed for Bellanca, Piasecki
"has refused to recall to employment or employ said employees in the aforesaid unit covered by said agreement because said employees are active in or members of said union or have engaged or are engaged in concerted activities for their mutual aid and protection and said Piasecki refuses to employ said employees unless they repudiate said union; that said Piasecki has locked out said employees."
On June 12, 1957, the General Counsel of the Board, on its behalf, issued a complaint against Piasecki in which it alleged inter alia, the following:
"9. Respondent did on or about November 21, 1956, cause the discharge of the following employees at said New Castle, Delaware, plant:"
"11. Respondent did discharge and did fail and refuse to reinstate the employees named in paragraph 9 above, because said employees were represented by and were members of the Union, because they refused to abandon their right to bargain collectively through the Union and because they engaged in other concerted activities for their mutual aid and protection."
"14. On or about November 5, 8, 13, 17, and 30, 1956, the Union requested Respondent to bargain collectively in respect to rates of pay, wages, hours of employment, and/or other conditions of employment, with the Union as the exclusive bargaining representative of the employees of the Respondent. . . ."
"15. On or about November 6, 1956, and at all times since, Respondent did fail and refuse and continues to fail and refuse to bargain collectively with the Union as the exclusive bargaining representative of the employees . . ."
"21. The acts of Respondent described above constitute unfair labor practices affecting commerce within the meaning of Section 8, subsection (a)(1), (a)(3), and (a)(5), and Section 2, subsections (6) and (7), of the Act."
Piasecki denied these charges. The trial examiner, however, found that Piasecki had violated Section 8(a)(3) by pursuing hiring practices which discriminated against union members, thereby discouraging membership in the union; that it had violated Section 8(a)(1) by interfering with, restraining and coercing applicants for employment in the exercise of rights granted in Section 7; and that such unfair labor practices affected commerce within the meaning of Section (2), subsections (6) and (7). He also found that Piasecki did not violate Section 8(a)(5) because it was not a successor to Bellanca in the sense that the Union represented a majority of the employees on Piasecki's payroll on and after November 26, 1956 and recommended that that charge be dismissed.
As a remedy he recommended that Piasecki, its officers, agents and assignees shall:
(1) Cease and desist from such unfair labor practices, and
(2) Take the following affirmative action to effectuate the policies of the Act: Offer the 135 individuals named in Appendix A attached to this report
"immediate 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 seniority or other rights and privileges and to make whole all these aforesaid for any loss of pay suffered . . ."
Implementing action also recommended to be taken was to preserve and, upon request, make available to the Board or its agents, all records necessary to analyze the amounts of back pay due, and to post at its plant in New Castle, Delaware, notice of the recommendations.
Thereafter, Piasecki, the General Counsel, and the Union filed exceptions to the Trial Examiner's Report.
On March 25, 1959, the Board filed its decision. It adopted the findings, conclusions and recommendations of the Trial Examiner with one modification which will be discussed later.
An order was entered by the Board on March 25, 1959 implementing its decision and remedy.
Piasecki's Petition for Review of and to Have the Board's Order Set Aside
Piasecki argues that the findings and conclusions of the Trial Examiner, adopted by the Board, are not supported by substantial evidence on the record as a whole.
On October 30, 1956, Piasecki wrote to all Bellanca employees inviting them to apply for work, enclosing job application forms.
Among the questions posed in the application blank were:
"Have you been a member of a union? - "
Between November 2 and November 16, 1956, Piasecki received 75 responses to its communications, or from about 50% of the Bellanca employees.
Meanwhile on November 1, 1956, Harry E. Blythe, Executive Vice President of Bellanca, wrote a letter to each of its employees advising them of the sale of the plant.
On the same date he also wrote to B. W. Bothe,*fn2 Assistant Regional Director of the Union, as follows:
"Please be advised that the Bellanca Aircraft Corporation 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 between the said Company and the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America and its Local No. 840, affiliated with the AFL-CIO you are hereby advised of such sale and transfer at least fifteen (15) days priors 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.
"Executive Vice President"
On November 5, Bothe and Laurence Loroni, as President of Local 840, signed a letter addressed to Bellanca and Piasecki, as follows:
"We are in receipt of a letter dated November 1, 1956, signed by Harry E. Blythe, Executive Vice President, Bellanca Corporation, which attempts to involve Paragraph 89 of the Agreement between the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 840 and the Bellanca Corporation, dated June 1, 1955. While this letter is not explicit, we are assuming that the sale referred to is to the Piasecki Aircraft Corporation.
"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 negotiations in respect to wages as of November 1, 1956, and request that the 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 us for such purpose.
"In any event, we request that the successor meet with us for the purpose of collective bargaining as representatives 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 requested by the above unions are available for employment with its successors or assigns, in accordance with the terms of the above ...