Gyrodyne Co. of America, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1968

170 N.L.R.B. 236 (N.L.R.B. 1968)

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gyrodyne Company of America, Inc. and Interna-
tional Union, United Automobile, Aerospace &
Agricultural Implement Workers of America,
UAW, AFL-CIO. Case 29-CA-57
March 12, 1968
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On January 21, 1966, Trial Examiner Arthur E.
Reyman issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain unfair labor practices alleged in
the complaint and recommending that the com-
plaint be dismissed, as set forth in the Trial Ex-
aminer's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Trial
Examiner's Decision and briefs in support thereof.
The Respondent then filed cross-exceptions and a
brief in support thereof and also an answering brief
to the General Counsel's and Charging Party's
statements of exceptions.' Subsequently, the Charg-
ing Party filed an answer to the cross-exceptions
and a motion to reject Respondent's cross-excep-
tions and brief, which motion was denied by the Ex-
ecutive Secretary by direction of the National
Labor Relations Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-ex-
ceptions, and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby
is, dismissed.
' The Employer's request for oral argument is hereby denied as the
record, exceptions , and briefs adequately present the issues and positions
of the parties
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR E. REYMAN, Trial Examiner: This is a
proceeding under Section 10(b) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., herein called the Act.
International Union, United Automobile,
Aerospace & Agricultural Implement Workers of
America, UAW, AFL-CIO, hereinafter called the
Union or UAW, on June 30, 1964, filed a charge,
and on July 17 and 31, August 12, and September
16, 1964, filed first, second, third, and fourth
amended charges in that time sequence against
Gyrodyne Company of America, Inc., hereinafter
sometimes called the Respondent or the Company,
the basis for the charges being that the Respondent
had engaged in and was engaging in unfair labor
practices within the meaning of Section 8(a)(1)
and (3) of the Act.
On February 15, 1965, the General Counsel of
the National Labor Relations Board, on behalf of
the Board, by the Regional Director for Region 29,
issued a complaint and notice of hearing against the
Respondent, the complaint alleging that the
Respondent, by certain acts and conduct "has been
engaged in and is engaging in" unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(1) and (3) of the Act. On May 3,
1965, the Regional Director issued an order
amending the complaint. The Respondent filed
timely answer to the complaint and to the amended
complaint, effectively denying that it had engaged
in or was engaging in unfair labor practices, as al-
leged. On the following June 22 the complaint was
amended by the General Counsel during the course
of the hearing herein, to which appropriate denials
were stated by counsel fo' the Respondent.
Pursuant to notice, this case came on for hearing
before me at Plainview, Long Island, New York, on
May 17 and, after interim recesses, was closed on
August 17, 1965. At the hearing, each party was
represented by counsel, was afforded full opportu-
nity to call, examine and cross-examine witnesses
and to present evidence relevant to the issues of the
case, to argue orally upon the record, and to file
proposed findings of fact and conclusions of law.
Briefs have been filed on behalf of each party, and
proposed findings of fact and conclusions of law
have been submitted on behalf of the Respondent.
Counsel presented oral argument at the hearing.
Motions to strike and to dismiss, made by counsel,
for the Respondent upon the resting of the General
Counsel's case, and renewed at the close of the
hearing, are disposed of by this Decision.
Upon the whole record of this case, and from my
observation of the witnesses, I make the following:
GYRODYNE COMPANY OF AMERICA, INC. 237
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent, Gyrodyne Company of Amer-
ica, Inc., is and has been at all times material
herein, a corporation duly organized under and ex-
isting by virtue of the laws of the State of New
York, and during such times has maintained its
principal office and place of business at St. James,
Suffolk County, Long Island, in the State of New
York, where it is, and has been at all times material
herein, engaged in the manufacture, sale, and dis-
tribution of helicopters and related products. Dur-
ing the year ending April 30, 1964, which period is
representative of its annual operations generally,
the Respondent, in the course and conduct of its
business, purchased and caused to be transported
and delivered to its St. James'plant, aircraft en-
gines, electric components, metals, wood, and other
goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of
$50,000 were transported and delivered to its St.
James plant in interstate commerce directly from
States of the United States other than the State of
New York. During the same representative period,
the Respondent, in the course and conduct of its
business operations, manufactured and sold at its
St. James plant, helicopters and related products
valued in excess of $1,000,000 of which products
valued in excess of $50,000 were shipped from said
factory in interstate commerce directly to States of
the United States other than the State of New
York.
The Respondent is, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile,
Aerospace & Agricultural Implement Workers of
America , UAW, AFL-CIO, is and has been at all
times material herein , a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The issues as raised by the pleadings
The complaint alleges that the Respondent, by
certain of its supervisors named in the complaint, in
or about February and March 1964 and through
June 1964, interrogated its employees concerning
membership, activities on behalf of and sympathy
in and 'for the Union, as follows: Louis Alfieri,
motor pool foreman, in February and March; Peter
Ackles, general foreman, in or about the third week
in June; J. Manico, machine shop leadman, in or
about the months of February through June; and
James Sullivan, avionics inspection foreman, and Al
Beltran and Don Cook, in or about the months of
February through June.
The Regional Director by order entered on May
3, 1965, amended the complaint to allege that
Beltran, Cook, Manico, Elton Balch, and Bob
Southworth "are, and have been at all times materi-
al herein, agents of Respondent, acting on its be-
half, and supervisors thereof within the meaning of
Section 2(11) of the Act." That order also
amended the complaint by adding an allegation that
Bob Southworth, blade shop leadman, in or about
the first week of May 1964, in or about the blade
shop during working hours warned and threatened
its employee, Robert Reichle, that "if the Union
became the collective bargaining representative of
Respondent's employees the Respondent would
shut down its plant."
The complaint also alleges that the Respondent,
by William Dennis, blade department foreman, in
or about the months of February through June
1964, and by J. Manico, machine shop leadman
and Al Beltran and Don Cook, in' or about the
months of April through June 1964, warned and
directed its employees to refrain from becoming or`
remaining members of the Union, and threatened
its employees with layoffs and other reprisals if they
became or remained members of the Union and if
they gave any assistance or support to it. It further
is alleged that on or about June 11 and 12, 1964,
the Respondent, by Peter J. Papadakos, its pre-
sident, in the course of speeches to assembled em-
ployees during working hours, offered, promised,
and granted to its employees free hospitalization
benefits, bonuses, and other benefits and improve-
ments in their working conditions and terms of em-
ployment to induce them to refrain from becoming
or remaining members of the Union, and to refrain
from giving any assistance or support to it, and to
induce them to abandon their membership in and
activity on its behalf. During the course of the hear-
ing, on motion of counsel for the General Counsel,'
the complaint was amended by an allegation to the
effect that since on or about January 1, 1964, the
Respondent by Papadakos, its president, and by its
personnel department acting on the orders of
Papadakos, kept its employees under surveillance
for the purpose of discovering which of said em-
ployees were members of or engaged in activities
on behalf of the Union. All of these, allegations are
denied by the Respondent. The complaint names
some 30 employees alleged to have been
discharged because they joined and assisted the
Union, and engaged in other concerted activity for
" As apparent in context , counsel for the General Counsel may some-
times be referred to as General Counsel.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purpose of collective bargaining and mutual aid
and protection; and states in effect that after the
termination of the employment of each of these
employees the Respondent has failed and refused to
recall or reinstate, or offer to recall or reinstate,
said employees to their former or substantially
equivalent positions of employment. There was 1
employee terminated on March 2, 2 employees on
March 3, 10 employees on June 19, and 17 em
ployees on June 29, 1964. The Respondent admits
the termination of the named employees on or
about the dates stated in the complaint, but denies
that they were discharged for the reasons stated in
the complaint.
2. The questions to be answered on the facts
Of the issues raised by the pleadings, after hear-
ing, and upon the whole record of the case, the fol-
lowing are to be decided:
1. Did the Respondent, by and through certain
of its supervisors, interrogate its employees con-
cerning the employees' membership activities on
behalf of and sympathy in and for the Union, in
violation of Section 8(a)(1) of the Act?
2. Did the Respondent, through certain of its of-
ficers and supervisors, make threats and promises
of benefits to its employees in a manner constitut-
ing interference, restraint, and coercion, in viola-
tion of Section 8(a)(1) of the Act?
3. Did the Respondent discriminate in regard to
the hire, tenure, terms and conditions of employ-
ment of some 30 of its employees, thereby
discouraging membership in the Union and engag-
ing in unfair labor practices affecting commerce, in
violation of Section 8(a)(3) of the Act?
4. Did the Respondent, by and through its presi-
dent and personnel department, conduct a surveil-
lance of its employees in order to ascertain who
were union members or union organizers, in viola-
tion of Section 8(a)(1) of the Act?
5. Were certain individuals employed by the
Respondent at the times material herein supervisors
and agents of the Respondent within the meaning
of Section 2(1 1) and (13) of the Act?2
3. Union organizing activities
Lewis E. Urban , International representative of
UAW assigned to its region 9A in New York City,
testified that after receiving a telephone call from
an employee he and some employees of the
Respondent , in January 1963, undertook to or-
ganize Respondent 's employees , impliedly those
employees in the production and maintenance de-
partments in Respondent's St. James plant. Ap-
parently there were a few meetings held in secret
among some of the employees in the year 1963. In
May 1964, subsequent to the handing out of a few
throwaways or handbills, the Union first came into
the open and announced that it would hold a meet-
ing on Wednesday, June 3. The first leaflet was
passed out on January 3 1, a letter was sent out by
Urban to all "card signers" on February 10, a
leaflet was distributed by him on March 5 at the
plant garage, another handbill was distributed
about March 3, and the employees were notified by
a notice signed by Urban dated April 2 that "at the
March meeting of the UAW card signers, it was
agreed that our next meeting be held Wednesday,
April 8." It has been stipulated by counsel that
handbills numbering in excess of 30 were dis-
tributed between January 31 and June 30, 1964.
These union handbills were passed out openly and
widely and, according to unanimous testimony of
those witnesses who were examined, could be
found upon benches and desks and elsewhere
throughout the plant. In all, over a period of about
2 years beginning in 1963, over 60 such leaflets,
handouts, or throwaways were given out.
Various unions were engaged in campaigns in an
attempt to organize the employees of Gyrodyne
prior to 1963. From January 1963 and continuing
into 1964 UAW started and continued to pursue an
effort to organize Gyrodyne's production and main-
tenance employees. Opposite to the contention of
the General Counsel, the Respondent maintains
that although union organizational campaigns were
frequent occurrences at Gyrodyne, nevertheless,
during the entire UAW campaign, the Respondent
"acted passively, and did nothing."
Prior to the June 3, 1964, meeting, Urban said he
talked to individuals and also had meetings of em-
ployee card signers at the Elks Club in Smithtown,
Long Island, and in Murphy's Bar on Route 25A in
Smithtown, a community near St. James. No record
was kept by Urban, he said, concerning the number
of employees who attended the open meetings. He
testified that between 20 and 30 employees at-
tended the meeting of June 3, about 13 employees
attended a second open meeting held on June 17,
and 8 to 10 employees were present at the third
open meeting on June 24. However, in a leaflet dis-
tributed on June 10, the Union claimed enough
card signers to file a petition for representation
with the Board.
At the time of the hearing of this matter, the
Union was still engaged in its organizing campaign,
although it apparently had enlisted the membership
support of only a few of the some 800 employees
then employed at the St. James plant.
Prior to January 1963 other sporadic attempts
had been made to organize the employees, the Em-
ployer during these times employing a comparative-
ly small number of employees. In April 1962 the
Respondent entered into a consent-election agree-
s Counsel for the Union , if I understand him correctly , with minor excep-
tions here and there has adopted the position of the General Counsel re-
garding the issues involved herein
GYRODYNE COMPANY OF AMERICA, INC.
ment with the International Union of Electrical
Worker (IUE) (Case 2-RC-12006) and a secret-
ballot election was conducted on June 14, 1962,
re afting in a vote of 116 against the Union, 33 for
the Union, and 9 challenged ballots. It does not ap-
pear that objections were filed to the result of that
election by IUE.
Notwithstanding the fact that I had ruled out
evidence in respect to alleged independent unfair
labor practices which were said to have occurred in
1962 as falling under the proviso of Section 10(b)
of the Act, and as being too remote for background
purposes, there is more than fragementary
testimony in the record, which I shall allow to
stand, to the effect that Ernesto Petito engaged in
some activity in May 1962 at the suggestion of
General Foreman Peter Ackles, to form a company
union. There is other testimony of independent al-
leged unfair labor practices in connection with the
1962 election, placed in the record against my
precise ruling that none of it could be relevant to
the issues of this case.'
The effort of the Union to organize the produc-
tion and maintenance employees of the Company,
up until the close of hearing herein in August 1965,
has been unsuccessful.
4. Company history; administrative and
departmental organization
Because of the circumstances surrounding the
discharge of employees and the nature of the defen-
ses interposed by the Respondent, it seems ex-
pedient to briefly summarize the Company's history
and organization of plant personnel.
The Company was incorporated in the year 1948
for the purpose of engaging in the research, manu-
facture, and distribution of helicopters. It operated
as a comparatively small enterprise for about 10
years until on December 1, 1958, it received a con-
tractual authorization from the United States Navy
for the production of a remote control helicopter.
Thereafter, the Company engaged in research and
development until , in 1962, the Navy ordered
I In so ruling, I was mindful of the statement of the United States
Supreme Court in Local Lodge No. 1424, International Association of
Machinists, AFL-CIO v. N.L.R.B., 362 U.S. 411,416-417:
It is doubtless true that §10(b) does not prevent all use of evidence
relating to events transpiring more than six months before the filing
and service of an unfair labor practice charge. However, in applying
rules of evidence as to the admissibility of past events , due regard for
the purposes of §10(b) requires that two different kinds of situations
be distinguished . The first is one where occurrences within the six-
month limitations period in and of themselves may constitute , as a sub-
stantive matter, unfair labor practices There, earlier events may be
utilized to shed light on the true character of matters occurring within
239
deliveries of 31 such helicopters. The demand for
the Company's product by the Government in-
creased until, in 1963, the Company was awarded a
contract for the manufacture of 100 helicopters,
called drones, which were delivered during the last
6 months of that year after testing by the Navy dur-
ing the preceding 6 months. In 1964 the Company
entered into a contract with the Government for
the delivery and sale by it to the Navy of 186
helicopters. The record here reflects and testimony
and documentary proof shows a rapid growth
between the year 1962 and 1964, so much so that
within this 2-year period, the Company was
required, under its contracts with the Navy, to in-
crease production from 31 to 186 helicopters,
which in turn required it to convert its organization
from a research and development enterprise into a
mass production plant.
The rapid growth imposed a requirement for in-
creased plant facilities and skilled personnel who
were able to work with production needs and open
tolerances rather than those required for prototype
production. In the conversion from prototype to
multiple production of units, management person-
nel designed their product, perfected it, and en-
gaged in necessary plant expansion. The Respon-
dent contends, and the record seems to bear out its
contention, that management succeeded in decreas-
ing man-hours necessary to build a prototype
helicopter and to build a production line helicopter
by about 300 percent.
A number of Government defense contracts were
negotiated with the Navy. Prior to each proposed
contract, representatives of the Company and
representatives of the Navy engaged in the ordinary
and necessary protracted meticulous negotiations
necessary to arrive at an agreed on ultimate cost to
the producer of a drone helicopter at the lowest
price for sale by the Company to the Navy. The
Navy's requirements for the helicopters resulted in
increased sales, inventory, and earnings.
Because it will become necessary herein to
discuss circumstances incidental to the per-
formance of contracts together with the layoffs or
the limitations period, and for that purpose § 10(b) ordinarily does not
bar such evidentiary use of anterior events . The second situation is
that where conduct occurring within the limitations period can be
charged to be an unfair labor practice only, through reliance on an
earlier unfair labor practice There the use of the earlier unfair labor
practice is not merely -"evidentiary," since it does not simply lay bare a
putative current unfair labor practice Rather , it serves to cloak with il-
legality that which was otherwise lawful . And where a complaint based
upon that earlier event is time-barred , to permit the event itself to be
so used in effect results in-reviving a legally defunct unfair labor prac-
tice . [Emphasis supplied.]
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharges of employees, it is convenient to here set
forth a summary of the list of contracts, contract
values and other information pertinent to the work
performed by the Respondent for the Government
on contract numbers as reflected on the fate of the
following list:
Approximate Contract Value (excluding profit or fee) of Gyrodyne Contract
for Hardware 1960 through 1965
Contract Item
(Not Incl Fee)
Value of Item
60-0154 -c 15 QH-50C Drones $15,900,000.00 $ 3,300 , 000.00
60-0154-c 42 QH-50C Drones 9,100 , 000.00 956,000.00
62-0354-ci Shipboard SRW-4 1,680,000.00 431,000.00
62-0869 - i Shipboard SRW-4 940,000.00 482,000.00
62-0532 - c 31 QH-50C Drones 4,200 , 000.00 589,000.00
63-0251 -ci 100 QH-50C Drones 13,100,000.00 4,100,000.00
63-0306-i Shipboard SRW-4 1,350, 000.00 616,000.00
64-0158- i 189 QH-50C Drones 18,176,106.00 5,207 ,000.00
65-0058- f 186 QH-50D Drones 17,200 ,000.00 8,000 , 000.00
TOTAL $81,646 , 106.00 $23,681 ,000.00
Total Contract Item 81,646 , 106.00
23,681 , 000.00
$105,327 , 106.00
Tentative Fee or Profit
(15) 60-0154 1,344,000.00
60-0154 704,000.00
62-0354 169,000.00
62-0869 121,000.00
62-0532 359,000.00
63-0251 1,677,000.00
63-0396 197,000.00
64-0158 2,573,000.00
65-0058 3,450,000.00
$10,594 , 000.00 4/
The administrative, as well as the executive, or-
ganization of Gyrodyne is headed by its president,
Peter S. Papadakos. Directly under him in the line
of supervision are three primary department heads.
Anthony Caliendo is director of production,
planning, and control. He supervises the planning
of the product from its inception to its delivery. He
4 These figures were furnished by Richard S. Thompson, Jr., a contract
negotiator and a sometime contracting officer for the Bureau of Naval
Weapons, United States Navy Department , who was called as a witness for
the General Counsel . The figures are contained within an exhibit (G.C.
Exh. 22), rejected by me at the time of offer because there was not at that
time any apparent relevance of those figures to the case . However, as coun-
sel for the General Counsel eventually exposed the theory of his case, it
became apparent that these figures might be relevant on the General Coun-
is in charge of the packaging department. The su-
pervisor in charge of that department, Harry Hoff-
man, reports directly to Caliendo, and his function
is to supervise and to package the various airplane
detailed components, subassemblies , rotor blades,
transmissions , and the electronic boxes, and all the
support equipment in accordance with the
sel's contention that , despite intensive efforts on the part of Thompson as a
contract negotiator to persuade the Company to reduce the number of em-
ployees in certain departments, nevertheless such reductions in force were
not made until the discharges or terminations or layoffs of June 1964. The
defense of the Respondent, meeting the proof on the other side, confirmed
the competency and relevancy of these figures . Accordingly, my ruling te-
jecting the offer of this exhibit was reversed by me.
GYRODYNE COMPANY OF AMERICA, INC. 241
techniques described in specifications and
prescribed Navy method,
Caliendo is also responsible for the shipping and
receiving department. The motor pool is under the
supervision of Louis Alfieri. Dominick Aversano,
who reports directly to Caliendo, is responsible for
the supervision of the dispatching and expediting
department.
