Tecom, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1985

277 N.L.R.B. 294 (N.L.R.B. 1985)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tecom, Inc. and John Russell Wantz , Jr. Case 5-
CA-16847
8 November 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 31 May 1985 Administrative Law Judge Phil
W. Saunders issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed' its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,I and
conclusions and to adopt the recommended Order.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
At all times material herein, Respondent, a Texas cor-
poration with a headquarters office in Austin, Texas, and
an office and place of business in Emmittsburg, Maryland
(the facility), has been engaged in the business of provid-
ing maintenance services to the United States Govern-
ment at the National Emergency Training Center, in
Emmittsburg, Maryland.
Based on a projection of its operations since about Oc-
tober 1, 1984, at which time Respondent commenced its
operation at Emmittsburg, Maryland, Respondent, in the
course and conduct of its operations described above,
will annually perform services valued in excess of
$250,000 to the Federal Emergency Training Center, an
agency of the United States Government.
Admittedly, Respondent is now and has been at all
times material an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Tecom,
Inc., Emmittsburg, Maryland, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings . The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
Steven J. Anderson, Esq., for the General Counsel.
Robert D. Kilgore, Esq. (Foster, Bettac & Heller), of San-
tonia, Texas, for the Respondent.
J. Russell Wantz, Jr., pro se.
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Law Judge. Based
on a charge filed on November 30, 1984, by John R.
Wantz Jr. (the Charging Party or Wantz), a complaint
was issued on January 14, 1985 (amended on February
21, 1985), against Tecom, Inc. (the Respondent, Compa-
ny, or Tecom) alleging violations of Section 8(a)(1) of
the Act. Respondent filed an answer to the complaint de-
nying it had engaged in the alleged matter. Both the
General Counsel and Respondent filed briefs in this
matter.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
II. THE LABOR ORGANIZATION INVOLVED
There is no labor organization, as such, involved in
this case.
III. THE UNFAIR LABOR PRACTICES
It is alleged that about October 25 and November 3,
1984, the Charging Party concertedly raised questions
and complained to Respondent about matters pertaining
to the health insurance policy Respondent had recom-
mended for its employees, and that about November 16,
1984, Respondent terminated the Charging Party. It is
further alleged that Respondent so acted because the
Charging Party engaged in the conduct described above,
and in order to discourage employees from engaging in
such activities or other concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection.
Wantz was hired by Respondent about September 28,
1984,1 and from September 28 to October 5, worked for
Respondent as their project foreman at its Emmittsburg
facility. About October 5, John Trout became project
foreman and Wantz assumed the position of "Support
Section Work Leader." He held the position until he was
discharged on November 16.
As indicated, under contract to the National Emergen-
cy Training Center (N.E.T.C.) Respondent provides
maintenance and renovation services for a facility locat-
ed at Emmittsburg, Maryland. The Emmittsburg facility
was a college campus until about 1979 when it was ac-
quired by the N.E.T.C., but from then to the present, the
facility has been under renovation for purposes of con-
verting it to Government use as a training institute.
Before Respondent acquired the maintenance and ren-
ovation contract from N.E.T.C., the contract for such
services was held by Technical Services Company, and
approximately 50 percent of the employees working for
Technical Services were transferred to Respondent's em-
All dates are 1984 unless stated otherwise
277 NLRB No. 38
TECOM, INC.
ployment when it acquired the contract. Background tes-
timony shows that employees of Technical Services also
received health insurance as a fringe benefit, and to
which their employer contributed some of the premium.
However, Respondent decided, when it acquired their
contract, to discontinue this practice, and at an introduc-
tory meeting held about September 28, before the con-
tract in question became effective October 1, Respond-
ent's employees raised the issue of health insurance with
Respondent's president. This record also reveals that
Robert Robichaud, Respondent's project manager at Em-
mittsburg , was.present at this meeting and, in response to
employees' concerns, Robichaud was directed to re-
search group health insurance plans available, even
though the Respondent would make no contributions to
it, and to report to employees the options available.
Wantz testified that about October 24 he first saw a
document entitled "Million Dollar Comprehensive Major
Medical Plan from Mutual of Omaha," when Foreman
John Trout made such copies available at the facility
warehouse. Wantz testified that he then made some "in-
terlineations" on his copy.2
On October 26, Robichard met with about 25 employ-
ees of Tecom to discuss various health insurance policies
and proposals he had looked at and, in so doing, handed
out the Million Dollar Medical Plan from Mutual of
Omaha (G.C. Exh. 6) and stated that the plan appeared
to be "the best deal."