Peter Ackles is director of fabrication. He is
sometimes referred to as the general foreman. He is
responsible for the control of the manufacture of
the helicopter from the time the parts come in or
are made by the Respondent until the helicopter
leaves the plant. He is in charge of the machine
shop, blade shop, transmission assembly depart-
ment, rotation assembly department, fuselage de-
partment, final assembly department, electronics
manufacture, and the maintenance of electrical
components. He is in charge of the maintenance
department which takes care of the plumbing, elec-
tricity, and carpentry around the building areas,
under the supervision of one Coy. A subcontractor,
Allied Maintenance, since early 1964, has per-
formed cleaning maintenance of the buildings and
care of the plant grounds.
George Mancini supervises the machine shop.
Dennis supervises the blade shop, the blade shop
being divided into a cutting area, a lay-up area, an
auto-clave area, a routing area, and a bonding area.
In June 1964 there were 158 employees under
the supervision of Ackles, as compared to 131 men
presently employed, plus 19 men in the main-
tenance department, or 146 men.
John Hollwedel is director of quality and relia-
bility control, responsible for the inspection of the
material delivered by the Respondent to the
Government, and also for verification that the
quality assurance of contractual provisions are met.
He also is responsible for the mechanical inspection
and the electronic inspection, which includes
receiving, inspection, end process inspection, flight
test, inspection, avionic inspection, and instrument
calibration inspection. He supervises the work of
the quality assurance engineers and reliability en-
gineers.
Under Hollwedel, in the mechanical inspection
department, is Supervisor Groff Ward, Assistant
Foreman Frank Loganza, and leadman Buddy
Hauck.
Jim Sullivan is supervisor in the avionics inspec-
tion department and the instrument calibration de-
partment, reporting directly to Hollwedel.
Under each department supervisor are found
assistant foremen and leadmen.
The leadmen's duties in each department vary
but, it is contended by the Respondent and
disputed by the General Counsel, they do not have
the authority to hire, fire, transfer, suspend, lay off,
discharge, recall, discipline, adjust grievances, or
interview for hire. They are paid at an hourly rate
of pay, wear the same clothes as the other em-
ployees, and share the same lockers and washing
facilities. The question of whether some or all of
these leadmen are supervisors within the meaning
of the Act, and particularly as to those leadmen
who will be named below, becomes an issue in the
determination of whether or not the Respondent
committed certain of the unfair labor practices al-
leged in the complaint:
The complaint says in effect that in or about the
months of February through June 1964, Sullivan,
avionics inspection foreman, and leadmen Beltran
and Cook unlawfully interrogated employees con-
cerning the Union. In support of the contention
that Cook and Beltran were or are supervisors, the
General Counsel called employees Martinez, Vella,
Petralia, Lupardo, Wall, and Preite, each of whom
had been discharged on June 29, 1964.
The complaint sets forth that machine shop lead-
man J. Manico, in or about the months of February
through June 1964, interrogated Respondent's em-
ployees concerning the Union. In support of his
contention that Manico was a supervisor during
these times, the General Counsel called John Wolf
and Lucien Marsan, who had been employed in the
machine shop and were discharged on June 29,
1964.
The General Counsel relies on the testimony of
Augustus Bentivegna to show that leadman Elton
Balch was a supervisor in the blade shop at the time
of Bentivegna's employment and was a supervisor
in the blade shop at the time of Bentivegna's
discharge on June 29, 1964.
In support of his contention that leadman Robert
Southworth was a supervisor in the blade shop,
General Counsel called former employee Robert
Reichle, who quit his job after working 2 weeks,
and Joseph Damato, employed in the blade shop
until his discharge on June 19, 1964.
The question as to whether these particularly
named leadmen were, during any critical time
covered herein, supervisors or agents of the
Respondent, is disposed of by findings set forth
below.
Because the proper resolution of the issues of this
case insofar as the claim of discriminatory
discharges may be involved, it seems appropriate to
set forth the facts which lead the General Counsel
to assert in effect that, notwithstanding the urging
of the Navy to reduce its work force in order to
save costs and further to attain full and efficient
production, the Respondent did not effect a true
reduction-in-force until it became expedient to
discourage a concerted effort of certain employees
to organize into the Union by discharging them
under pretext; and then to examine the defense of
the Respondent to the effect that, in response to
the demands of its only customer, the Navy, it did
manage to increase production as demanded by the
Navy, with consequent lowered labor costs effected
by terminating the employment of those em-
ployees-those who now claim they were dis-
350-999 0 - 71 - 17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminated against because of their union activities.
On the basis of the testimony of Richard S.
Thompson, Jr., chief negotiator for the Navy, as
confirmed by the testimony of Papadakos, Calien-
do, Ackles and Hollwedel, of the Company, it
clearly appears that Thompson was a hard bar-
gainer and insisted upon, in the estimation of cost
on any of the certain and several contracts above
listed, and laid down plainly the fact that the
Government intended to enter into contracts at the
lowest possible price and accordingly would require
the Respondent to prepare many estimates of an-
ticipated cost reduction in order to consider all of
the component parts of actual cost to be considered
in arriving at the cost of a finished product. Con-
sequently, the officers and managers of Respondent
were deeply concerned with reducing costs of
product and in obtaining adequate compensation
for its production. As emphasized by the General
Counsel in the presentation of his case, the product
was an extremely important one in the eyes of the
Navy, being a special product which the Navy con-
sidered one of the paramount adjuncts to its an-
tisubmarine warfare plan. It cannot be denied that
each one of the contracts for the production and
delivery of helicopters was entered into by the
Respondent on the one side and the Navy on the
other after intensive and lengthy negotiations had
been engaged in between these two parties.
At the request of the President of the United
States, made to the president of Gyrodyne under
date of December 2, 1963, the Company was
requested to engage in and maintain a program of
cost reduction in the performance of its defense
contracts. At the same time the Secretary of
Defense wrote to the president of Gyrodyne, setting
forth ; certain primary costs reduction objectives
which as a matter of policy the Department of
Defense urged Government contractors to follow.
As stated, one of these objectives was to place
sound competitive subcontracts; another was to as-
sure that each contractor's own internal economic
operation was to be conducted in the most
economical manner. Following receipt of these let-
ters, the president of Gyrodyne was impelled to
place great effort into a program of further cost
reduction, and so announced to his employees by
sending reproduced copies of the letters of the Pre-
sident and the Secretary to each employee.
Thereafter he conferred with his department heads,
Caliendo, Ackles, and Hollwedel, and requested
that they examine very closely the departmental
operations and make an effort to determine further
methods looking to costs saving and the improve-
ment of the quality of the helicopters produced by
the Company. At his request, the department heads
considered, whether adequate tooling had been in-
stalled; he requested the engineering department to
study possible simplification and opening of
tolerances in order to reduce manufacturing and as-
sembly time; and he further requested the procure-
ment department to find better quality if possible
from suppliers and at the same time retain, quality
standards, and to reduce inspection cost by adopt-
ing a workable sampling inspection procedure.
Almost coincidentally, the United States Govern-
ment started to maintain its own warehouses for
parts, so that the Company no longer stored parts
and its need for a separate packaging department
was lessened. In these circumstances, the Company,
after evaluating its packaging needs as well as its
supply of manpower, and after finding that the cost
of packaging was excessive, requested bids and
then decided to subcontract packaging department
work to a specialty firm. This ultimately reduced
the cost from approximately 8 percent to 1-1/2 per-
cent for the finished packaged product. During this
time, the Company attempted to improve working
conditions in regard to the physical aspect of the
plant and to improve the comfort of each em-
ployee; for example, in the blade shop additional
and new tooling equipment was installed, fire
hazards reduced and other improvements made.
During this period of transition from research
and development to production, the Company
changed its shipping methods to no longer require
air shipments of small parts of equipment from ad-
jacent airports, so that shipments were made FOB
to the St. James plant. This change resulted in the
elimination of work of certain employees in the
motor pool. Economies were effected in the
machine shop and in the inspection department.
While this was going on, the department heads of
necessity reviewed and assessed the need for the
then employed manpower against what was needed
under the cost reduction program. Inevitably, cer-
tain reductions of force were made apparent as a
matter of ordinary efficiency. By instruction from
Papadakos, his department heads, in weighing deci-
sions as to which of the employees should be
retained, considered length of service together with
the capability of any individual. From July 1, 1964,
to the close of the hearing herein, it has been
demonstrated that no additional personnel had
been hired either in the production or maintenance
departments, and that subsequent to July 20, 1964,
45 employees in these same departments have been
either laid off, discharged, or left their jobs for
other reasons, with no one having been hired to
take their place.
As a result of the efforts of management to
reduce costs, satisfy the Navy with respect to its
product, and maintain its growth, the Respondent
manufactured more helicopters than in previous
years of its operation, all of which were delivered
prior to or on the target delivery date set forth by
the Navy. The Respondent emphasizes its satisfac-
tion with this accomplishment by setting forth in
evidence a letter from President Johnson to the
president of Gyrodyne, dated April 26, 1965, con-
gratulating Papadakos on the fact that his firm was
listed among those recently called to his personal
GYRODYNE COMPANY OF AMERICA, INC.
attention by the Secretary of Defense as having
responded vigorously and effectively to the request
contained in the President's letter of December
1963, and remarking that Papadakos would be
pleased to know that 78 of America's largest
defense contractors, including Gyrodyne, was so
recognized.
Thompson, who, as noted, was the only contract
negotiator on behalf of the Navy during the critical
periods herein, testified that the Company, during
the course of its cost reduction program, had been
successful in its application of a learning curve, and
that within a 2-year period the Company had been
able to decrease the manpower hours necessary to
manufacture helicopters by 300 percent-that is
from 2,740 hours to 930 hours, between fiscal years
1962 and 1964. Through Thompson, the Respon-
dent showed that the Company had estimated 200
less hours for the production of each helicopter on
the 186 drone contract than the Navy's contracting
officers had estimated. The Navy's estimate, ac-
cording to Thompson, was 1,320 man-hours for the
production of a helicopter drone, whereas the
Company built the drone in 1,150 hours. On the
basis of the latest contract negotiated between the
Navy and 'the Company, according to Thompson,
on 930-man-hour estimate as contended by -him,
the delivery schedule at the time of the hearing was
being kept and orders filled and acceptance of
product by the Navy was being taken on time.
B. The Alleged Discriminatory Discharges'
1. Ernesto Petito (discharged March 2, 1964)
Petito, employed by the Company first on March
28, 1960, continued in employment until his ter-
mination on March 2, 1964. During these 4 years
he was employed variously as a parts inspector, as a
flight test inspector, as a quality control analyst, at-
tended a field service school, and then acted as a
field service representative and later as flight line
inspector. He, received four pay raises during this
time, and apparently received no reprimands or
warnings for 'unsatisfactory work. On the basis of
the testimony of Petito, he was discharged without
warning or prior reprimand and later learned from
the State Unemployment Commission that the
reason for his discharge was noted as unsatisfactory
service. He testified that 2 weeks prior to his
discharge he had asked General Foreman Ackles to
release him because he was not returned to his
prior job after being incapacitated because of a leg
injury; that instead Ackles directed Hollwedel to
put Petito to work; that Hollwedel did put him to
work with no reduction in pay; that 2 weeks before
his termination he had rejected the suggestion of
another job opportunity offered to him by Super-
, There is in evidence as G.C Exh 11, a list of all employees who were
terminated or left their job for any reason during the period of January I
through October 31, 1964 This list of 196 names indicates as to each
243
visor -Groff Ward and that he, Petito, told Ward
that he was sorry that he had fought against the
Union in 1962, and that the Respondent needed a
union.
Petito testified to a conversation he had with
Ackles in May 1962, wherein he suggested to
Ackles that "we form a group internally within the
Company:" he suggested to Ackles that they try
and form "something" within the Company, a com-
mittee or a little group which would take care of all
the problems "that we could take care of inter-
nally," rather than have a union come in where
dues would have to be paid "and what have you,
whenever you have a union." He said that Ackles
approved his request and asked him to pick out a
man from each department and that he would set
up an appointment with someone from personnel so
that problems could be aired in respect to those of
each department. A motion to strike this testimony
was granted, whereupon the following offer of
proof was made:
Mr. Leiner: May it please the Examiner, if
Mr. Petito were permitted to testify, he would
testify that pursuant to the directions of Mr.
Ackles, Mr. Petito thereafter met with a
representative of the Company's personnel de-
partment together with the committee at which
notes were taken and grievances heard and
that thereafter after the election in which the
petition Union was defeated, there was nothing
more heard of this committee nor the giving of
gripes. . . . Mr. Petito, if permitted to testify,
would testify to being present at a company-
wide meeting called by and addressed by Mr.
Papakados, the president and chairman of the
Board of Respondent. That Mr. Papadakos
made a speech to all the employees that the
unit employees, by which I mean those entitled
to vote in that election were set aside from
other employees, that Mr. Papadakos made
promises of full pay for jury duty which had
heretofore not been the Company practice.
That Mr. Papakados said and threatened to
hire an ex-union agent, if the Union won and
to treat the employees as though this treat with
the employees through union agent rather than
continue the open door policy which he ob-
served.
These alleged events were said to have occurred
prior to the June 1962 election, involving another
union, the IUE. This offer of proof was rejected
since the events related were too remote in point of
time to constitute proof or evidence of animus in
connection with the instant proceeding; because
they appeared to go to unfair practices totally un-
connected with the issues in this case; because no
charge had been filed concerning any of these un-
fair labor practices and therefore such separate al-
former employee listed his position, department, date of hire, date of ter-
mination , and the reason for the termination . Reasons stated , other than
layoffs by reason of reduction in the workload, are many and vaned
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leged unfair labor practices should not be con-
sidered herein under the limitation contained
within the proviso of Section 10(b) of the Act. In
,my view, the alleged unlawful activities of the
Respondent prior to the election in 1962 are not
and could not be relevant and material to the issues
in this case , even for "background." Too many
events intervened to take them as proof of the
Respondent 's alleged hostility and animus to the
UAW.
Petito, in refusing the job offered to him by
Ward, said that in his estimation that was "no
progress" as far as he was concerned.
The record is barren of testimony going to show
that Petito was a member of the Union or to show
that the Respondent had any knowledge that he
was a member of the Union or testimony to show
that Petito was discharged because the Respondent
was motivated by his union activities . It cannot
properly be inferred that the Respondent held
animus against Petito for union activities from prior
to June 1962, until the date of his discharge in
1964.
Hollwedel testified that he had no knowledge of
whether Petito belonged to the Union or not at the
time of his discharge , had no conversation with
Ward or anyone concerning whether Petito was or
was not a member of the Union, had no instructions
from any , supervisor to terminate Petito because he
was a union member . He testified further that
Petito did not perform his last assignment properly
and that his work was unsatisfactory; that while
working under Coy as a quality analyst, both Coy
and Ward reported to him that Petito was not a
good employee and had had occasion to speak to
him concerning his work habits. Hollwedel said that
he knew Petito 's background and knew that he had
made several requests for change of jobs. Ward,
chief inspector of the mechanical inspection de-
partment, denied that he had any conversation with
Petito regarding any union matters, and that he had
found that Petito was a chronically poor worker.
Ackles denied that Petito had ever told him that he
was dissatisfied with working conditions of the
Company and that the Company needed a union.
At the hearing herein, the Respondent called for
a pretrial affidavit made by Petito and cross-ex-
amined the witness from his statement . That state-
ment showed on its face a date of July 29, 1964,
and as being sworn to on September 1, and con-
tained the sentence " I am certain that my joining
the Union and my taking to employees of my de-
partment was the real cause of my discharge" had
been crossed out and initialled by Petito . It seems
to me ' that he was disgruntled because he did not
receive transfers which he considered to be
"progress," and that here it may be reasonable to
conclude that his reaction resulted in unsatisfactory
work. Indeed , after Petito had told Ackles he
wanted to be fired because he did not get the job he
wanted, Ackles undertook to place him at another
job where he might have been happier.
In the absence of any substantive proof of
Respondent 's knowledge of Petito's membership in
or activities on behalf of the Union, and on the
basis of the preponderance of the evidence in his
case , I find that his discharge was lawful and not in
contravention of Section 8(a)(3).
2. Urbano Giovanniello (discharged March 3,
1964)
Giovanniello was employed on December 28,
1961, in the blade shop , and then as a packer in the
packaging section in Government stores, during
which time he received two increases in pay. He at-
tended three union meetings , the last of which was
in the latter part of February 1964 , about 2 weeks
before his discharge . He signed a union authoriza-
tion card on January 8, 1964. According to his
testimony , he engaged in a conversation with Al-
fieri , supervisor of the motor pool , in an anteroom
adjacent to the packaging department when Alfieri
informed Giovanniello that he had been told that
the latter was a union organizer . Giovanniello de-
nied that he was a union organizer and Alfieri then
asked him whether he had signed a union card, to
which he replied that he had. On March 3, during
the afternoon he said that he and employee Stanley
Svandrlk were called into the office by Jack Burke
(described by him as the foreman of the packaging
department), and Donohue , packaging engineer,
when Burke told them that they were being clas-
sified as Class A packers , and that some 20 minutes
later a person from the personnel department ap-
proached him in the packaging room and told him
that he was being terminated because his work was
not satisfactory.
The testimony of Giovanniello is suspect in
several respects. First , Donohue was laid off on
March 3, the same day Giovanniello (and
Svandrlk ) were terminated , and Burke quit his job
with Gyrodyne effective March 26 . Each of these
two men were leadmen under Hoffman, the proper-
ty administrator for the Company , who in turn re-
ported to Caliendo . The Respondent proved that
neither Burke nor Donohue had the authority to
change classifications or to grant or recommend
wage increases . Hoffman , their supervisor, did not
have the authority , at the time of the discharge of
Giovanniello and Svandrlk , to grant wage increases.
The Company had no established Class A packer
job classification . According to Giovanniello, Burke
"would delegate the packaging to be done that day
and see to it that the jobs were done to satisfac-
tion "; that "everytime a transmission had to be
packed Mr . Burke would send me up to do it"; that
Burke, following the specifications laid down in a
document furnished by the Navy called "Military
Specification Preservation, Methods of" (G.C. Exh.
GYRODYNE COMPANY OF AMERICA, INC.
8) decided whether he had properly packed the
goods, acting in that respect with a Government in-
spector. That is the extent of the testimony con-
cerning the supervisory status of Burke and
Donohue on direct examination. On this basis, it is
clear that neither Burke nor Donohue were super-
visors within the meaning of Section 2(11) of the
Act.
Alfieri denied absolutely that he had any conver-
sation such as that testified to by Giovanniello.
Harry Hoffman testified that he worked under
the supervision of Caliendo as property administra-
tor and that as such, particularly during the period
January through June 1964, acted as coordinator
for the Company and the Government relative to
the handling and controlling of all Government pro-
perty in the possession of Gyrodyne, maintaining
records of all Government property to make sure
that they were properly controlled in accordance
with the Government regulations as well as the
Company's standard practice instructions. Report-
ing to him were Tortorelli, Hendrickson, O'Leary,
Donohue, and Burke together with some 25 or 30
other persons. The named persons were leadmen.
Donohue was a packaging specialist. Burke was a
leadman working with Giovanniello and Svandrlk
until he left the employ of the Company, after due
notice, to go into business for himself.
According to Hoffman, and I believe him,
Giovanniello and Svandrlk were boisterous, con-
tinually made derogatory remarks, interfered with
the work of other employees, engaged in making
jokes, and were usually "fooling around." Hoffman
said that each of them had been reprimanded on
many occasions for their behavior, Svandrlk at least
three times and Giovanniello at least twice. Calien-
do discharged these two employees on the sug-
gestion of Hoffman, after the following occurrence
as related by Hoffman:
I had some visitors, visiting dignitaries, namely,
Navy personnel, in my office. They were audit-
ing my record. We were making a survey of my
property records on the floor to insure that my
balance agreements were in accord with my
records. Mr. Svandrlk and Mr. Giovannellio at
that time were joking around and they were in
a state of a frame of mind that they were mak-
ing quite a bit of noise where they were inter-
rupting my activities with the Navy. This grew
so loud that even it affected me in my office.
At that point, I excused myself from the Navy
and I went to see Mr. Caliendo and I asked Mr.
Caliendo at that point to please take action
because I couldn't bear it any longer. It was to
a point now that it actually was affecting my
work with the Navy, which I was responsible
for in my record.
Alfieri, employed by the Company for something
over 6 years, 'presently is supervisor of receiving,
shipping, and packing. During the period in the
spring of 1964 with which we are here concerned,
245
he was in charge of the motor pool, consisting of
five drivers and himself. The five drivers under him
at that time, in order of seniority, were Robert Mc-
Millian, John Masterson, Peter Roman, Dale
Spicer, and Edward Galvani. These drivers were
employed principally in making pickups and delive-
ries to various suppliers of Gyrodyne throughout
the metropolitan area,- and also transporting Navy
personnel to and from airports. The Company's
cost production program, which will be referred to
at some length below, affected these men insofar as
tenure of their jobs was concerned.
Caliendo testified, in regard to the discharges of
Giovanniello and Svandrlk that Hoffman, whose of-
fice was in the vicinity where these two men
worked, 2 months before the day of their discharge,
reported to him that these two employees were dis-
orderly, boisterous, were affecting the work of
other employees because of their nonsense and
prankish jokes; that at that time he reviewed their
records, which disclosed that they had been written
up for a year for their manners and their insubor-
dination toward Hoffman; that he told Hoffman he
wanted to take some action but that in all fairness
he wanted the men to be given a final warning; that
the day they were discharged Hoffman came to him
in a nervous and distraught condition, informed
him that he, Hoffman, had Navy visitors in his of-
fice and that when he went out to ask the men to
keep quiet they insulted him and were insubor-
dinate. Caliendo spoke to Alfieri, who verified
Hoffman's report, whereupon he authorized Hoff-
man to discharge the two men.
Neither Caliendo nor Hoffman had knowledge of
Giovanniello's interest in the Union, nor did either
of them question Giovanniello concerning the
Union. Hoffman denied that Svandrlk had re-
marked to him "Gyrodyne is a pretty crappy outfit,
that's why there should be a union" or that he an-
swered the comment. Hoffman denied that
Svandrlk ever told him that "his failure to get a
raise was one of the reasons why they should have a
union at Gyrodyne."
I find that the discharges of Giovanniello and
Svandrlk were for cause after they had both been
warned and reprimanded for engaging in the activi-
ties complained of, and that their discharges were
in no way connected with their reported union ac-
tivities.
3. Stanley Svandrlk (March 3, 1964)
Stanley Svandrlk was employed by the Respon-
dent in October 1962 as a warehouseman of
Government stores. During the time of his employ-
ment he did not receive a wage increase.
According to his testimony, he initiated the con-
versation with Hoffman regarding the Union early
in 1963, saying that since he wasn't getting a raise
the Union would be a good thing. He said that he
described his feelings to other employees and spoke
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his interest in the Union freely and openly in his
work area. He said that after he signed a union card
on June 24, 1963, he again initiated a conversation
concerning the Union with Hoffman and that Hoff-
man made no comment. He said that he had in-
formed Harry Hoffman that he was taking steps to
get a union in and had signed a union card. From
his testimony, it appears clear that he was the one
who indicated voluntarily to Hoffman his interest in
and activity on behalf of the Union and that Hoff-
man made no comment or statement in connection
with Svandrlk's remarks to him. He said that all
during the summer of 1963 he continued to speak
about the Union in the, shop, told other employees
about it, was reprimanded for making too much
noise, and upon receipt of the written reprimand
started to discuss a need for a union, telling Hoff-
man "its a pretty crappy outfit and that's why they
should have a union for things like this." Svandrlk
during the periods of time-mentioned continued to
point out the advantages of a union to other em-
ployees, and many times leadman Burke repri-
manded him on the noise he was making because of
complaints from Hoffman.
I have discussed his discharge in connection with
the discharge of Giovanniello, above. I have found
that Svandrlk was discharged for cause and not by
reason of his interest in or activities on behalf of
the Union.
4. The June 19 group (10 employees)
Carmine Dota signed a union card in April 1964
and attended union meetings including the one im-
mediately prior to his layoff. His termination was
'caused, according to the Respondent, by the
elemination of the packaging function to which he
previously had been assigned. He was given another
job but could not hold it because of the nature of
the work which he was physically unable to per-
form. He was advised by his supervisor to submit
his resignation from the job, rather than to go on a
layoff status or quit, to preserve his unemployment
compensation rights. This he did. Bruno, the lead-
man referred to as the foreman, actually did not
have the authority to either lay off or to accept
Dota's resignation when tendered. Although Bruno
assisted Dota in framing Dota's letter of resigna-
tion, it was Hollwedel, in overall charge, who
authorized the acceptance of Dota's resignation.
On behalf of the General Counsel, it is said that
the record here shows that the Respondent did not
entirely eliminate its packaging function as of June
19, but that work was still being done by the com-
pany employees and not by a subcontractor; that
the Respondent was using an employee of Allied
Maintenance, Inc., its cleanup and maintenance
contractor, to do packaging for it immediately after
the employee had been laid off. It is also claimed
that the record shows that the Respondent was
using supervisory and clerical employees to do
packaging on weekends and at night both before
and after the June 19 layoffs of its own packaging
employees. This may be literally true, in connection
with the use of other employees to do certain
packaging, but it does not meet the actual fact that
for economic reasons, described below, the
Respondent prior to that time had subcontracted its
packaging department to Abilities, Inc., which
eliminated certain jobs, and consequently resulted
in reduction of the Respondent's work force. The
job assigned to Dota after his job was eliminated
was another job involving preparation work for
packers, and not the handling of heavy equipment.
Nevertheless, because of his physical disability, he
was unable to continue at that work. Hollwedel
testified that as a part of the reduction of work
force he had intended to layoff one Howlett, who
had less seniority, but since Dota requested a
layoff, Howlett was assigned to the remaining job.6
Dota knew that the Company had subcontracted
its packaging department and had no further need
for employees in that area. There is no proof that
the Company's action was motivated by a desire to
get rid of Dota because of his interest in the Union,
and I can find nothing in the record to indicate that
the Company had knowledge, direct or indirect, of
Dota's union activities. I cannot find that Dota was
laid off because of his union activities, and shall
therefore recommend that the complaint in this
respect be dismissed. It may be remarked that there
is no evidence that Dota was subject to duress or
deceit at the time he submitted his resignation. The
Respondent, relying on Crescent Wharf &
Warehouse Co., 104 NLRB 860, asserts that Dota's
voluntary resignation of his employment which was
accepted by the Respondent, who thereupon laid
him off pursuant to his request, was lawful and non-
discriminatory. The facts in the case of Dota reflect
the soundness of the Respondent's position.
I On rebuttal, counsel for the General Counsel made an offer of proof to
the effect that if the vice president of Abilities, Inc , were permitted to testi-
fy, would testify that:
Prior to and on or about February 20, 1962, he visited the Gyrodyne
Corporation of America and .on behalf of Abilities, Inc , then and
thereafter continuously discussed with Gyrodyne the advisability of
permitting Abilities, Inc., to perform the packaging function, and also
to discuss the advantages in terms of labor cost with regard to the
benefits of labor, cheaper labor at Abilities than at Gyrodyne, and
Gyrodyne was not interested at that time, that Gyrodyne, in or about
December 1962, and thereafter, did not desire any action of Abilities,
Inc , with regard to labor in the packaging, or to do any packaging, but
only wanted Abilities to supply packing materials And then in or
about March or April, 1964, for the first time a contract or purchase
order, pursuant to a contract, was delivered by Gyrodyne to Abilities,
Inc., calling for labor and materials to be devoted to the packaging of
goods supplied by Gyrodyne to Abilities, Inc., and that no packaging
whatsoever was performed by Abilities for Gyrodyne until April of
1964. This offer was rejected as not being proper rebuttal Counsel for
Abilities, Inc., indicating an unfounded offer, stated ". . that the
recitation just given does not completely accord to the minutia of
evidence on the' facts that were recited and the manner in which it was
presented to the Examiner."
GYRODYNE COMPANY 'OF AMERICA, INC. 247
Michael Billone, employed as an inspector in the
packaging inspection department from April 1962
until the date of his termination on June 19, had
signed a union card in January 1964 and commu-
nicated that fact to leadman Bruno in March or
April. He attended a union meeting held in March.
Billone received special training as a packaging in-
spector at a military packing school in Toledo,
Ohio. During the course of his employment he
received four pay raises, the last one in January
1964. According to his testimony, sometime in
April or May he told Bruno as well as one Lafrino
and other employees that he had joined the Union
and he 'thought they needed the Union-that this
statement was made in the presence of about five
men in the packaging area. On cross-examination,
Billone said that he knew that the Company had
subcontracted its packaging to Abilities, Inc.,
because that company could package cheaper or
more economically than the employees employed
in the packaging department.
Frank Lodato was one of two package inspectors,
the other being Michael Billone. Lodato signed a
union card and attended several union meetings, in-
cluding the June 17 meeting immediately prior to
his layoff. He testified that in late May 1964 he
spoke to Joe Bruno, a leadman, about something
good in the union literature, to which Bruno replied
that anyone who wanted to join the Union was lazy.
Lodato answered that his past membership in the
UAW caused him to believe it was a good Union.
Counsel for the General Counsel in his brief
mistakenly enlarges the testimony by stating that on
June 22, immediately after the packaging depart-
ment had been eliminated (but packaging by
Respondent's nonpackaging employees and by third
persons on Respondent's premises was going on at
night and on weekends), and after Respondent's
need for packaging inspectors had been
"eliminated," the Respondent appointed two new
packaging inspectors, Mastrangelo and Mullins,
both of whom were unfamiliar with the complex
details of military packing inspection, neither of
whom had had any training as packaging inspectors
prior to Billone and Lodato being laid off, not-
withstanding that Respondent allegedly knew of
Billone and Lodato being terminated 3 weeks be-
fore the June 19 layoffs, and notwithstanding that
the Navy would not accept Respondent's product
without proof of proper inspection. Counsel for the
General Counsel goes on to state that, needless to
remark, the work previously done by Billone and
Lodato was now being done by the "new" packag-
ing inspectors; that the new inspectors didn't know
what they were doing, according to the Navy, so
much so that the Navy's packaging inspector had to
spend twice as much time in the packaging inspec-
tion department after Billone and Lodato were ter-
minated. Actually, the record shows that Abilities,
Inc., which employs a staff of handicapped persons
trained or endowed with particular skills and par-
ticularly adept at packaging, contracted to do the
packaging work formerly done by employees of
Gyrodyne. As shown by the testimony of Johathan
J. Rosenblatt, presently employed by the Bureau of
Naval Weapons as representative at Bethpage,
Long Island, he was previously employed by the
Navy at the Gyrodyne plant from September 1963
to November 1964, where he was assigned the du-
ties of inspector, air craft electronic systems,
primarily as an avionic inspector of the receiving
department, in shipping, and secondarily in final in-
spection of aircraft, as well as witnessing flight
tests. While employed there, he was not responsible
to any of company management for the per-
formance of his duties. In the course of his work he
did from time to time talk to Billone and Lodato.
According to Rosenblatt, he received a telephone
call from Billone on June 19, who said that he and
Lodato had just been terminated and "he was con-
cerned that there was no inspection coverage for
the company." Rosenblatt said that he immediately
telephoned the shipping department to verify
whether or not they had indeed been terminated
and when told they were not around, he went to the
shipping department to verify the fact and
"promptly instructed them that there would be no
more preservation and packaging until they had in-
spection coverage." Relying on the testimony of
Rosenblatt, counsel for the General Counsel says
that the Respondent appointed two new packaging
inspectors, Mastrangelo and Mullins. This is not the
fact as is clearly apparent from the testimony of
Rosenblatt. Mastrangelo and Mullins, after, his ac-
tion on June 19, were brought in from theirrespec-
tive jobs to "cover" the packaging area. Mastran-
gelo was in the receiving department of avionic,
meaning electronics equipment, where he inspected
what Rosenblatt called "bits and pieces." Mastran-
gelo, when he started. work on June 22, was as-
signed the duties of preservation, packaging, and
shipping inspector as well as avionic inspector.
Further, according to Rosenblatt, Mullins on June
19 was an inspector in the final assembly area, and
after June 22 he observed Mullins acting as a
packaging inspector for the blade and transmission
parts used in the assembly of a helicopter.
Rosenblatt filed a memorandum commenting on
a rejection of goods in the shipping area dated 2
July 64, stating that on 19 June 64, the shipping in-
spectors were removed and on 22 June replaced
with personnel unfamiliar with preservation,
packaging, and packing procedures. The company
inspector, Coy, commented on Rosenblatt's
memorandum, stating that since the major work-
load in packaging and preservation was trans-
ferred to an experienced subcontractor, a part-time
inspector was considered to be adequate. He
further noted that Quality Assurance personnel
responsible for formulating the packaging and
preservation procedures spent approximately 16
working hours with the inspector assigned to the
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job, who had some prior experience in the field,
and that written instructions , forms , and specifica-
tions were furnished and all necessary assistance
was constantly available . On the face of a
memorandum dated 20 August 64, Rubenstein
noted that the reason for rejection of certain parts
were that kits are delivered to the shipping depart-
ment ready_ for shipment without being checked by
"O.C." as- a kit. To this Coy replied on the
memorandum that kits were normally drawn from
accepted parts in stores and inspected as kits upon
receipt in the shipping department , prior to
completion of the packaging operation. He said
further that the shipping department had been in-
structed not to present any items for customer ac-
ceptance prior tov inspection and acceptance by
"G.C.A. inspection." A memorandum to Quality
Control Director Hollwedel, dated 21 August 1964,
signed by G. J. Simone, attached to the office of the
resident-in-charge of the Bureau of Weapons
(memorandum number 121, dated 20 August 1964,
and apparently referring to one of the two filed by
Rosenblatt), complains that "the reports sighted
[sic] have not been answered, with corrective ac-
tion" asserted that "your department refused to fol-
low the instructions stated in reference (a)" and
that if the procedure continued it would be neces-
sary for Simone to take steps to bring about the
corrective action required by his office. All this
simply means that after the time Abilities, Inc., un-
dertook the subcontracting , and during a period of
rapid growth of the company, there was the usual
ordinary disruption to be expected in an operation
of the type conducted by the Company. There is
nothing to support the contention that Billone was
fired because of his prounion sympathies. Obvi-
ously, he himself was the one who brought his in-
terest in the Union into prominence by his an-
nouncement to Bruno and others that he had joined
the Union and he thought "they needed the
Union,"
Joseph M. Bruno was first employed by
Gyrodyne in about November 1962. During' the
period January through June 1964, he worked first
as a leadman in the receiving department until
about the month of May, when he was transferred
to leadman, in the shipping department , reporting
directly to Louis Alfieri in the receiving department
and to Harry Hoffman in the shipping department.
(His testimony in connection with the employment
and termination of Dota was substantially the same
as set forth above.) He denied having discussed
union literature with Lodato, or that he had told
him that anyone who would want to join the Union
had to be lazy, or that he had ever discussed union
activities with Lodato. He said that he did not know
whether L'odato had joined the Union, had gone to
meetings or was sympathetic with the Union, that
he never discussed any of the union pamphlets or
throwaways with Lodato and that he never heard
Zafrano tell Lodato he had better keep his big
mouth shut or he would get into trouble , and de-
nied that he heard Lodato invite Zafrano to a union
meeting. He denied absolutely the testimony of Bil-
lone to the effect that Billone had informed him
that he signed a card for the Union or that Billone
had informed him or Zafrano of his interest in the
Union and his signing a card or that Billone-had
told Zafrano in his presence that he had furnished
an authorization card to the Union. He stated Bil-
lone had never told him that he thought a Union
was needed in the plant because of the way it was
run.
There is no probative testimony contained within
the record to show that Bruno was a supervisor.
Obviously he did not have any of the powers or dis-
cretion enumerated in Section 2(11) of the Act
which would make him a responsible agent of the
Respondent. The contention that Bruno was a
foreman or a supervisor is simply a conclusion
based on uninformed opinion . Even though the
statements attributed to him were made, which I
doubt , they would not be binding on the Respon-
dent.
Under the Jencks rule and the Jencks statute,'
counsel for the Respondent called for pretrial state-
ments or affidavits made by the witness prior to the
hearing. It appears that this witness, Billone, signed
two statements, one dated July 2 and the other
November 7, 1964 . In his statement of July 2, the
witness swore that "I never spoke to any leadman,
foreman, or other supervisor about the Union, I do
not know how the Company knew I was in favor of
the Union ." He said that later in November he
made some changes in the statement wherein coun-
sel for the General Counsel inserted certain words
in his handwriting , initialed by the witness, without
change of date, the statement of July 2 being
changed to read "I never spoke directly to any
leadman , foreman, or supervisor about the Union
except Bruno ...." I have heretofore found that
Bruno is not a supervisor . The conflicting state-
ments of witness Billone impair his credibility. On
all the facts pertinent to his case, I shall recom-
mend that any portion of the complaint, as
amended , relating to him , should be dismissed. I
shall make the same recommendation in the case of
Lodato.
Peter Roman , Dale Spicer , and Edward C. Gal-
vani, three of five expediter drivers, were laid off
on June 19. Roman first was employed in 1962, his
duties including the picking up of machinery parts
consigned to Gyrodyne by its vendors for helicopter
manufacture . Roman signed a union card and at-
tended union meetings between sometime in
February and his termination on June 19, dis-
' Sec 102. 118, Board 's Rules and Regulations, Series 8, as amended; 18
U.S CA 3500.
GYRODYNE COMPANY OF AMERICA, INC. 249
tributed some 10 union cards among employees
and many times solicited the signature of McMillan,
who sometimes filled in during the absence of Al-
fieri. He claims that at the times he solicited Mc-
Millan , Alfieri was only about 5 feet away and ob-
served the incidents. Galvani signed a union card in
March.'
According to his testimony, Roman attended a
golf tournament sponsored by the Respondent
where he had a conversation on the putting green
with Louis Jansky who, he said, was a supervisor in
charge of the experimental blade shop. This con-
versation was supposed to have taken place in the
presence of Dale Spicer,, Woody Russell , and Andy
Boye. Jansky is an engineer in the research and
development program; he is not a supervisor in
charge of the experimental blade shop, as claimed
by Roman. Roman mistakenly identified Lionel
Marten as Jansky's assistant when in fact Marten is
Jansky's supervisor. Jansky denied the conversa-
tion, saying that he met Roman on the putting
green , shook hands with him, did not talk to him
about the Union, and "I was just wondering that he
was still not with the Company because I was on
the road at that time, a week before the tournament
or two weeks, I don't know. I am still on the road
every week so it is very hard to, you know, re-
member." On the mere statement of Roman that
Jansky was a supervisor, and the denial thereof by
the Respondent, I cannot find that Jansky was or is
a supervisor within the meaning of the Act. Ac-
cording to Jansky's testimony, which I credit in
view of the rather rambling testimony of Roman, he
was away from the plant at the time Roman was
laid off. If this be true then Roman was not laid off,
as contended by him, after his alleged conversation
,with Jansky. Roman was aware of the fact that the
two drivers retained by the Company had greater
seniority. (The conversation as related by Roman
was to the effect that Jansky said to Roman that he
heard that Roman was a union agitator.)
Galvani testified that before he was laid off, and
knowing that he was going to be transferred from
his then job to another job in the plant, he talked to
Ackles and told Ackles that he had worked for a
fuel company; that during the course of that con-
versation Ackles looked- directly at him and said
"about this union," that Galvani immediately said
he did not know anything about the Union. Galvani
also testified to an interview with Caliendo during
which he was shown a chart setting out the various
jobs in the plant; that Caliendo had suggested he
might be qualified to do expediting in the plant but
upon review of Galvani's qualifications for that job,
Dominick Aversano, Caliendo's subordinate in the
expediting department, did not think he was
qualified.