Wantz testified that after General Counsel's Exhibit 6
was handed out to employees, and possibly before the
meeting with Robichaud on October 26, several employ-
ees approached him with questions about the policy's
benefits, language, and coverage-that these employees
included the two Mummer brothers (Kenneth and
Robert), Harry Harbaugh, Charles Sickle, and Jerome
Barefoot. The General Counsel contends that Wantz re-
ceived these questions because he was a more senior em-
ployee than the others, had more experience in the con-
struction trades, and also because of the position as a
work leader with Respondent.
As indicated in this record, in addition to questions
other employees wanted answered, Wantz himself had
encountered heart problems several years before joining
Respondent, so he was also personally concerned about
the provisions in the insurance policy and proposals
therein. In particular, it appears that Wantz would have
to discontinue his other insurance benefits before picking
up a new medical plan, and obviously this was another
reason for his concern over the policy. The General
Counsel points out that the concerns of Wantz and the
other employees are particularly understandable in light
of the fact that the policy here in question is quite costly
to employees and the Respondent contributed nothing to
such costs.
During the time when Wantz had his copy of General
Counsel's Exhibit 6, he marked it so he could remember
the concerns expressed to him about the provisions of
the insurance policy by other employees as well as his
own questions. At the hearing before me, Wantz was
asked why he put the marks or made the underlining on
2 See G C Exh 6
295
his `dopy and, in reply, he stated, "Because it was obvi-
ously some specific question or problem in their mind or
mine." Wantz testified that he told the interested em-
ployees that he shared many of their questions , and that
he marked certain lines on General Counsel ' s Exhibit 6
to make sure such matters were discussed at the upcom-
ing meeting, and testified that the "bigger majority" of
the underlinings in question were made before the pres-
entation given by the insurance agents from Mutual of
Omaha.
As previously indicated, on October 26, Robichaud
convened an on-the-clock meeting of employees , during
which representatives of Mutual of Omaha were present
to explain to employees the particular benefits their
health insurance policy would provide. John Shupe and
two other agents from Mutual of Omaha made the pres-
entation , and questions were then submitted from the em-
ployees present. Wantz testified that he asked about 25
percent of the questions which were raised at this meet-
ing, and that at least on one occasion during the meeting,
he prefaced his question by stating , "In the interest of
some of the other gentlemen present and myself." Wantz
further testified that during the meeting he also framed
other questions in such a form which indicated that he
was asking on behalf of others, and in particular Wantz
inquired about maternity benefits, and which, in all likeli-
hood, was a subject which he himself was not overly
concerned about, having reached the age of 56. Robi-
chaud was present through this meeting on October 26,
and testified that the Mummer brothers asked as many
questions as Wantz, but that Jerome Barefoot asked "by
far" the most questions . John Shupe, agent for Mutual of
Omaha, testified that Wantz did ask several questions at
their meeting on October 26, but that no one told him
that Wantz was speaking on behalf of the other employ-
ees, and in his recollection at least seven employees
asked as many questions as Wantz. Shupe also testified
that the questions asked by Wantz were of a personal
nature, but indicated that this type of a discussion took
place between him and Shupe follo wing the general
meeting.
This record further reflects that several of the ques-
tions posed to Agent John Shupe were difficult for him
to answer; in fact, he could not answer some of them, so
he turned those questions over to the other two agents
present . At the conclusion of this meeting, employees
broke down into smaller groups, and Wantz then asked
Shupe to provide him with a written copy of the actual
policy proposed so that he could determine exactly what
was in it. Wantz informed Shupe that he wanted to be
guaranteed continued coverage because of his heart con-
dition which made it very difficult to get insurance; that
in his estimation General Counsel's Exhibit 6 was "very
vague" in outlining certain coverages; and that he also
wanted the actual policy for his own personal reasonings
and for questions that were asked of him by his fellow
employees. Shupe promised Wantz that he would pro-
vide him a copy of the policy no later than October 29.
It appears that October 29 was critical because this was
when the prior Technical Services employees ' health in-
surance expired.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wantz also credibly testified that between the dates of
October 26 and November 3 he had conversations with
employees Barefoot and Robert and Kenneth Mummer,
wherein they asked if he had yet received his requested
policy, and he had to reply that he had not.