Spicer, the other of the three driver expediters
discharged on June 19, did not testify. There is
nothing in the record to show that the Company
had knowledge that Galvani was interested in the
Union at the time of his discharge.
Caliendo, responsible for the shipping and receiv-
ing departments including the motor pool, testified
that beginning in October 1963 the Company
reviewed the cost incurred by its motor pool and
reviewed its operations in relation thereto and that
during the course of this review it was recalled that
during the research and development stage of the
Company, it was required to borrow materials from
its stores, getting near drawings of new prototype
equipment and hand-carrying the information back
and forth to the suppliers because of the type of
design that was established; also, machine parts
were ordered from the vendors, received by the
Company, inspected, handled, packaged, crated,
and taken to trucking agents to be distributed -to
machine companies. Thereafter, a change was
made in this type of operation, the purchasing de-
partment being instructed to have the machine
parts orders shipped directly from the manufac-
turers to the machine houses, instead of being
shipped to the Respondent before shipment to the
machine houses. The procurement department was
required to have suppliers ship merchandise F.O.B.
St. James instead of F.O.B. their plant, this change
being effected in March 1964. It was explained by
Caliendo that after the Company's transition from a
research and development company to a produc-
tion company, it no longer needed rush shipments,
could estimate the lead time for a particular, item so
that by requesting that all shipments be made
F.O.B. St. James, it was found that the workload
was reduced by about 65 percent and consequently
a surplus manpower situation developed' in the
motor pool. In June 1964, Alfieri, advised-Caliendo
that he had extra drivers, and inquired, how they
should be used. Caliendo instructed him to use
them in other ways until he could determine
whether he could transfer the men to other depart-
ments. After surveying the list of surplus personnel,
he promoted some men to higher jobs and created
openings in lower level jobs in order to utilize most
of the excess manpower. By virtue of the changes
made, he was required to reduce the motor pool by
three men. He considered both seniority and basic
qualifications. He found that Roman had no
background othex than service in the New York
City fire department, from which he had retired. He
found that Spicer had had some background in
working with the raw material supplier, arranged an
interview with him to find out whether he had
knowledge of various types of metal, and -thereafter
sent Spicer to see Mancini, supervisor in the
" Roman also solicited the signature of employee Masterson in the that Roman deliberately advertised his membership in the Union by such
presence of Alfieri. From this, I infer that the Respondent through Alfieri repeated solicitation when Alfieri was in the immediate vicinuy,
had knowledge of Roman's union membership , I am also inclined to believe
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine shop. Mancini interviewed Spicer and re-
ported back to Caliendo that Spicer would not be
qualified for work in his department because he
had no knowledge of the handling of-machine parts;
Mancini felt that it would require too much training
to qualify him for the job and further Mancini had a
qualified man available for that work.
Caliendo testified that he arranged to interview
Galvani, that Galvani told him that he had a
background in the oil burner services, whereupon
Caliendo arranged an interview for him with Ackles
in regard to a possible opening in the maintenance
department which handled that particular type of
work. After Galvani's interview with Ackles, the
latter called Caliendo and told him that Galvani
had no knowledge concerning oil burners or main-
tenance equipment, but that his experience was
only in driving an oil burner truck and not in servic-
ing oil burners. Ackles denied the statement at-
tributed to him by Galvani-"now about this
union-."
Alfieri also discussed with each of these men the
lack of work in the motor pool and the possibility
of their transfers to other departments. Alfieri
testified that he asked Roman if he was interested
in another job to which Roman replied that he was
not interested because he was going to Florida and
did not want to make a career of any job in the
plant. Alfieri said he mentioned a clerical job which
Roman refused because he said he did not want to
be confined to a desk. Alfieri's statement that
Roman did in fact go to Florida is not denied. Al-
fieri said that Spicer accepted a job in the shipping
department on a trial basis, and for about 2 weeks
prior to his layoff he was engaged in shipping small
commercial packages under the supervision of Al-
fieri. Alfieri testified that he had never questioned
the activities of any employee in regard to the
Union.
As of the time of the close of the hearing herein,
there had been no replacement in the motor pool
department of any employee on a permanent basis.
The reasons given by the Respondent for the
reduction of force in the motor pool seemed to me
to be valid and in accordance with the overall pro-
gram for reduction of costs and use of less man-
power throughout the plant. I am impressed by the
fact that McMillan and Masterson had more service
with the Company than Roman , Spicer, or Galvani
and I am further impressed by the efforts of Calien-
do, Ackles, and Alfieri to place these three men el-
sewhere in the plant. There is not sufficient proof
of company knowledge of their respective union ac-
tivities, ^'or other motivation to enable me to find
that their, discharges were discriminatory in nature.
Edward Pacilio, employed as a utility main-
tenance man in September 1963, was terminated
June 10, 1964. He signed a union authorization
card on October 10, 1963. He testified that a few
months before his termination, he had a discussion
with Edward Rogiensky, maintenance foreman and
his supervisor, while they were loading cabinets
into a truck for removal to another building. He
said that Rogiensky picked up a UAW card he
found lying on the floor, asked Pacilio to send it
out, that Pacilio said he had already done that
whereupon Rogiensky laughed about it and threw it
into the wastepaper basket. On cross-examination
Pacilio said that the conversation he reported on
direct examination was a jocular one, and that the
two of them laughed about it. After that, Pacilio
said he asked Rogiensky for a raise, and was told
that he had been put in for a 10-cent raise. He was
given a 5-cent raise, told Rogiensky he was not
satisfied with it, and thereafter was terminated by
notice from the personnel department, being ad-
vised that the cause of his discharge was for un-
satisfactory work.
Rogiensky refuted the testimony of Pacilio. He
denied that he had ever picked up a UAW card and
asked Pacilio to send it and that Pacilio told him
that he had already sent such a card in. He testified
that he did not know whether Pacilio ever was en-
gaged in any activities in behalf of the Union; that a
few months after Pacilio was given a raise he
slowed down in his work and as a result Rogiensky
reported the fact to Ackles who decided to ter-
minate Pacilio. Ackles had knowledge of the prior
raise given to Pacilio but nevertheless terminated
him on a review of his work record and on the basis
of Rogiensky's recommendation. Regarding Pacilio,
Ackles testified:
Well, I had very little to do with the man as an
individual, but his foreman, Mr. Rogiensky,
had come and discussed him several times that
he was dissatisfied with the work that he was
turning out and there again , if a man isn't turn-
ing out quality, what we insist upon, he cannot
be a part of our staff.
In the face of the denial of Rogiensky that the al-
leged conversation revolving around the UAW card
occurred, and because Pacilio said that the conver-
sation as reported by him was conducted in fun, I
will not draw an inference that the discharge of
Pacilio was motivated because of the fact that he
had signed a union card in October 1963, long
prior to the alleged occurrence.
Richard Waltz, employed November 13, 1962, as
a material handler, was terminated on June 19,
1964. Alfieri supervised his work until June 1965,
and after that he was under the supervision of
Dominick Aversano. He was a recipient of three
pay raises; he was complimented at times on his
work, he said, by Caliendo and Aversano. He
testified that he signed a union card during the
latter part of 1963 or sometime in 1964; that he at-
tended half a dozen union meetings , the last one
being in the beginning of March 1964; that he dis-
tributed six or nine union cards among the em-
ployees; and that Alfieri had asked him, early in
March 1964, whether he was at a union meeting
and when he replied yes, Alfieri made a gesture of
GYRODYNE COMPANY OF AMERICA, INC. 251
"goodby." His termination was based on his work
habits, being told upon his discharge that it was due
to the fact that he was an unhappy employee and
that he had been grumbling about the tools he had
to work with.
Waltz as a witness was not impressive. He at-
tended a union meeting, he said, in March 1964,
the last one he attended, but could not remember
any of those who were present although there were
only a small number at that meeting. He explained
he was not interested in who was there, although he
was active in the union organization campaign. He
solicited nine men in his department, signed up
three of them, and continued solicitation from
sometime in 1963 through June 1964. Billone had
testified that he had ridden with Waltz to a union
meeting, but Waltz could not remember this. The
conversation he said he had with Alfieri was in
March 1964 but he was not discharged until June
19; he said he saw Alfieri from 10 to 20 times a day
but never asked employees to sign union cards
when Alfieri or Aversano were near him.
Here again there appears a situation which casts
more than a shadow of doubt over the testimony of
this witness. He said he furnished a signed state-
ment for a Board representative sworn to July 2,
1964. In this affidavit he stated that he never had
any conversation with any supervisors relating to
the Union. In March 1965 an attorney attached to
the Regional Office of the Board inserted in that
statement certain words which the witness initialed
but did not swear to which changed the statement
to read as follows:
I never had any conversation with any super-
visor relating to the Union, except with Louis
Alfieri in around March 1964. He asked me if I
had gone to a Union meeting the night before,
I told him I had tone, he made a common
gesture and sound "Weeee" he then said
"goodby."
He denied positively that he had gone to the
union meeting in November 1963 in Hicksville with
Billone , although his memory was refreshed by a
reading of Billone 's testimony. Further, his
testimony contradicted his signed statement. On
July 2 he swore that the last union meeting he at-
tended was on June 3, 1964; at the hearing herein,
he said that the March meeting was the last one he
attended.
Alfieri is a retired police lieutenant. Waltz is a
retired fireman of the city of New York. In
response to a question on cross-examination as to
whether or not Waltz had told Alfieri "this ..
place will finally be straightened out when the
Union gets in and I don't need the job. All you and
I need is a small job with our pensions " he replied
"you can tell Lou Alfieri he is full of .... That is
from me to you." This may or may not constitute a
denial.
Caliendo testified that he knew Waltz was a
material handler working a forklift truck; that his
opinion of him was that he was strong and rugged
and addicted to the use of profane and vulgar lan-
guage. Alfieri, who first supervised Waltz as a
material handler after 1963, testified that Waltz
operated a forklift in a building adjacent to an area
where there were five women employees; that he
found Waltz to be a very good worker, but one who
used an excessive amount of profanity while doing
his work; that Waltz was loud and boisterous and
used vulgar language in the vicinity of the women;
Alfieri warned and admonished him several times
about the use of his profanity and finally, early in
the year 1964, advised Caliendo of the situation.
Alfieri thought that Waltz should be discharged;
however, Caliendo thought it might be a personal
feud between the two, discussed the situation with
Assistant Personnel Director Aylward and finally
decided that Waltz needed a change of supervision.
He transferred Waltz to work under Aversano, in
dispatching and expediting, to work in other
buildings away from the receiving department.
Waltz started working under Aversano in the spring
of 1964. A comparatively short time thereafter,
Aversano informed Caliendo that Waltz was engag-
ing in the same type of speech and creating the
same disturbances that he had when he worked
under Alfieri. Caliendo decided to continue Waltz
in his job in the hope that he would improve but
when Waltz cursed Aversano in front of other su-
9 ervisors, Aversano's recommendation that Waltz
e discharged was accepted by Caliendo. Accord-
ing to Caliendo, the final reason for Waltz'
discharge was his insubordination and not his
profanity. Waltz refused assignments of work and in
doing so used vulgar and profane language. I cer-
tainly can believe that Waltz was capable of using
the language attributed to him by Caliendo, Alfieri,
and Aversano in the light of the language used be-
fore me at this hearing.
Alfieri denied any questioning of Waltz or con-
versations with Waltz or making any threats to
Waltz concerning the latter's union activity. Aver-
sano was positive that Waltz' union activities or
membership had nothing to do with his discharge.
I shall find that Waltz was discharged for cause
and recommend that the complaint be dismissed in-
sofar as it concerns him.
Joseph Damato and Martin Pipia, employed in
the blade shop, were discharged on June 19, 1964.
Damato, employed on January 21, 1963, signed a
union card dated March 10, 1964. Pipia, employed
on January 2, 1963, worked in the blade depart-
ment in the hand contouring section, where blades
are shaped out to the correct radius according to
measurement and specification. Pipia was the only
man in the blade section who repaired blades. He
signed a union card dated April 23, 1963, and at-
tended all union meetings during the years
1963-64, the last of which was in June or July
1964.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Damato was the self-styled fastest blade builder,
relating that he could build a blade in 17 minutes as
against the next fastest blade builder who took 45
minutes to build a blade. His speed, however, was
offset, according to the testimony of Respondent's
witnesses Bob Southworth and Albert Morel, lead-
men in that department, by erratic and inaccurate
work on the blades.
Damato testified to several conversations with
Southworth, who he said was a supervisor,' concern-
ing the Union; that on one occasion he said that he
told Southworth that he had signed a union card
and suggested if Southworth were smart, he would
do the same thing and later, at, the June 3 union
meeting, called Southworth a "barefoot, backward
farmer" after which, he related, his former warm
relationship with Southworth changed to an at-
titude of unfriendliness, but he continued to ask
Southworth to sign a union card. Damato also
testified to a conversation between himself and
Morel, whom he regarded as a supervisor, when
Morel is said to have turned around and said to Da-
mato that union was a dirty word in the shop. Ac-
cording to Damato, he taught the job of working in
the glueing section and the autoclave to
Southworth, and some 12 or 13 other people, and
changed the system of building blades, teaching
Southworth his new system. He said that foreman
Dennis was acquainted with the fact that he had in-
augurated a new system of building blades. During
about the middle of June 1964, Damato related an
incident when Morel motioned him to go into the
men's room where he was told by Morel that "they
are out to get you" and when Damato asked who
was out to get him, Morel told him it was Dennis.
On June 19 Dennis sent him to the personnel of-
fice. He was laid off at that time for slowing down
on the job.
It was shown that Damato contracted a hand dis-
ease from using glue without protective gloves, and
received medical attention which was paid for by
the Company.
According to Pipia, he received a telephone call
from Peter Bohler, formerly a leadman in the in-
spection department who had been terminated by
the Respondent several months prior thereto, who
told him that Dennis had told him (Bohler) he had
found out who was attending union meetings, that
he was going to fire him on any wrong move and
suggested that Pipia not say anything to leadman
Morel. Bohler as a witness simply said that he had
told Pipia that his union activities were known in
the shop. However that may be, Pipia said that on
the following Monday morning he approached
Morel and told him about the conversation with
Bohler, 'to which Morel replied "did Bohler tell you
that?", and Pipia said he did not answer him but
just walked away. He said that he later was called
out of the building and told to see Dennis and
Morel, at which time Dennis asked him why he was
telling the men that he, Dennis, was going to fire
him because he attended union meetings when it
was none of his business, and that all he wanted
from Pipia was to get out his work. Pipia related
that during the following week Bohler called at his
home about 7:30 p.m., that they went for a ride in
Bohier's car and Bohler told him that he, Pipia, was
known as "Mr. A" in the blade department, was
considered a union organizer, and told him not to
mention the fact that Bohler had talked to him to
Morel. Then, according to Pipia, a week or two
later he was discharged, being told by the personnel
department that the foreman had been complaining
because he was leaving his bench too"often. He said
he was never reprimanded for being absent from his
bench too frequently, although he did recall that
when Dennis returned after an absence caused by
sickness in about the middle of March 1964, he
told Pipia that the latter had not produced enough
work while Dennis was away. Pipia said he did not
consider this criticism to be a reprimand. Pipia re-
lated the circumstances of an argument with Don
Karmel , his leadman , at a time when Karmel tried
to tell Pipia how to work and when Pipia argued
with him, saying that he was teaching Karmel how
to do the work because he felt he was the most
skilled man in the department and knew that every-
one was cognizant of his ability.
Again the accuracy of pretrial statements was
brought to the front when Pipia testified as to hav-
ing given his statement to his lawyer "Ben" and to
counsel for the General Counsel. He remembered
that he had attended all union meetings but could
not recall at which meeting he met Roman, who
testified that he had attended many union meetings,
whether in 1963 or 1964. Further, although he had
been working on behalf of the Union, as he said, for
about a year and a half and had spoken to many
other employees, he did not know how many em-
ployees he had spoken to in connection with the
Union's organizing effort.
Dennis, the foreman in the blade shop, charac-
terized Damato as a "goof-off" who some days
made blades in short extended periods or in overly
extended periods of time. Because he was an in-
and-out worker, Dennis, at the time of the reduc-
tion in force in the blade shop, recommended Da-
mato's discharge and Ackles accepted the recom-
mendation. No one replaced Damato in his job.
Southworth, the leadman to whom Damato at-
tributed antiunion statements and actions,,denied
that he had ever had a conversation in which Da-
mato told him that he had sent in a union card and
suggested that Southworth do the same , , and that
Southworth was told by Damato that the latter had
signed or sent in a union card or suggested to
Southworth that he sign a union card. Southworth
said he did not know that Damato was interested in
the Union or whether Damato had attended a union
meeting or that Damato had invited him to a union
meeting . It is contended that Southworth at the
times mentioned was a supervisor within the mean-
GYRODYNE COMPANY OF AMERICA, INC.
ing of the Act, this contention being denied by the
Respondent. On the basis of the testimony of Da-
mato and Reichle, an employee of 2 weeks in late
May and early June 1964, alone, I cannot find that
Southworth was a supervisor, in that it is not shown
that he had any discretion in respect to the
direction of the men in the blade department. Op-
posite to this, the testimony of Southworth is to the
effect that he had no such discretion or supervisory
powers, but simply as a leadman took orders from,
Dennis in regard to assignments of work and ob-
served that the work assigned to the men was being
done properly. Southworth, I find, was not and is
not a supervisor within the meaning of the Act.
Consequently, the alleged conversations and ac-
tions as related by Damato and attributed to
Southworth, even if they occurred, which I doubt,
would not be binding on the Respondent.
Damato also claims that Morel was a supervisor.
Morel, a credible witness, denied the conversation
with Damato in-which he is supposed to have said
that union was a dirty word in the shop. According
to Morel, he did have a conversation with Damato
in the men's room when he told Damato to stop
goofing off and to adhere to the safety measures
required by wearing gloves and plastic sleeves while
he was working on the glue machine. Nor did
Morel recall any conversation with Pipia wherein
he was supposed to have said that "they found out"
he was attending union meetings and that Dennis
was going to fire him.
As noted, Pipia was discharged upon the recom-
mendation of Dennis to Ackles because he was an
unsatisfactory worker. According to the testimony
of Dennis, he was away from work because of ill-
ness on a Thursday and Friday of a week in May
1964, that when he came back to work on the fol-
lowing Monday he noticed that there were not
enough finished blades, spoke to Morel and then
with Pipia about it, after which Pipia asked him
"What are you going to do?-pick on me now that
you know I'm in the Union?" to which Dennis
replied that the Union had nothing to do with it,
that he didn't want to discuss it, but rather he
wanted to see Pipia because he wasn't giving the
company a fair day's work. I accept the version of
Dennis to that of Pipia in regard to this conversa-
tion.
The General Counsel relies on the testimony of
Peter Bohler, a friend of Morel, who, it is said, told
Pipia that he was known as "Mr. A." The reference
to "Mr. A" goes back to the year 1962 in the or-
ganizing efforts of the IUE at that time, which I ex-
pressly excluded from the record but which the
General Counsel put in over my ruling and which I
now allow to stand. I will discuss the testimony of
Bohler below and will find that his testimony is not
to be believed in any material respect.
To show that Morel is a supervisor, the General
Counsel asked me to take official notice of the
proceedings in Case 2-RC-12006 wherein, on June
253
14, 1962, the Respondent challenged Morel's right
to vote because he was a supervisor. Certainly on
the basis of the action of the Respondent at an elec-
tion 3 years prior to this case, I cannot assume that
Morel received a perpetual accolade of supervisor-
ship.
I find that the question of union activity did not
enter into the selection of either Pipia or Damato
for discharge on June 19, 1964.
5. The June 29, 1964, group
Employees in the mechanical inspection depart-
ment terminated on June 29, included Marsan and
Hurley, mechanical inspectors in the machine shop;
Schmidt, a mechanical inspector in the blade shop;
Wysocki, a /mechanical inspector in the casting,
forging and processing area; and Powell and Pu-
terio, mechanical inspectors in receiving. On that
day Augustus Bentivegna and William Fluellen, em-
ployed in the blade shop, also were terminated as
were Walter Kargauer and John Wolf in the
machine shop and Frank Vella, August Priete,
Robert Martinez, Michael J. Petralia, Wallace Wall,
Frank Lupardo, George Fallo, and Robert Bernar-
dine in avionics inspection.
Stewart Powell, employed in October 1963 as a
mechanical inspector, signed a union card dated
November 13, 1963. He testified that he spoke to
almost every employee in that department other
than Hauck and Ward, spoke to the leadman in that
department including Roland Bacchus, and in his
conversation with Bacchus mentioned that the
Union might improve wages to help the employees
and that Bacchus replied that he was against it
because he had been through union negotiations
before. He testified that after he was terminated on
June 30, at his boatyard at his home, he had a con-
versation with Bacchus, asked why he got laid off,
and that Bacchus told him "You got involved, you
know what I am talking about." He did not recall
that Bacchus had mentioned the Union.
It was shown that while he was employed he
received a written reprimand which he refused to
sign because he said only part of it was true. Powell
testified that Bacchus, during his employment, as-
signed work, changed work assignments , and was
instrumental in getting him a pay raise. Warren
Hauck was the assistant foreman in the receiving
mechanical inspection 'department at the time,
under the supervision of Groff Ward. Between
January and June 1964 Hauck had approximately
24 people under him, including several leadmen.
Bacchus, one of these leadmen, had no more
authority than any of the other leadmen and no
such discretion as to bring him within the definition
of a supervisor as contained in the Act. His duties,
like the other leadmen, were merely to take orders
from Hauck or Ward and to see that the men per-
formed their work properly. He, like others, had no
power to discipline, but merely reported any ineffi-
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciency to his assistant foreman. I find, on the basis
of the testimony of Caliendo, Ackles, Hauck, and
Ward that Bacchus was not a supervisor and there-
fore, as a leadman, he could not speak on behalf of
the Respondent except during the course of his
usual duties. Powell was terminated because of a
reduction in force.
Angelo Puterio was employed from June 1962 to
May 1963 and signed a union card dated February
14, 1964. He related that in or about April or May
1964 he had a conversation with Hauck, when he
told Hauck that things would not be like they were
if everything was above board and everybody un-
derstood what they were doing and why they were
doing it, and there would be more team work-that
the Union would be good for the place. He said
Hauck just walked away. He testified to a discus-
sion he had with Bacchus in which he told Bacchus
that the Company needed a union to which, he
said, Bacchus replied that the Union did no good
for anyone and perhaps a man who needed a union
was lazy. Other than this, there is no proof in the
record that the Respondent had knowledge of Pu-
terio's union activities or that his discharge was
motivated by animus against the Union. I have
found that Bacchus was not and is not a supervisor.
I find that even if Puterio made his voluntary com-
ments to Hauck, there is nothing that Hauck said or
did to impute animus against the Union to the
Respondent. Like Powell, I find that Puterio was
discharged by reason of reduction in force.
It should be noted that the General Counsel
emphasizes that Puterio and Powell were not ter-
minated according to length of service with the
Company or in the department. The layoffs or ter-
minations occurred at a time of the general reduc-
tion in force, as noted above. After the mechanical
inspection layoff, including Powell and Puterio, the
Respondent did not hire anyone to replace any of
the employees laid off , and since June 29 there
have been more employees in that department laid
off, others have resigned without any co-n-
sequent increase in overtime . Bacchus denied the
conversation attributed to him by Puterio; Hauck
denied that Puterio ever told him that he thought
Gyrodyne needed the Union. Affirmatively, Hauck
testified that he never questioned any employee
about his union activities or his interest in the
Union, whether he had signed a union card or
whether he had attended union meetings.
Lucien Marsan, employed on October 24, 1963,
as a mechanical inspector , signed a union card
dated February 26, 1964. He testified that he spoke
to all the employees on his shift about the Union in
an effort to obtain signed authorization cards, that
he received union handouts which he generally put
on the top of his toolbox, as did other employees,
including Wolf and Kargauer. He said he attended
four to six union meetings beginning in February or
March until April, May, and mid-June. He worked
under assistant foreman Frank Loganza. He
testified concerning conversations with Mancini,
Manico, and Loganza about the Union. He said the
first conversation with Manico was in December
1963 when they discussed the pros and cons of the
Union, that Manico's remarks were not derogatory
but rather he tried to point out the effect that a
union can have; that in another conversation with
Manico around Eastertime 1964, Manico did not
seem to feel strongly against the Union; that in June
1964 Manico mentioned to him that Kargauer's
name had been mentioned in certain places and
that he should be careful and watch his step. He
testified that in June 1964, about a week before he
was laid off on June 29, Manico asked him if he
had any of the union pamphlets that had been dis-
tributed at the door that day. Marsan told him that
he had, asked how many he wanted and Manico
asked for three or four and also whether Manico
knew of anyone else who had pamphlets, to which
Marsan replied that Wolf had one. Manico told
Marsan that he wanted it for Ackles and when
asked by Marsan why Ackles wanted them, he told
him he could pick them up all over the place;
Manico said that Ackles wanted a few copies for
President Papadakos. In this respect, Manic.
testified that he did ask Marsan for a copy of the
union pamphlet for his own personal use, did not
ask for more than one copy, did not ask for a copy
for Ackles. Manico denied that he ever asked Mar-
san to relay a warning to Kargauer or that he had
said that Kargauer's name had been mentioned in
unlikely places and he should watch his step. No
claim was made by Marsan that Manico made any
antiunion or threatening remarks. Marsan said that
the Union was a topic of general conversation
because throwaways or pamphlets continually were
being distributed which led to pro and con discus-
sions between the men, the only kind of discussion
he had with any supervisor during the time he was
urging the men to join the Union.
According to Marsan he himself told Mancini
and Loganza that he was a union supporter.
Manico , a leadman , has not been proved to be a su-
pervisor . Even so , I fail to comprehend how I can
draw an inference of animus against the Union
through the simple fact that supervisors knew of the
Union organizing activity in the plant. There was
nothing secret about the distribution of the hand-
bills, pamphlets , or throwaways and certainly in
June everyone connected with the plant knew of
the Union 's efforts to organize the production and
maintenance employees . Certainly the supervisors
were not living in a vacuum. I can see no reason to
impute motivation from the mere fact that Mancini
and Loganza knew that Marsan was active in sup-
port of the Union, in the absence of any overt act
of antiunion activity on their part. As pointed out
by the General Counsel, when Marsan was ter-
minated he was told there was a reduction in work
force because there was a reduction in work.
General Counsel contends that although the
GYRODYNE COMPANY OF AMERICA, INC. 255
machine shop had raw work stacked all over the
area, although new machinery was not yet installed,
and notwithstanding the fact that the Respondent
had just hired over a dozen machine shop rdduc-
tion employees, Marsan was laid off. An inference,
of course, could be drawn that Marsan could have
been retained in employment , but this inference is
offset by the fact that at the very time of his
discharge, the Company was engaged in its reor-
ganization and reduction of cost program.
I find that Marsan was laid off for the reasons
given to him, and that he was not discharged
because of his interest in or activities on behalf of
the Union.
Carl Schmidt, employed in November 1962 as a
blade inspector, signed a union card dated May 27,
1964 , and attended one union meeting on June 8
after work. He testified that on June 29 Morel
called him, with two other men, told them to go to
the personnel department, where they were in-
formed that work was slowing down and the Com-
pany did not have enough to do, had to cut back,
and that the group was being laid off on the basis of
seniority. He said he told the personnel department
that it was a "damn lie" because there were a cou-
ple of other men right in the shop hired after him
who were still there. He said further that he over-
heard Dennis talking about the Union and that
Dennis would "sound off and say that he didn't
want that sort of thing in the shop," and that
Dennis' remarks usually would be the strongest
when the union representative at the gate was giv-
ing out pamphlets and the men would bring them
into the plant. He said he heard Dennis talk about
the Union approximately a week before he was laid
off. Then, at a time when he was under cross-ex-
amination , Schmidt testified that Dennis in a sort of
a joking way said that if somebody wanted to
become a union member there would be no place
for them in the shop; that he did not hear Dennis
warn any , employee against joining the Union; and
that he was not near enough to actually overhear
Dennis tell any employee that he had better refrain
from joining the Union . Being a rather busy man,
he said, during his work he didn't pay too much at-
tention but somehow got the gist of what Dennis
was saying, and he thought that Dennis meant that
it would be better for the employees if they did not
bother with the Union. Schmidt testified concern-
ing a conversation which he started with one Dicks,
a leadman, several days after a union meeting, that
Dicks had asked him what he had against the Com-
pany to which he replied "the way things are going
I would have to take care of myself or get someone
who' would," and that he complained to Dicks
about the things he had against the, Company.
Dicks, the leadman, was not a supervisor but worked
under Loganza . Schmidt was unaware of any com-
pany supervisor or anyone from the personnel de-
partment who knew that he had joined or was in-
terested in the Union.
I find that Schmidt was laid off as a part of the
reduction in force and not by reason of his union
activities.
Edward Hurley, employed as a mechanical in-
spector on October 28, 1963, signed a union card
dated March 3, 1964 , and attended three meetings
in April, May, and June. According to him, he did
not discuss the union card with any person, never
told any supervisor or foreman that he had signed
the union card , and no supervisor or foreman ever
talked to him about the Union. He testified that he
discussed the Union with Vincent Reed, his lead-
man. Hurley testified that Reed assigned his work
to him and filled out normal inspection reports; on
that basis Reed is said to be a supervisor, which is
denied by the Respondent. About 2 weeks before
his layoff Hurley asked Reed if he would be in-
terested in seeing the Union in the Company and
that Reed replied that he had better not talk Union
because if he was overheard by Loganza it might be
serious . It was shown that Reed does not hire , inter-
view , layoff, recommend raises, or change assign-
ments and that his major responsibility is to give
out work as a leadman . Reed performed mechani-
cal inspection work.
John Wolf, hired as a drill press operator in Sep-
tember 1963, signed a union card dated February
6, 1964. As a prototype drill press operator he was
as good as and probably one of the better drill press
operators in the machine shop . There is no question
but that he was a good milling machine operator
and did other machine shop jobs in a satisfactory
way during the course of his employment.
His leadman was James Manico who from March
16 to July 2, 1964, was on the night shift, as was
Wolf. Manico was under the direct supervision of
Supervisor Mancini. Wolf testified concerning a
conversation he said he had had with Manico after
February or March 1964. He said at one time
Manico asked him for the current union handout
which was lying on top of Wolf's toolbox; that one
night they were talking about the Union when, "to
the best of my knowledge " Mancini told him that
he had also sent a card to the Union ; that a week or
two later Manico told him that a union in this place
"would ruin the old man"; that at another time
Manico told him that Mancini felt that he might be
a union organizer.
According to the testimony of Wolf, Manico was
in full charge of the night shift in the machine shop
and exercised the duties and responsibilities of a su-
pervisor , such as recommending him for a raise and
so on . The Respondent denies that Manico was a
supervisor or in the alternative , if he was a super-
visor, he did not engage in any unfair labor prac-
tice.
Wolf was laid off due to a reduction in the work-
load in the machine shop. The General Counsel
made much of the fact that three reasons were re-
ported as a basis for the termination of Wolf's em-
ployment : ( 1) that he was a prototype man and not
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a production man; (2 ) he was not satisfied in a par-
ticular job but expressed a wish from time to time
to be transferred to other jobs ; ( 3) that he was let
go because he was not a "combination man" as was
employee Orlando . It seems clear enough that just
before a pay review evaluation Mancini reported
that Wolf was equal to or better than any drill press
operator he ever had . However , when Wolf
requested another raise, he was advised that it was
refused because he did not produce enough work.
This was after he was taken from prototype and put
on production work.
During the course of the cost production pro-
gram undertaken by the Company after March
1964, it found upon survey that the manpower
hours in the machine shop exceeded the workload
under the new contract and it then undertook to
return the shop to balance by, for the first time,
manufacturing some of the needed parts which for-
merly had been supplied by the vendors to the
Company . It became necessary , in the view of the
Company, to reduce the personnel in the machine
shop in order to meet the required lesser output of
man-hours . At the same time, management was in-
terested in training employees for the anticipated
new work to be done by the plant when in full
production And, as a matter of course, required the
use of production workers rather than those em-
ployees whose work had been confined to the
prototype helicopter. As explained to me, a proto-
type man is , a better all-round mechanic, capable of
problem' sdlving, and a more careful and slower
worker than a production man who needs only to
be told how the job is to be run , after the tools are
set. During the course of this program , Mancini
screened and evaluated the men in his department,
weighing the ability of each in an effort to construct
the best team for production work. Basing his
recommendation on the fact that his department
would need men more familiar with production
than the more skilled men, he recommended that
Wolf and; Kargauer , a milling machine operator, be
terminated . Ackles made the final decision to ter-
minate these two men together with eight or nine
probationary period men in the machine shop. At
the same time , three other men were transferred
from the machine shop to the blade shop because
the work left in the machine shop was not enough
to carry] the complement of employees there. These
three nen had other qualifications needed by em-
ployees, in the blade shop.
Walter Kargauer, employed in June 1963 as a
milling !n achine operator on the day shift , signed a
union card dated March 10, 1964, and attended
about five union meetings , the last one about 2
weeks before his employment was terminated. Dur-
ing this time , he testified, he received union litera-
ture which he kept on his toolbox, as did other em-
ployees including Wolf and Marsan . He said that
occasionally Mancini would pick up the literature
off his bench, read it, and put it back ; he also said
that Mancini never asked him for union pamphlets
or other material and that he did not know whether
Mancini read it-that he put it down where he had
picked it up and walked away. He testified further
that 2 or 3 months after the end of the year 1963,
Mancini approached him while he was at work,
asked him how the job was going, and later in-
formed him that at one time previously he had been
an officer in the Union and he thought unions were
corrupt and gangster ridden. Kargauer did not re-
member whether Mancini mentioned the UAW.
They discussed the merits of industrial versus guild
types of unions, Mancini expressing the opinion
that a guild type probably represented the men
better than an industrial type of union and
described his own personal experience.
Mancini, in evaluating Kargauer's work, said he
had a tendency to be very careful, that he was a
good mechanic and never spoiled work, but he had
to rework several jobs because he was above the
tolerances, one of which was a gimbel ring job and
one the pocket of a pitch horn, and so reported to
Ackles. Ackles agreed, taking into consideration
the fact that some of Kargauer's work had to be re-
worked. This to Ackles meant that Kargauer was
too strict and too delicate in his performance of the
machine work because he worked the part too high
a tolerance it also meant that the components
would have to be reworked, thus increasing the
man-hours used on that particular job. Mancini said
that in considering his recommendations to Ackles,
that although Wolf was a good mechanic and a
good worker, he decided nevertheless as a factor of
recommendation that it was better to have an em-
ployee like Anthony Orlando who was satisfied with
his job than to have an employee who was not
satisfied, though who could be considered to be a
better worker.
Mancini denied that he had been told by Wolf
that he had sent in a union card, that he had ever
discussed the question of unions with Wolf.
Although he did ask Wolf for a union pamphlet for
his own personal use, he said he did not ask for co-
pies for Ackles or Papadakos, since such copies
were easily obtained at the gate or throughout the
plant. He denied having warned Kargauer against
union activity.
Emphasis is placed on the fact that Manico, as
leadman in the machine shop on the night shift, was
in charge of the shop at night. The contention that
this fact in itself would show that he was a super-
visor is denied by the Respondent. Manico, like the
other leadmen with whom we are here concerned,
used the same washroom and locker facilities as
other employees, the same locker space, wore the
same type of clothing to work, and engaged in
production work. The fact that he was alone in the
sense that Mancini was not there at night, does not
carry much weight, since it is clearly apparent that
he performed the usual duties of a leadman under
directions left to him by Mancini. I think the proof
GYRODYNE COMPANY OF AMERICA, INC.
herein falls far short of showing that Manico regu-
larly and customarily performed any of the func-
tions which would denote him to be a supervisor. In
Cook Chocolate Company, 137 NLRB 1517,
1519-21, the duties of one Willis were comparably
much more important and diversified than the du-
ties of Manico in the instant case; for example,
there Willis had the authority to stop and start
production of various items which was a function
delegated to him by his superiors. The Board
sustained its Trial Examiner's findin that Willis
was not a supervisor. In Dove Manufacturing Co.,
128 NLRB 778, 779, the head clerk and shipping
clerk issued instructions to three or four other em-
ployees which the Hearing Officer found to be
"routine in nature," and the Board sustained his
findings on objections. In Fulton Bag & Cotton
Mills, 89 NLRB 943, 947, Brooks, the shipping
clerk there involved, had less to do than Manico;
and the Board sustained the Hearing Officer's re-
port that Brooks was not a supervisor. Cf. also
Greystone Knitwear Corp., 136 NLRB 573,
584-586, where the duties of one Goodman, an
employee in the shipping department, were
discussed, as were the duties of employees Gismon-
di and Pekow, where the Board sustained the
findings of its Trial Examiner that the independent
decisions made by these men were not such as to
make them supervisors, since they were not of the
kind "not of a merely routine or clerical nature"
requiring the use of independent judgment. See also
The Bama Company, 145 NLRB 1141; Phalo
Plastics Corporation, 127 NLRB 1511; American Art
Clay Company, 148 NLRB 1209; Elliott- Williams
Co., Inc., 143 NLRB 811; Bausch & Lomb, Incor-
porated, 140 NLRB 1400; Sinko Manufacturing and
Tool Company, '149 NLRB 201; Interstate Smelting
and Refining Co., 148 NLRB 219; and Lyon, Incor-
porated, 145 NLRB 54.9
I find that Wolf and Kargauer were discharged by
reason of the' reorganization of the plant and reduc-
tion of force. I shall therefore recommend that the
complaint be dismissed as to them.
Augustus Bentivegna, employed in the blade
shop in about September 1963, signed a union card
dated May 15; 1965. He testified to a conversation
he 'said he had with Elton Balch in which Balch
asked whether he had joined the Union, to which
he replied that he had not. Balch was a leadman in
the routing room under the supervision of Dennis.
The contention that he is or was a supervisor is de-
nied by the Respondent.
William Fluellen, employed on October 28,
1963, in the blade department, where he worked in
the contouring section, signed a union card dated
March 13, 1964, land attended one union meeting
June 3 after noticing cards being handed out at the
'Should the Board disagree with me in regard to the nonsupervisory
status of Manico, nevertheless , I would find on the preponderance of proof
that the alleged threats or interrogation attributed to him occurred at night,
and c6ristitutdd "nothing more or less than parts of general conversation
257
gate. He testified to overhearing a conversation
between Dennis and one Herb, otherwise
unidentified, in which Dennis is supposed to have
said "I hope you're not one of them, Herb." He
said that Herb worked in the blade department and
was a friend of Dennis and that they were a part of
a group who customarily gathered either on
Thursday or Friday night at an inn in Smithtown.
He testified further that on one day when the Union
was handing out cards, he told his leadman, Don
Karmel, that the Union was knocking at the door,
to which Karmel replied it was a good idea because
last time he got a raise and then asked whether
Fluellen was a union member. He said that he did
not indicate any interest in the Union to Karmel.
Balch denied that he had asked Bentivegna whether
he had signed a union card or whether he had gone
to union meetings or whether he had signed up for
the Union.
The duties of Balch and Karmel as leadmen were
about the same as those of the other leadmen above
discussed, including Manico, who I will find were
not and are not supervisors.
Prior to the termination of these two men, Ackles
and Dennis had discussed the manpower situation
as it affected the blade shop and thereafter decided
to reduce the manpower in the blade shop. Dennis
recommended to Ackles the layoffs of Bentivegna
and Fluellen. Dennis said that at the time he had no
knowledge that any employee in the blade shop was
interested in the Union, and did not question any
employee concerning his union activities, member-
ship, or attendance at union meetings. Dennis con-
sidered Fluellen to be a below average worker.
General Counsel here, as in the machine shop,
places great emphasis on the fact that the em-
ployees who testified said that there was a large
backlog of work in open view in both the machine
shop and the blade shop. This is not too important,
because, as satisfactorily explained, the shifting of
duties and the reduction of manpower in the vari-
ous places within the plant, the installation of new
machinery, the storage of goods or the appearance
of materials on the floors of these several sections
or departments of the plant was temporary and,
particularly in the case of the machine shop, excess
materials were utilized by undertaking manufacture
previously done by vendors to clear up the backlog
of supply.
Frank Vello, employed on August 20, 1963, as
an avionics inspector, signed a union card dated
June 10, 1964, attended union meetings before and
after he signed his card, and according to his
testimony, the morning after he attended the first
union meeting but before he signed the card, lead-
men Beltran and Samuels told him that he had
better see Sullivan, the foreman of avionics inspec-
with other employees on that shift. I am convinced, after hearing Manico,
Wolf, and Kargauer testify that these discussions were general and usually
were initiated by either Wolf or Kargauer.
350-999 0 - 71 - 18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, who thought that he was a union organizer
and was going to have him fired.
August Piete, hired in August 1963 as an avionics
inspector, signed a union authorization card dated
May 19, 1964.
Robert Martinez, employed as an avionics in-
spector in September 1963, signed a union card 8
days after he was hired and thereafter attended
three union meetings , the last of which was on June
3. Michael J. Petralia, employed in October 1963
as an avionics inspector, who signed a union card
dated January 30, 1964, did not attend any union
meetings . Wallace Wall, employed as an avionics
inspector in September 1963, signed a union card
dated May 26, 1964.
Frank Lupardo, employed in October 1963, as an
avionics inspector, signed a union card dated
February 26, 1964.10
According to Vella he asked Sullivan what it was
that he had heard about him, Vella, "getting
canned because you think I'm a union organizer?"
and that Sullivan denied to him that he had ever
made such a remark. Vella said that he had had
many conversations about the Union with the work-
men on the night shift, that it was discussed during
coffeebreaks and at lunch hours, and that some of
the conversations about the union activities might
have been of a humorous nature but that there
might have been serious statements too. He said
that he had shown his union book to leadman Don
Cook and asked him to sign a union card. Preito
testified that a few months before he signed his
union card, leadman Cook told him to get rid of a
. union card lying on the shelf near his bench, and
that, before he signed the card, leadman Beltran
told him that a union sometimes hurt the Company
and the employees involved. He said that when
Cook asked him whether he had attended any
union meetings, he told Cook that he could not
because he had a part-time job. Martinez testified
that in February 1964, at a time when he was talk-
ing to some of the employees about the Union,
Beltran and Cook told him to get back to work. He
testified concerning certain conversations which he
had had with leadmen Beltran and Cook and when
he had solicited Cook for union membership. He
claimed to be on friendly terms with all of the su-
pervisors. Petrailia testified that sometime between
March and May 1964, leadman Cook asked him
whether he had signed a card, to which he replied
that he had; and Cook also asked him if he had
handed out cards or if he knew of anyone who had
signed a card, to which he replied that he did not
know. He said that he attended three or four or
possibly five union meetings and each time after the
meeting, Cook asked him whether he had attended
'° George Fallo and Robert Bernardine, employed in the avionics inspec-
tion and instrument calibration department, were terminated on June 29,
1964, pursuant to the reduction in force undertaken by the Respondent.
They did not appear at the hearing and no testimony was offered in support
of the allegations of the complaint to the effect that they were discharged in
the meeting and each time he told Cook that he
had not. His testimony concerning dates, times, and
places of these conversations was extremely vague.
He did not know whether or not Cook's remarks
were made by way of jest. Wall, testified to conver-
sations he had with Cook and Beltran during March
and April 1964, when Cook at one time asked him
whether he had signed a union card. He said that
Cook and Beltran asked him on numerous, occa-
sions whether he had signed a card, the last time
being just after he signed the card and showed it to
them as proof. He said that Cook and Beltran told
him that they had had unpleasant experiences with
the Union and that they did not want a union in the
plant. Lupardo testified that Cook asked him
whether he had signed a union card, and, that
Beltran also approached him and asked him
whether he thought the Company needed a Union,
and that then each would take a side and argue the
question as to the merits of the Union being in the
plant. The testimony of each of these men was
either refuted or explained by the leadmen or su-
pervisor involved.
Despite repeated assertions that he would con-
nect testimony to prove status of many of these
leadmen, the General Counsel finally rested his
case without having proved the supervisory status
of the men about to be mentioned.' In the absence
of direct and positive proof to the contrary on the
side of the General Counsel and the Union, I shall
find that all of the leadmen were, by virtue of their
work, and their assignments of work and their du-
ties, production or maintenance employees and not
supervisors within the meaning of the Act. Each of
them were leadmen engaged in routine activities,
and the most discretion they exercise, it seems to
me, is the assignment of work under the direction
of their immediate foreman or supervisor. For ex-
ample, Cook and Beltran were solely engaged in
routine activities not requiring independent
judgment, such as the assigning of work which had
been delegated to each member of the department
they were in by its foreman, James Sullivan. Each
of them spent 90 to 95 percent of their time in-
specting, do not have the right to hire, transfer,
suspend, layoff, discharge, recall, promote,
discipline, adjust grievances, or interview for hire.
They assist other inspectors, wear the same type of
clothes, and use the same lockers and washup
facilities as the other inspectors. They are paid on
an hourly rate. Sullivan, the foreman, is the one
who assigns the work, recommends employees for
raises , arranges for overtime, and performs other
duties customarily and usually performed by an ac-
tive foreman in a factory or other similar establish-
ment. Beltran and Cook each testified, and their
violation of Section 8(a)(3) of the Act The request of the Respondent,
contained in the brief filed on its behalf, that the complaint be dismissed as
to both of these dischargees, is disposed of by the Recommended Order
herein
" See A, 4, above-
GYRODYNE COMPANY OF AMERICA, INC. 259
description of their duties, if accepted , takes them
without the definition of a supervisor.
And so with Manico , whose duties I have
discussed above . Manico, on the basis of the
testimony of himself and his supervisor , did not
possess any of the powers nor was charged with any
of the duties incident to that of a supervisor . Ackles
testified that Manico was a leadman in the machine
shop charged with the primary duty of distributing
work among other employees.
Similarly, there is no substantial evidence in the
record indicating that Balch had any of the powers
or exercised any of the discretion inherent in the
position of the supervisor . He himself, whom I be-
lieve to be a credible witness , testified that as a
leadman he performed no supervisory duties and at
all times performed only duties of a routine nature
not requiring the exercise of independent judgment
and according to the instructions of his immediate
superior.
In regard to the status of Robert Southworth, a
leadman in the blade department , the only
testimony going to show that he was a supervisor
was that of Robert Reichle , a 2-week employee,
who testified that Southworth first assigned him to
his Work, that he reported to Southworth if he
wanted to leave the work area , and that after his
first instruction in his work he did it routinely day
after day without immediate supervision . Damato,
whose testimony is supposed to support the theory
that Southworth was a supervisor , testified that
Southworth gave him his orders for the day, kept
records concerning the number of blades produced,
had asked Damato why his work was sporadic, that
Southworth took it upon himself to know which
blades were needed , that Southworth had no per-
sonal ' authority to designate those blades to be
worked on during the day.
The leadmen of Gyrodyne generally speaking
were experienced and qualified for their job and it
is not ,contested that the control they exercise over
other employees is a type of direction which ex-
perienced employees customarily exercise over less
experienced employees and is routine in nature. It
has been shown through the testimony of Ackles,
Caliendo, Dennis, Hollwedel , and Papadakos that
when any of the Company's leadmen made recom-
mendations , they were infrequent and that their
recommendations were at all times subject to
review and approval or disapproval of their
foreman, and that these instances of recommenda-
tionswere so infrequent as to be unusual . The pre-
ponderance of the evidence herein shows that lead-
men did not have and do not have authority to
make recommendations as to pay increases and
layoffs, and that, any such recommendation as may
have been made ' by any leadman was nothing more
than an expression of opinion.
C. The Alleged Interference, Intimidation , Promises
of Benefit, Interrogation
1. The speeches of Papadakos
The General Counsel contends that when, on
June 11 , 1964, the Respondent 's president , Peter J.
Papadakos , spoke to all of the Respondent's 800
employees and on the following day to only 273
production and maintenance employees, he in-
dicated a signal to open an antiunion campaign,
and this , together with the other alleged acts of in-
terference , show that the timing of the alleged un-
fair labor practices accounted for the employee
apathy or disinterest in the Union, and that such
"timing" proves a planned campaign for the de-
struction of the Union' s organizing activities within
the Respondent' s plant.
Counsel for the General Counsel says that it has
been proven that on Thursday, June 11, 1964,
Papadakos spoke to what counsel describes as a
captive audience of all the Respondent 's 800 em-
ployees, and on June 12 "solely" to its 275 produc-
tion and maintenance employees , in which
speeches Papadakos
protested against a wall, erected by outsiders,
separating employees from management, of-
fered and granted hospitalization coverage to
the employees without charge to them, and
stated that he had given a bonus to the lead-
men and that there "might be bonuses in the
future given out to the rest of the personnel,
production workers."
Then, he points out, after the Union had circulated
the leaflets announcing an open meeting on the fol-
lowing Wednesday, June 17, the Respondent on
Friday, June 19, discharged and permanently laid
off 12 employees of whom 11 were union members.
In his contention , counsel elaborates on the
testimony of employee witnesses called by him who
testified concerning what they had heard at either
one or both of the meetings.
At least 11 employees testified concerning their
appearances at, and what was said at, either one of
the two meetings , several of these employees hav-
ing attended both meetings . Varying estimates
running from I hour to as much as 4 hours were
given as to length of the first meeting ; employee
testimony in regard to the length of the second
meeting was that it was considerably shorter than
the first meeting. I have concluded from all of the
testimony , including that of employer witnesses
who were present, that the meeting of June I1
began about 2:30 in the afternoon and lasted ap-
proximately an hour and a half, until almost 4
o'clock. The second meeting began 2:30 p.m. on
June 12. None of the employee witnesses heard the
word union mentioned during the course of either
260 DECISIONS OF NATIONAL
of Papadakos ' speeches . Employee Fluellen said he
could not give any particular instance where
Papadakos spoke against the Union but concluded
that Papadakos was against it; Lupardo testified
that Papadakos said something about a wall that
would rise between him and people in the shop if
any problem came up and he - thought that
Papadakos meant that if -the Union came into the
shop he could get very tough with them . Vella said
that Papadakos said that he (Papadakos) saw no
reason why the Company and the employees could
not get along together as long as a wall did not
come between them and he thought the word "wall"
was symbolic of the Union . Vella said that he
had never heard the word union but he thought
Papadakos was talking about the Union "just like
you could read in-between the lines." Wall said he
attended both meetings and that Papadakos had
said that he did not really want a wall erected by
outsiders to separate employees from management.
Martinez testified that he did not hear Papadakos
say that he - disliked a wall being built between him
and his employees , and that he was surprised that
Papadakos did not use the word "Union," because
he was listening for a reference to a union but
heard nothing . Puterio said that Papadakos said he
did not want a wall between him and his employees;
he interpreted this to mean that it was an inference
to him concerning the Union coming into the plant.
Preite said that Papadakos rambled from subject to
subject but he did not hear the word " Union" men-
tioned at any time although he was present at the
time of each speech . The testimony of these em-
ployees is the strongest proof presented to support
the assertion that by the use of the word "wall,"
Papadakos then expressed animus and hostility
against the Union , during the course of either one
of his two speeches.
Employees Vella, Petito, and Zafrano remem-
bered that Papadakos had said that the Company
was going to pay an additional $ 1 for hospitaliza-
tion or medical benefits . Employees Petito and
Hurley each testified that Papadakos had men-
tioned, during his description of the growth of the
business , that the Company then presently had a
backlog of orders which would guarantee work for
all employees for at least 18 months. Employees
Martinez , Puterio , and Zafrano each recalled that
during the course of his speeches Papadakos had
referred to his early life and his struggles , the lean
years and the healthy years of the Company and his
predictions of what might take place in the future.
Employees Fluellen , Lupardo , Vella, Martinez,
Preite , and two or three others, all recall that
Papadakos dwelled at great length on the growth of
the Company and its financial position, and his ex-
pressions of a desire to have the Company continue
to grow with the cooperation of its employees.
It had been the custom of Papadakos in the past
to call employees together at least once a year to
deliver an annual address . His speech on June 11,
LABOR RELATIONS BOARD
1964, followed one given by him sometime in the
early part of 1963. It appears that some 14 months
had elapsed since his 1963 speech before the first
one in June 1964, because, although he tried to
deliver his annual speech as early in the year as he
could, in 1964 he had a floor space problem. I do
not attach the importance to the 14 months' lapse
between speeches as apparently does General
Counsel in his emphasis upon the "timing" of his
speech in respect of the later discharges which oc-
curred on June 19.
Near the conclusion of his speech of June 11,
Papadakos was informed by John Hollwedel,
director of quality and reliability control, that there
was some misunderstanding as to whether
Papadakos had completed what he intended to con-
vey to the employees and suggested to Papadakos
that he continue the meeting . It was for that reason
that on the following day Papadakos again ad-
dressed the employees , working as production de-
partment engineer type personnel , and quality con-
trol engineers. It should be noted that Peter
Ackles, general foreman , also suggested to him on
the afternoon of June 11 that he again address the
employees the following day.
Hollwedel testified that he was present at both of
the speeches and did not recall Papadakos having
said anything about a wall. Ackles also testified that
he was present at both speeches, heard Papadakos
speak about how the Company had gotten its start,
how he had worked his way up from the bottom,
and how he had attained his present position. He
said he did not hear Papadakos make any reference
to a wall.
Papadakos , a talkative person , was examined and
cross-examined at length . His testimony concerning
the context of his speech does not vary from the es-
sential facts as related by any employee or Holl-
wedel and Ackles. He said that he told the em-
ployees what Gyrodyne had accomplished,
described what was then in the "crystal ball," re-
minded the employees that the Respondent had but
one customer and but one product, and explained
to the employees the problem of technological
growth, and discussed the backlog of work and the
medical benefits to the employees . He told them
that the Respondent thereafter would bear a weekly
$1 insurance payment , in, accordance with com-
pany policy of continually granting more and more
fringe benefits as it was able to do so. He explained
that the Company had started with Blue Cross in
1951, added increased and major medical benefits,
and finally had been able to pay the full cost for all
these fringe benefits as an allowable cost to
Gyrodyne by the Navy. He went on to describe the
development and growth of the Respondent, its
periodic payment of bonuses to some 47 or more
older employees who had worked numerous,hours
over the years devoted to the growth of the Com-
pany, and then related that the Respondent had
given an incentive bonus to a group of 211 em-
GYRODYNE COMPANY OF AMERICA, INC.
ployees, including some leadmen, and predicted
that in the forthcoming year, 1965, the Respondent
would be able to give bonuses to all the employees.
During the course of his second speech on Janua-
ry 12, Papadakos tried to express his desire to show
the employees how a person might progress, telling
them that in an expanding company there are no
obstacles or walls, meaning that a- person can ad-
vance or be promoted without someone ahead of
him dying, which is an obstacle, but rather because
the Company is expanding and will continue to
grow. Papadakos, from the witness stand, explained
that he realized that his reference to a wall was a
poor selection of words; that what he really meant
was an obstacle, and that he had tried to show that
a Company that reduces its force creates more and
more obstacles, whereas a Company grows larger
with persons with ideas and by persons who try to
sell ideas, and thus the Company will grow. To il-
lustrate the point he reviewed his life story, trying
to explain what his early experiences had taught
him. Briefly, he rose from a poor Greek immigrant
boy to the position he now holds.
On cross-examination, Papadakos, in answer to a
request to explain what he had said with regard to a
"wall" in the second speech, answered:
A. Yes, sir. I said, sir, in the industry the
people feel the only reason they don't get
promoted because there is somebody ahead of
them that if he dies, he has a chance if
something happens or he quits. And that's con-
sidered an obstacle, you know. Well, when you
get to the top, for somebody, to get to be pre-
sident well, I have got to be out. I have to die
or resign or something. As you get down to the
lower levels, in order to become a foreman, it
doesn't mean a foreman has to die off, move or
leave or something. It is the expansion of the
business that creates positions of that type.
And I said that, therefore, there are no obsta-
cles for than to get ahead if a Company was ex-
panding, is getting bigger. We have to promote
people and people getting up. On the other
hand, if a Company is shrinking, it loses busi-
ness and getting smaller and smaller, top peo-
ple drop down and they create real obstacles
for the others to move. That's what I tried to
convey.
There is nothing to be found in either of the
speeches of Papadakos which can be construed as
an expression containing a threat of reprisal or
force or promise of benefit. To attempt to construe
a "promise of benefit" out of his references to or-
ders on hand and future work requirements strikes
me as being rather weak.
These speeches, in themselves, are privileged
under the provisions of Section 8(c) of the Act.
Upon hearing Papadakos' testimony, and observing
his demeanor, I conclude that in his own way he re-
peated to his best recollection what he had said in
his annual, speech to the employees of the Com-
pany.
261
2. Alleged discrimination in the manner in which
layoffs were made
As described above, layoffs occurred through the
elimination of the need for mechanical inspectors
in the packaging department and for certain em-
ployees in the motor pool, because of change of
method in the blade shop, and the contracting out
of the maintenance of building and grounds. As to
the maintenance department, no direct question of
discrimination or layoff occurs there since there is
no claim of discriminatory discharge. The situation
is somewhat different in connection with the
packaging, where Abilities, Inc., an outside con-
tractor, undertook to do packaging at its own plant
located at Albertson, Long Island, a comparatively
few miles from the St. James plant of the Respon-
dent. The elimination of the packaging department
at Gyrodyne was accomplished between March and
May 1964.
Abilities, Inc., employs handicapped persons to
perform the work contracted out to it by Gyrodyne.
The work done by Abilities, Inc., has been satisfac-
tory to and has met the specifications of the Navy
and the Respondent. As noted, savings in produc-
tion costs have been accomplished through the use
of this contractor to the benefit of both the Com-
pany and the Navy. In the circumstances of the in-
stant case, the action of the Respondent in entering
into the contract with Abilities, Inc., cannot be held
to be a violation of the Act in any respect even
though it resulted in the layoff of some of Respon-
dent's employees. Fibreboard Paper Products Cor-
poration v. N.L.R.B., 379 U.S. 203; Textile Workers
v. Darlington Manufacturing Co., 380 U.S. 263;
Adams Dairy, Inc., 137 NLRB 815.
On May 1, 1962, the Respondent published an
Employee Manual of Personnel Policies, a revision
of certain summaries of personnel policies previ-
ously issued under dates of April 6, 1959, and Oc-
tober 5, 1961. This manual sets forth company
practices and policies in respect to the working
conditions and so on of its employees and con-
cludes with a boldfaced printed page [G.C. Exh. 3,
p. 28 ] as follows:
Please bear in mind that changes in policies,
procedures, methods and organization may
occur which will have an effect on the prac-
tices outlined in this Manual . Whenever any
such changes occur, you will be advised by bul-
letin board announcements. Periodically this
Manual will be revised and updated to incor-
porate the latest information to guide you in
your daily actions.
Although there is considerable credible testimony
from both Respondent and union witnesses showing
that advance notice was given of contemplated
layoffs in the packaging, motor pool, and blade
shop departments, nevertheless General Counsel
seems to take the position that certain provisions of
the policy manual were not followed by the
Respondent in connection with the layoffs in the
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several departments and consequently there must
be a presumption of discrimination against those
members of the Union who were laid off on June
19 and 29. Counsel for the General Counsel asserts
that it is uncontested that the Respondent, in the
layoffs, did not follow the employees' manual,
especcially regarding its published rule concerning
a 3-day notice of layoff and its statement regarding
layoff for lack of work [G.C. Exh. 3, pp. 16, 22J.
The manual read as a whole and on its face shows
clearly that the policies expressed, including the
terms and conditions observed by the Company in
regard to the employment of any employee, was
unilateral and in no sense can be construed as im-
posing a contractual liability on the Company in
respect to the employment of any employee. Policy
and practice, as such, was stated by the Company
as a matter of information to its employees, and
was subject to change upon action by the Company
and notice to the employees. No alleged discrimina-
tory discharge considered here involves any viola-
tion of any rule of prohibition or management rule
which possibly could form the basis of a charge of a
violation of Section 8(a)(1) of the Act. Cf.
Southwire Company, 145 NLRB 1329, enfd. 352
F.2d 346 (C.A. 5), and the footnote case citations
in the Board's decision therein.
Lieutenant Commander Cletus W. Scheperle was
ordered on special assignment by the Bureau of
Naval Personnel as resident in charge at the
Gyrodyne Company plant at St. James on June 1,
1962, and served as such until he was detached
from that duty station on May 17, 1965. He was
called as a witness for the General Counsel to prove
certain statements made by Papadakos during the
time of the Union's organizational effort at the St.
James plant which would show that Papadakos was
antiunion and further show his motivation for the
alleged discriminatory discharges. Counsel for the
General Counsel argues in brief that the testimony
of Mr. Scheperle was that he (1) came to an oral
agreement or understanding with- Papadakos
wherein Papadakos would permit Scheperle to
leave Papadakos' presence when Papadakos spoke
of unions or union problems; (2) on several occa-
sions, upon reminding Papadakos of their oral
agreement, did leave Papadakos' presence; heard
Papadakos state, in substance, that the Union had
"planted" paid agents in the guise of employees;
and (4) heard Papadakos tell Naval officers that if
a union got into the plant of the Respondent,
Respondent's production and delivery schedules
would be interfered with. Counsel, contending that
the testimony of Mr. Scheperle destroyed the credi-
bility of Papadakos, nevertheless, in oral argument
said:
Mr. Scheperle came in here as a frightened
man, unable to testify, with nothing to gain in
this proceeding except to get his skirts from
getting dirty. And he told us in spasms what
the facts were. The interruptions were tremen-
dous. I don't like the way his testimony flowed
but I think there is enough in the record when,
compared with Mn Papadakos' "denials of
those facts, to reach clear-Mr. Papadakos'
denials and evasions-to reach clear credibility
decisions on the issue.
I do not agree with counsel' that this officer was a
frightened witness nor do I agree that his testimony
discredited the testimony of Papadakos or the mat-
ters about to be mentioned. Lieutenant Com-
-mander Scherperle emphasized his neutrality in this
matter. He testified concerning a conversation had
with President Papadakos and an agreement
reached with him at the time he assumed his duties
as resident in charge:
My predecessor's name was Lieutenant Com-
mander Boyle. As is customary in the Navy
when one command changes, the successor is
briefed by his predecessor. During the course
of that briefing Mr. Boyle was subjected to
some embarrassment as a result of an incident,
the details of which I am not familiar with, and
he briefed me on this incident and as a result
shortly after I assumed the duties as the RIC, I
advised Mr. Papadakos that I or-my staff did
not wish to become involved in any union-
management or labor discussions, and- that if
the subject came up and he had prior
knowledge of it, he was requested to so advise
me so that I could dismiss myself, and if the
subject came up extemporaneously or inadver-
tently, that I would dismiss myself and for him
not to be offended. And he acknowledged this.
I might also add that during the course of the 3
years I had the duty, that he honored this
request.
The witness described the Company's product, the
destroyer antisubmarine helicopter, as a remotely
controlled helicopter designed specifically for fleet
operations from destroyers. He said:
This was a new weapon system and in the
development of any weapon system where we
for the first time marry aircraft to destroyers,
there was a need for a lot of conferences and
we normally refer to these conferences as
DASH program review conferences, and they
were scheduled periodically.
He referred to a program review session held in
June 1964, at Gyrodyne, "which was quite a large
conference for a lot of Naval officers from
Washington, from the fleets and technical represen-
tatives from the Navy Department, from the con-
tract ...." He said these conferences normally
would consist of more than 100 people, divided up
into subsections, that he attended all such sessions
and in one of them the subject of unions "did come
up and it was discussed":
All I can recall was that at this particular ses-
sion we were discussing production schedules
and delivery schedules and, of course, at this
point in time production schedules were in-
GYRODYNE COMPANY OF AMERICA, INC. 263
creasing , delivery schedules were important,
and he [Papadakos ] discussed-he did men-
tion at one of these sessions that he was having
problems with the Union and if the Union
came in he may have trouble meeting some of
his production or delivery schedules....
Well, yes, this is generally the same thing I
said,- that Papadakos has a contract with the
Government to deliver certain materials and at
that time he was committed to delivery
schedules and that if the Unions became firmly
fixed, it would involve the cost. The cost might
go up. It might involve delivery schedules and
production schedules. This is normal conversa-
tion. These things are normally discussed at
this type of program review conference where
you discuss these things. Its the purpose of it.
On that basis I would say that as a Government
contractor he did not want any other variable
factors that might influence his delivery
problems, so I would say that probably he did
iterate some opposition to unions.
Scheperle also testified with respect to another
occasion in August 1964 when Naval officers,
Commander Mellon and Lieutenant Commander
Olmstead came to the plant to investigate a com-
plaint by local citizens about noise emanating from
the premises of Gyrodyne. The excess noise
problem, he said, was a subject of a letter written
by a citizen to the Secretary of the Navy and it
became necessary for the Navy to investigate and
respond so that it was in this connection that the
visit was made and a tour was made of the
Gyrodyne property; and that in the course of the
tour of the property not only that problem was
discussed but also other problems that might inter-
fere with acceptance and delivery schedules.
Scheperle testified:
Well,, frankly, there was some discussion about
unions being big business in that union mem-
bers collect dues. The unions themselves-the
union members pay dues and the unions col-
lect dues. And as a result they have a tremen-
dous buying power, and then they, of course,
exert certain influences on the Company.
Myself at this particular time, I again, as I had
on previous occasions, reiterated my position
to Mr. Papadakos to excuse myself. I know
nothing further about the discussion.
Mr. Scheperle continued to describe what oc-
curred on that day, as follows:
This whole day was devoted to a visit by Com-
mander Mellon and Lieutenant Commander
Olmstead and myself, Mr. Papadakos and Mr.
Knecht, and the purpose for their visit was to
investigate this letter. I think the complainant
was Mr. Halloran who lives adjacent to the
property, and he had written a letter to the
Secretary of the Navy complaining about ex-
cess rotor noise which eminated from the
tethering rig. To get a first hand report of this
in company with all these people , we actually
walked to the edge of Mr. Halloran 's property
and then we listened to the noise ourselves. We
discussed how to avoid the noise , what barriers
we could put up to make the noise more com-
patible, we discussed additional problems of
moving the tethering rig. As a matter of fact, at
that particular point in time it was planned to
move it to a different location which would be
farther from the-from its location and farther
from his house. As we strolled across the pro-
perty down this way we discussed many
problems that were similarly associated. When
could the move be made, what impact would it
have on check and test procedures , flight test
procedures . What impact would it have on
delivery schedules , if we could not satisfy this
complaint . Then further in the discussion as we
proceeded back towards the main office the
discussion digressed to, among other things,
the Union . ' Again Mr. Papadakos reiterated
this was not his only problem , that he had
other problems , and he was a very busy man,
and that the subject of unions was again
discussed in our presence . When we arrived
back at the building I advised Mr. Papadakos
of my policy and actually dismissed myself. He
acknowledged this. He was not offended at all.
But this discussion , as far as unions, if that is
what you are driving at , it was generally about
if the unions came in certainly it would inter-
fere with flexibility that he has. Moving people,
utilizing his people . Probably would also inter-
fere with his job classification somewhat
because he is a small growing company and he
does a very good job , I think, of utilizing his
people. But if the unions come in, obviously,
they will classify the people to certain job type
categories and this no doubt would interfere
with his management problems. And by the
time we got back to the building I dismissed
myself.
According to this witness, Papadakos also said "he
suspected some of these representatives of being
dually employed by both company and union." Mr.
Scheperle , after being pressed by counsel for the
General Counsel said that he could not say categor-
ically that he ever heard Papada kos say anything
where he actively opposed unions.
Over the approximately 3 years that Lieutenant
Commander Scheperle was assigned to duty at the
St. James plant , these instances above related were
the only times that he heard Papadakos express any
opinion regarding what effect the Union might have
13I permitted a pretrial statement given by Lieutenant Commander
Scheperle to counsel for the Respondent to be received in evidence, coun-
sel for the General Counsel apparently offering it for the purpose of supple-
mentmg the witness' testimony after the witness had said that he believed
his testimony was in accordance with his pretrial statement I attach no
weight to the pretrial statement in my findings
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on his operations were it to be successful in or-
ganizing the Respondent's employees.
The argument of counsel for the General Counsel
as to the import of such comment as Papadakos is
reported to have made is specious. I can find
nothing more in'their content that an expression of
view made by Papadakos to technical Naval per-
sonnel far outside the presence of the 'hearing of
any maintenance or production employee. As to his
attack on the credibility of Papadakos, I have ex-
amined the latter's testimony as reflected by the
record, and after hearing him testify, and I find
nothing inconsistent to the extent it would destroy
his credibility as a witness.
It appears that sometime during the course of the
negotiations the question of the erection of a
cafeteria was raised in the presence of Thompson
and that a remark was passed to the effect that if
the Union came in it would require the Company to
erect a cafeteria. Thompson conceded that the sub-
ject of the cafeteria was mentioned during negotia-
tions concerning cost allowable to the Company.
As at the time of the hearing herein, no cafeteria
had as yet been constructed although, as I un-
derstand it, the cost of such a cafeteria has been ap-
proved or will be approved as an allowable cost
under new contracts being negotiated between the
Respondent and the Navy.
There is no evidence in the record that any of the
alleged statements or claims of company disad-
vantage shoul' the Union be successful in organiz-
ing the plant ever came to the attention of any of
the employees of the Respondent. I simply cannot
translate the preponderance of the evidence here to
a point where I can find it constitutes or did con-
stitute a violation of Section 8(a)(1) of the Act, I
do not believe that Papadakos intended to convey
the impression or to say that Scheperle initiated
conversations at these times about a union, and
then tell Papadakos that their agreement was being
violated by such, a conversation, as counsel for the
General Counsel would have me find. The parts of
the record in this respect indicate clearly that
Papadakos was trying as best he could to indicate
that he and Scheperle at all times abided by the
position of Scheperle that he would not discuss
union matters with representatives of the Respon-
dent. A single question and a single answer out of
context of cross-examination does not prove the
General Counsel's contention.
3. Questions of credibility; Gust Johnson and
Dorothy Papadakos; pretrial statements of certain
witnesses and the application of the Jencks rule
At the hearing, on motion the complaint was
amended to allege that since on or about January 1,
1964, the Respondent by Papadakos, its president,
and by its personnel department, kept its employees
under surveillance for the purpose of discovering
which of the employees were members of or en-
gaged in- activities on behalf of the Union. The
General Counsel relies almost entirely on the
testimony of Gust Johnson, the father-in-law of
Papadakos, who claims that he asked Papadakos, in
the privacy of his home, how he knew who the men
were who held union cards and who were in favor
of joining the Union, and Papadakos told him that
the personnel department took care of that and that
when they found out who they were they got rid of
them. Other testimony of this witness is discussed
below. This witness, I will find, was biased, preju-
diced, and unreliable. His testimony constitutes the
only attempt to prove -surveillance of employees, no
other person being called to testify; on this point.
Papadakos said he never inquired of anyone
whether they had union cards, did not inquire of his
personnel department concerning anyone who
might hold union cards, and denied the conversa-
tion described by Johnson. William Aylward, acting
personnel director, corroborated the testimony of
Papadakos, and testified that he did not himself or
through, the personnel department attempt to find
out who was in the Union or in favor of joining the
Union. 'While on the witness stand, Johnson dis-
credited himself as a witness without,any particular
help. He gave a pretrial statement to a Board
representative on June 4, 1965, in which he stated
under oath that he had had a conversation with
Papadakos in Coral Gables, Florida, in June 1964.
On June 20, 1965, when he reviewed,that state-
ment he changed the date of the conversation from
June 1964 to March 1964 because he was not in
Florida but in California in June 1964; he was very
certain and pat in his testimony concerning the
details of three purported conversations he said he
had with his son-in-law, Papadakos, concerning
what Papadakos had said about firing certain em-
ployees, but he could not remember anything about
the operation of Respondent's corporation, the lo-
cation of its testing grounds, and other such things
because, according to him, he never paid any atten-
tion to conversations regarding Gyrodyne. I re-
marked at the hearing, and I repeat now, that I be-
lieve very little of his testimony.
4. Questions of credibility; pretrial statements of
certain witnesses and the application of the Jencks
rule; Gust Johnson, Dorothy Papadakos, and Peter
Papadakos
Pursuant to Section 102.118 of the Rules and
Regulations of the Board, Series 8, as amended,
counsel for the Respondent moved for the produc-
tion of statements of witnesses in the possession of
the General Counsel for purposes of cross-examina-
GYRODYNE COMPANY OF AMERICA, INC. 265
tion ,13 and on cross-examination it was shown that
several such sworn statements executed by em-
ployees who testified as witnesses for the General
Counsel had been materially changed subsequent to
the execution of the original affidavit, such changes
not being sworn to by the affiant. It was shown that
witness Petito signed two statements on behalf of
the General Counsel; his statement dated July 29,
1964, and sworn to September 1, 1964, had crossed
out and initialed the following sentence "I am cer-
tain that my joining the Union and my talking to
employees in my department was the real cause of
my discharge." Witness Billone signed two state-
ments dated July 2 and November 7, 1964. On July
2, he swore that "I never spoke to any leadman,
foreman or supervisor about the Union, I do not
know how the Company knew I was in favor of the
Union." He testified that in November 1964, he
made some changes in the statement in which
counsel for the General Counsel inserted the words
in his own handwriting and the witness initialed it
without changing the date on the sworn statement,
the statement being changed to read "I never spoke
directly to any leadman, foreman or supervisor
about the Union except Bruno .. " Witness
Ladato gave two sworn statements, on July 22 and
November 7, 1964. He was not able to recall the
circumstances which caused him to furnish the
General Counsel and the Union with statements. In
his first statement, sworn to July 22, he made no
mention of any conversation with any alleged su-
pervisor, but on November 7 signed a statement
concerning the circumstance of his discharge and
then recalled that he had conversations with certain
alleged supervisors, This is the witness who testified
concerning a conversation with employee Zafrana
in the presence of Bruno and who said it occurred
on June 3, although on direct examination he had
said that it had occurred the week before. The wit-
ness Kargauer signed a sworn statement dated July
22, 1964, which he testified was altered and
changed in December 1964 to add certain state-
ments favorable to the General Counsel's case. Of
not much importance on the issues, but significant
on the question of Dota's credibility, is the fact that
he testified that he gave a statement to the Com-
pany and gave a copy of the statement to the Union
but did not give a statement to anyone else and
thereafter counsel for the General Counsel
produced three statements made by the witness.
The testimony of witness Waltz was contradictory
to hi$ signed, statement made on July 2, 1964, when
he' swore that the last union meeting he attended
was on June 3, 1964, whereas at this hearing he
swore that a March meeting was the last one he at-
tended. His casual approach to swearing to an af-
fidavit becomes apparent when it is shown, after his
attention was drawn to his statement, he said "yes,
that's close." In the cases of Kargauer, Billone, and
Waltz, their affidavits were altered and changed
after being sworn to, were not thereafter sworn to
and, according to these witnesses, the alterations of
their sworn affidavits were - in the handwriting of
counsel for the General Counsel. An examination
of the transcript of testimony of these men will
show that their testimony was not only contradicto-
ry but inconsistent. Certainly the changes made in
affidavits sworn to during the preparation of the
case against the Respondent cast grave doubt on
their credibility as witnesses.
Where the testimony of these witnesses and other
witnesses including Pipia, Damato, and Zafrano
(who gave pretrial statements) collides .with credi-
ble testimony of witnesses called by the Respon-
dent, I have chosen to credit the testimony of the
Respondent's witnesses.
Witness Bohler, a former employee, testified to
certain conversations, including one with Schmidt
concerning membership in the Union at which
Loganza was present. He testified concerning the
supervisory status of Loganza, Ward, and Hauck, to
a conversation with Dennis regarding unions, and
to a conversation he had with employee Morel and
a telephone conversation he had with Pipia. Bohler
gave a pretrial statement to a representative of the
Regional Office in which he stated that the day
after he had talked to Schmidt he met Loganza and
talked to him. On cross-examination Bohler con-
ceded that the statement was incorrect-that he
had talked to Loganza on the same day he talked to
Schmidt. He refused to sign a statement prepared
for his signature by counsel for the Union as con-
taining exaggerations. In a written signed statement
dated May 16, 1965, furnished by Bohler to one of
counsel for the Respondent, he stated, in part, "I
have never heard Bob Southworth tell any em-
ployee of Gyrodyne that if he did not stop talking
union he would be out of the shop",;-"I have no
knowledge of Bill Dennis questioning any employee
of Gyrodyne about union activity. I also have no
knowledge of Mr. Dennis' threatening any em
ployee of Gyrodyne on account of his union activi-
ty." In a written sworn statement executed by him
for a representative of the Board in August, Bohler
stated in part that
both during the activities of the IUE Union in
1962 and of the UAW Union beginning in
early 1963, William Dennis told me that any-
body that belonged to or had anything to do
with the Union, he was going to get fired. He
said this continuously up until the time I was
discharged in March of 1964. I recall his telling
me about a month before I was discharged,
that he wanted to find out who was prominent
The pertinent part of Section 102 118 is as follows ness in possession of the general counsel , if such statement has been
Provided, that after a witness called by the general counsel has testified reduced to writing and signed or otherwise approved or adopted by the
in a hearing upon a complaint under section 10 ( c) of the act, the witness Such motion shall be granted by the trial examiner
respondent may move for the production of any statement of such wit-
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Union in the blade shop. He told me "he,
would bounce him in a minute." I also state
that an assistant foreman in charge of inspec-
tion in the blade shop, Frank Loganza, told me
around a month or so before I was discharged
that I should keep my hands off the Union or
else I would be laid off. He testified to a re-
mark made by him to Schmidt to Loganza
who, on the following day, he said, told him
"look, if that guy is for the Union, I don't want
him around."
On the , basis of conflicts and inconsistencies in his
testimony , and the conflicts contained within the
written statements , I consider the testimony of Bo-
hler to be practically worthless.
It now becomes- necessary to pass on the weight
of certain testimony given by Gust Johnson,
Dorothy Papadakos, and Peter Papadakos.
During the session of hearing on May 27, 1965,
at 12:35 p.m., counsel for the General Counsel
stated that he intended to close the General Coun-
sel's case in the event a prospective witness, Fallo,
did not appear to testify . After the noon recess, and
subsequent recesses of time , counsel for the
General Counsel returned to the hearing room at
4:15 p.m. and presented Dorothy Mae Johnson
Papadakos as a witness . On the representation of
counsel for the General Counsel that Mrs.
Papadakos had had certain conversations with her
husband and had overheard conversations between
her husband and Gust Johnson, her father, bearing
on the discharges of the employees involved in this
case , Mrs. Papadakos was sworn on that day, and
was examined briefly , during which time counsel
for theRespondent objected to her testifying on the
basis that the husband-wife privilege had not been
waived by the husband. I did not precisely pass on
this , but sustained an objection to her further
testimony on the ground principally that if given,
her testimony would be incompetent and immateri-
al, on the basis of the facts already in the record. It
seemed to me at the time that to permit her to testi-
fy on the basis of the offer of proof would merely
open the door for Peter Papadakos to deny any an-
tiunion statements attributed to him by either his
wife or her father. Counsel for the General Counsel
obtained a pretrial affidavit from Mrs. Papadakos
on May 21, 1965. He informed me that she had ap-
proached him in regard to testifying and that he
had not approached her. My ruling was reversed by
the Board on special appeal by counsel for the
General Counsel and the Charging Party on the
ground that the alleged evidence "appears to be
relevant , material and not privileged."
Gust Johnson testified that his permanent re-
sidence was in Veronnia, Oregon, and that since
March 1965, he had resided at the home of Peter
and Dorothy Papadakos at Head of Harbor, St.
James , Long Island . It appears from his testimony
that-Peter Papadakos, the husband, had purchased
a house in Coral Gables, Florida, jointly in the
name of Johnson and his daughter Dorothy, and
that in March 1964, in that house, a conversation
took place between Johnson and Papadakos. Ac-
cording to Johnson, he had heard that Papadakos
was having trouble with the Union "trying to come
in to the Gyrodyne Company" and asked him how
he was getting along with the Union. Johnson said
that Papadakos replied "well, they are after me
because I fired 30 some men that were carrying
Union cards or who had signed up with the Union,"
and that he further said "before I would let the
Union get the best of me, I'll put the key in the
door and lock the building up and quit."
Johnson testified to another conversation held in
the home of the Papadakoses' at Head of Harbor,
which he said was in the latter part of March or the
first of May, "somewhere in there." He said it took
place at dinner about 7 o'clock in the evening,
when he, Dorothy, Peter, and the children were all
in the kitchen; that Papadakos came into the house
"like he always does , looking sad , and as if he was
all in and my daughter said , ` what's the matter?' to
which Papadakos replied `Oh , troubles , troubles,
troubles.' Dorothy asked him `what about?', and
Papadakos replied ` Oh, some more trouble with the
Union and the National Labor Board and they are
after me because I fired these 30 some fellows that
were in favor of the Union and held Union cards."'
Johnson testified with respect to another conver-
sation in May 1965, at a time when he, his
daughter, and Papadakos were in an automobile
going to the Mariner 's Restaurant at Huntington,
Long Island. Johnson testified:
Oh, I asked him again that time how he was
coming along with this union and National
Labor Board and he says, "the union claims
now that I fired 80 people" he says, "I actually
only fired 30 or some." He says the rest of
them I laid off because there was no work.
Johnson said further "He called them agitators. He
got rid of all the agitators."
What Johnson remembered and could not re-
member on cross-examination was surprising. He
knew nothing about the business of Gyrodyne, its
various plant and test locations, and other similar
matters except that he did remember that he had
heard the Company employed some 800 or 900
employees at its St . James plant . Although he knew
that Dorothy had retained a lawyer in Coral Gables
when domestic discord arose between her and
Peter, and although he had gone to the trouble to
go to the court house in Smithtown, Long Island, to
examine a decree obtained by Catherine
Papadakos, Peter's first wife, against him and the
details of alimony and maintenance payments, and
although he knew and had accompanied Dorothy to
New York City to consult with a firm of attorneys,
he did not know the name of the firm except that
one member was Jerry Rubenstein, that he visited
the Empire State Building and Rockefeller Center
in New York, but was not too much impressed with
GYRODYNE COMPANY OF AMERICA, INC. 267
the name of Tiffany although he and Dorothy had
gone in there ostensibly to buy a gift for a friend of
the Papadakoses . He furnished a pretrial statement
to counsel for the General Counsel on June 4,
1965, in which he first stated , as he first testified,
that he had engaged in conversation with Peter in
Coral Gables in June 1964 . On the day before he
testified in this hearing (June 21, 1965), he
changed the date in the statement from June to
March when it was pointed out to him that he was
not in Coral Gables in June . Nevertheless , when he
testified , he adhered to the March 1964 date as the
date of that conversation . Although he kept a diary
in which he was in the habit of recording important
dates , he did not record the dates on which he
called at the Smithtown Post Office to give his
pretrial statement, the date on which his daughter
first called either the Union or the Regional Office
of the Board in connection with the instant case, or
any other important date mentioned in his
testimony. In summary , Johnson remembered three
snatches of three conversations and yet in the very
statement he gave on June 4 he had to change vital
and material dates in order to make his story stand
and he changed them on June 20 . He conceded
that while residing at the home of his son-in-law,
Papadakos, he looked into the financial arrange-
ments between Papadakos and his first wife,
Catherine, that he, while a guest of Papadakos,
went with his daughter to consult counsel on her
domestic problems and , apparently on the same
day, went over to Tiffany's, a world famous store,
to evaluate , I presume , and to buy jewelry ; that he
knew during this period of domestic discord
between his daughter and Peter, that she had volun-
teered to appear in this case to testify against her
husband. I was not impressed by the demeanor of
Johnson as a witness . At the hearing , in response to
an assertion by counsel for the Union , I said: "As
the Supreme Court has pointed out again and
again, you don 't have to discount everything a wit-
ness says, because you believe a part of it. He
[Johnson] is very careful in certain carts, but on
material parts I don 't believe him . I will tell you so
again and again ." After close examination of the
transcript of testimony , I adhere to that comment, I
discredit Johnson as being an inept stoo ge.
Dorothy Mae Papadakos , the wife ofeter , testi-
fying over objection of counsel for the Respondent
based on the husband -wife privilege , said that her
father had arrived at the Papadakos home at St.
James on March 23, 1965 , and that thereafter, dur-
ing the month of March, she had overheard a con-
versation in their kitchen between Papadakos and
Johnson:
The conversation , sir, took place in my home
in the kitchen around dinner hour. I would say
the time was between March 23 and March 27
and Peter had come home from work and
looked quite unhappy , and we asked him, my
father and I asked him why he looked so
depressed and unhappy , and Peter said that he
was having difficulties with the National Labor
Relations Board because he had laid off 30 em-
ployees whom he knew were union card hol-
ders . He actually said he had laid off 80, but 30
of the 80 were known to be union card holders
and he did say that hearings were oing on and
the unions were giving him difficulties also.
And he further stated that if the hearings go in
favor of the union, the company will have to
reinstate these men to their jobs and pay back
$300,000 in back wages , and prior to this, this
gentleman over here , Pete Roman , I know had
worked for Gyrodyne and Peter had said to me
that if he fired Pete Roman because he was a
union card holder and he was going to weed
out all of the known union card holders., And
he thought he had weeded them all out by fir-
ing the 80 people , and the 30 were known to
be union card holders.
She testified to another conversation she placed as
having taken place on Wednesday , May 19, in an
automobile:
While we were in the car driving to the Three
Village Inn Restaurant I asked Peter how
things had gone that day at the National Labor
Relations Board hearing because he told me he
was there that day at these hearings, and he
said he was really up against it because they
had too much evidence against him , indicating
that they knew that he had fired these 30 men
because of their union affiliations, and my
comment to Peter 's statement was that he
should never have fired these people in the
first place if he knew they were union card hol-
ders .... He said if the union won this case he
would have to reinstate these men to their jobs
plus pay , the company would have to pay
$300,000 in back wages.
She further testified:
Q. (By Mr . Rubenstein ) Mrs. Papadakos,
you mentioned Peter Roman. Did you tell the
trial attorney of the Board about Peter Roman
before?
A. No, sir . I just saw him here today and it
refreshes my memory that many times Peter
Roman had chauffeured me into New York
City and had helped - me with my grocery
shopping, and I had mentioned to Peter what a
fine man Peter was and how helpful he had
been to me , and Peter said , "Well, this man is
going to be fired because he is a known card
holder , a known union card holder."
Q. You say that this refreshed your memory
just when you saw Mr . Peter Roman today?
A. Yes. The man is sitting right there.
According to the statements of counsel and Mrs.
Papadakos , she appeared voluntarily to testify at
this hearing. At the outset , she said that she en-
joyed for the first time in her relationship. with
Papadakos being given the privilege to tell the
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truth, that he had done nothing but lie to her and
decieve her:
He has told me the truth on many things but
he-when Peter first met me he lied to me, he
did not tell me he was married at the time to
Catherine Papadakos and lived with three chil-
dren at St. James. It took him 4 years to tell me
the truth, sir.
She said that when she was visiting Peter on Long
Island when he was living with his wife, Catherine,
she was aware that he was married but that he had
told her he loved her and had asked Catherine for a
divorce, and was telling the truth then; that she
"believed in this man because he said he was going
to marry me. He had honorable intentions and he
was getting a divorce from his wife." Summarizing
her testimony, it appears that after she and Peter
had lived informally together, Papadakos obtained
a Mexican divorce and married Dorothy in a civil
ceremony in Juarez, Mexico, which Dorothy now
contends "is not legal." She said that on May 27,
1965, the day she first was called as a witness in
this case, she was then in fear of her life because of
Papadakos, and testified on June 21 that she still
was in fear of her life from him. In response to the
question "have you slept in the same bedroom with
your husband since these hearings started and you
came to court here?" She replied that she had
"because my husband has offered me a trip to
Honolulu and Lou Alfieri offered me a 1965 Cadil-
lac and they have been offering the world to me on
a silver platter so I would not testify against him at
this hearing and tell the truth." She testified further
on cross-examination:
I would like a legal marrige, sir, and to me that
would be life on a silver platter, to have a legal
marriage -and to live a normal, every-day life
which everyone else is living. My father saw
Peter slap me around in the house and knock
me about and he has seen the violence of this
man. I am afraid of him. I once tried to call the
police and Peter grabbed the phone away from
me and stopped me and he told me in front of
my father he was going to fix my wagon and
take care of me, but good. He has had in-
vestigators coming into my house under false
pretenses and my house has been under sur-
veillance for one month. Mr. Vincent Gill [a
private investigator] has hired these cars to
drive, up and down, up and down. In fact, I am
on such, good terms with these detectives that
when they go by they wave to me and I wave
back to them,
Conceding that she had lived with Peter and had
had marital, relations with him up until June 19, she
maintained that he was trying to bribe her.
Briefly, the cross-examination of Dorothy further
disclosed that she and Peter had been married for
approximately 4 years, that their acquaintanceship
began about' a year before that, that a decree was
entered in a divorce action between Catherine and
Peter in New York in July 1964, and in November
1964 Dorothy had retained an, attorney in Florida
to represent her in her domestic dispute with Peter,
and that it was only after her father had read the
decree of the New York court at Riverhead, Long
Island, did she know that it provided only for a
separation and not a final decree of divorce from
Catherine; that Dorothy attempted to commence
an action against Peter in Florida, but subsequently
they became reconciled to the point where she
moved into the house at St. James, Long Island;
that "Peter had promised to get a divorce and take
care of things," and that Papadakos had obtained a
Mexican divorce from Catherine in April 1961; that
Papadakos through his attorney had attempted to
pay Dorothy's Florida lawyer for services rendered
to her; that Spooner, Dorothy's Florida attorney,
placed a lien against the Florida house because
Spooner and Papadakos' attorney could not settle
on a fee; that Spooner had hired a New York
lawyer "to help him get this fee here in New York
State." Having been unsuccessful in an attempt to
obtain service of process on Papadakos in Florida,
she discussed by telephone the possibility of a
reconciliation. She testified:
Mr. Papadakos wanted a reconcilliation and I
had told him that I realized that I could not get
alimony or child support in Florida and I told
him, your Honor, that this was fine with me. I
said come down, well sell the house here and
I'll go my way and you go yours and Mr.
Papadakos is the one who wanted a reconcilia-
tion and he said he is the one who pursued this.
I was willing to settle in Florida for nothing. I
told him I wanted to go back to La Jolla to
live-San Diego, be near my relatives. I told
him my relatives would help me out. I said I
don't need alimony or child support. And he
said, "well, you need someone to take care of
you" and he said, "we will try all over again,"
and he said, "let's try for reconciliation," and
he said, "this time I will meet your demands."
And I told him I wanted a little diamond ring
because first at-when we were married, I was
not given the proper jewelry that most men
give their wives when they are married. And I
came up to New York because Peter had
promised me that he would change his Europe-
an ideas and European way of living and treat
me like an American woman should be treated
and he would be more-he to become more
Americanized. And I came up here under -these
conditions and I told Peter that I did not want
to come to New York State and live in a big
house on Gyrodyne's property because he lived
there with his first wife Catherine. And I told
him I wanted to have my own little home
where I would have privacy and the house
would not belong to Gyrodyne stockholders. I
have no privacy there and Peter said he would
if he could have a reconciliation with me, get
GYRODYNE COMPANY OF AMERICA, INC. 269
me a home in my name where I could have
privacy. That we could live like all other peo-
ple live and then another condition was that
Dmitri [Peter's oldest son by Catherine] would
not come around my house because Dmitri had
spoken very vulgar to me in the past, Dmitri
had thrown me into the Gyrodyne swimming
pool with my clothes on while his father stood
by and didn't lift a finger to help me.
It appears from her testimony that after discussing
the matter over the telephone, with Peter in New
York and Dorothy in Florida, Peter later purchased
for her at Tiffany's a ring at a cost of $ 8,000, a
necklace at $3,000, a set of earrings for $2,000,
and did later install her in a house at St. James. It
further appears that Spooner sued Papadakos for
$5,000 attorney's fee for services rendered to
Dorothy. Dorothy, 1955 Miss Oregon and runnerup
for Miss America in the Miss America pagent of
that year, testified to the trophies, furniture, and
the "house full of personal belongings" brought by
her from Coral Gables to St. James and testified
further to her ability to earn money -through acting
and television commercials. According to the
testimony of Papadakos, he purchased the house at
St. James in the name of Dorothy.
It will serve no useful purpose to continue to re-
late other facts brought out on cross-examination as
to the relationship between Peter and Dorothy
Papadakos. I shall note that when, during the
course, of this hearing, I declared a short recess,
Peter Papadakos was served with a summons and
complaint in a domestic action brought by Dorothy
against him, Dorothy being represented by the firm
of Rubenstein & Rubenstein, of which Reuben Ru-
benstein, attorney for the Charging Party herein, is
senior member. It appears from a statement of Mr.
Reuben Rubenstein that his firm was retained as
counsel for Mrs. Papadakos during the course of
the hearing herein, and, that the domestic action is
directly in the hands of his son, Jerome, the junior
partner of the firm. In the complaint, Dorothy has
asked for an annulment , maintenance , and attor-
ney's fees.
On the basis of the testimony of Dorothy
Papadakos standing alone, without the denials and
explanations of Papadakos of the statements at-
tributed to him by her and her father, I would dis-
credit her. Her motive for her voluntary ap-
pearance is evident . She is vindictive ; her hostility
and her prejudice and bias and personal interest
against Papadakos stand out all through her
testimony.
Papadakos denied that he made the statements
attributed to him by Mrs. Papadakos and Gust
Johnson . Without retracing his testimony with
respect to his domestic relations with Dorothy, I be-
lieve it sufficient to advert here only to his
testimony concerning the purported statements
made by him concerning the Union and the
discharges of some 30 men.
Concerning the testimony that was given relative
to the 30 employees who were terminated,
Papadakos testified:
The only statement I have made either to my
father-in-law or to my wife together or non-
together, is that there is a case pending where
a-despite a substantial number of people have
been laid off, the Government claims that I had
prejudice against 30. 1 only explained what the
case was about. I made the remark that it was a
totally unjustified case because I was accused
of being prejudiced on a portion of the people
that they were discharged and I had made no
replacement. It was quite obvious that many
people were not required and why should I be,
you know, prejudiced to a portion of them.
That's the only-what I explained what the
case was about and expressed my feeling. And
that's the only thing I ever discussed.
He denied that he had ever stated that he had let
anyone go because of the fact that they were union
card holders.
In regard to the kitchen conversation he denied
the statements attributed to him and testified:
. it was just a twist of the statement, of say-
ing what the case is about, saying that I-I am
being accused of having done such a thing as
being turned around and said I did such a
thing. I believe, sir, I have more intelligence
than to incriminate myself if I was guilty. I was
just trying to explain. And the conversations
did not take place too many times. Once or
twice explaining what the case was. And when
you- say to someone, someone accuses me of
having done something wrong, then he turns
around and said, oh, you said you did it-obvi-
ously that's what you have in front of you.
With respect to the reported conversation in the
automobile on the way to the Inn in May 1965, he
denied the statement attributed to him and
testified:
I would say, sir, I am positive I have refrained
especially,in working-when I'm getting out of
the car to go out to dinner and all that, we al-
ways try to say something else. I am out of the
house. Just to get out of my daily problems and
I will say not only I did not say what he said
but I am positive I did not discuss anything at
all as far as concerning union or any other ac-
tivities.
He denied having referred to the personnel de-
partment in a conversation with Johnson, denied
ever inquiring of the personnel department whether
any employees held union cards, denied inquiring
of any employee if they had union cards or if any-
one knew they had union cards, and, with respect
to the purported statements made by him on May
19, denied making the statements Dorothy said he
made, pointed out that he was not at the hearing
on May 19 and had attended the hearing only on
June 21, when he first testified.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the testimony of his wife that he
had offered her a trip to Honolulu he said:
In Honolulu , we have a field service station
and there is a certain amount of research work
going on by the Navy and in the early part of
June , there was a meeting scheduled , kind of a
symposium type, certain companies and the
Navy will get together to discuss a particular,
shall be call it problem or the solution- of a
problem in-that the Navy's experimenting
with. And from the people that were going to
go from the company we decided, I decided in
conjunction with my avionics vice-president
that the two of us should go because this was
an important meeting.
He said he discussed the matter with ,Dorothy and
told her that he would like to have her go with him;
that suddenly, on about May 24, Dorothy decided it
would be a good idea to go with her father and two
children to California. to relax for "a couple of
months and I was going to join her on July the 9th
on my vacation. And she mentioned for me to join
her"; that on Thursday, May 27 she told him that
she had spoken to a travel agency for a schedule,
that the cost was high and that he said that if that
was the case they probably would go one way by
ship and "we fly back the other way," and that a
few minutes later, when he telephoned her he was
informed, that she had been "in her words, taken
Gestapo style and brought here [to the hearing]."
Papadakos, as I remarked before , was a voluble
witness . I think , in his attempt to be precise in the
use of the English language , he attempted to make
his meaning clear by the use of many words. I ob-
served his demeanor on the witness -stand and heard
him on direct examination and cross-examination
for many hours. I believe he testified according to
his best recollection , and I have no reason to doubt
his credibility. On the other hand, the inconsisten-
cies and contradictions contained in the testimony
of,Gust Johnson and Dorothy Papadakos, together
with their obvious hostility and self-interest, impel
me to credit the testimony of Papadakos over
theirs . Their testimony adds nothing to the case.
CONCLUDING FINDINGS
I conclude and find that each question to be an-
swered on the facts herein , as set forth in subsec-
tion A , 2, of this section III, should be answered in
the negative . The motion of the Respondent to
dismiss the complaint as amended is therefore
granted.
Upon the basis of the foregoing findings of fact,
upon the preponderance of the evidence and upon
the record as a whole , I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Gyrodyne Company of
America, Inc., is , and has been, at all times material
herein an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the
Act.
2. International Union, United Automobile,
Aerospace & Agricultural Implement Workers of
America, UAW, AFL-CIO, is, and has been at all
times material herein , a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in and is not
now engaged in unfair labor practices within the
meaning of Section 8 (a)(1) and (3) of the Act.
4. The complaint as amended should be
dismissed in its entirety.
RECOMMENDED ORDER
It is recommended that the Board enter an order
herein dismissing the complaint as amended.