When October 29 arrived and no policy had appeared,
Wantz called Robichaud to see if he had a copy , but Ro-
bichaud had not received any policy . Wantz then called
Shupe at the number he had been provided with, and
Shupe's wife answered the phone and said that her hus-
band was not in . Wantz then complained to Mrs. Shupe
that her husband had not kept his promise to deliver a
copy of the proposed policy by the agreed -upon dead-
line. Mrs. Shupe explained that she was not fully aware
of all the insurance ventures her husband was engaged
in, but she would give him a message . Wantz testified
that Mrs. Shupe then questioned him as to why he was
concerned , and he then informed her of his heart condi-
tion and that he would be the sole contributor to the pre-
mium . Wantz then went on and again voiced his com-
plaint that Shupe had not kept his promise, that this was
not a good way to do business , and felt that this was
"misrepresentation " if he did not live up to his word.
John Shupe testified that after talking to his wife about
her phone call from Wantz , he was so irritated and upset
that he was afraid to call Wantz back , but instead he
called Robichaud and complained that he did not under-
stand who was "representing" employees-on the one
hand he understood that Robichaud represented Tecom,
and on the other hand he understood that Wantz had
called to find out the provisions of the policy represent-
ing Tecom employees . The specific testimony by Shupe
in this respect is as follows:
Anderson : Not about the phone call, but about
representing employees . What was it that you said
to Robichaud about Wantz representing employees,
about him representing employees?
Shupe: Okay. As I remember, I was hot. I flat
out asked him who is representing the employees at
Tecom? You or Mr. Wantz? That was something I
wanted to get rectified , because if Bob was not for
the employees, I wanted to find out who to talk to.
Now I was led to believe from the beginning this
gentleman is in charge of Tecom . This gentleman
was speaking for the employees.
Anderson: Okay. Now, the issue about who was
representing the employees , that came up because
of something about your wife had said to you.
Shupe: The gentleman calling up and reading my
wife the riot act. Yes, that did come up.
Anderson: Okay.
Shupe: I wanted to know what was going on.
[Emphasis added.)
This record shows that on October 31, Wantz provid-
ed Robichaud with a check which included an amount
for dental benefits . However, since employees had elect-
ed not to be covered by dental benefits , Robichaud
called Wantz to his office and requested that he rewrite
his check. It appears that the meeting in Robichaud's
office lasted about an hour and an agent from Mutual of
Omaha was also present . During the meeting Wantz indi-
cated that he did not want to rewrite his check-rather
he wanted the extra amount ($6) credited to his account.
Wantz stated that he understood that his check had to be
submitted to the Company at the same time as other em-
ployees so that he could be included in the policy with-
out having to undergo medical examination and wanted
to be included in the dental plan when it was negotiated.
Wantz testified that at this ' time Robichaud became irate
and told him that he had caused two disturbances over the
insurance policy and that he would either rewrite the
check or "else pack your things and get out."
The General Counsel argues that the clear intent of
Robichaud 's remarks was to threaten that if Wantz did
not go along with the insurance arrangements without
further "disturbance ," he would be discharged.3 After
Robichaud issued his ultimatum , Wantz rewrote his
check and gave it to Robichaud.
Although Wantz submitted this check to Robichaud
on October 31, as of November 2 the health insurance
policy had still not taken effect due to a misunderstand-
ing between Robichaud and the insurance company
about the form of checks to be submitted . Consequently,
on November 2 Respondent 's employees were informed
that if they wanted the group insurance they should
come to work with a blank check on the next day. As
indicated, the fact that the policy in question had not
gone into effect was important because Tecom employ-
ees who had worked for Technical Services had seen
that by now their former insurance had expired and,
more importantly , Robert Mummer had been admitted to
the hospital believing that he had insurance benefits
when, in fact, he did not. This caused Wantz to take ad-
ditional action.
On November 3, Wantz wrote a letter (to whom it
may concern) wherein he complained about the confused
handling of the whole insurance matter by Respondent.4
Wantz delivered a copy of his letter to Lynn Laycock,
Respondent's executive vice president for financial af-
fairs, and about November 8 or 9, he also showed a copy
of the letter to Will Rose, Respondent 's vice president,
who was present at Respondent's facility to investigate
and make a survey of personnel morale. Wantz asked
Lynn Laycock to see to it that the office of Respondent
(in Austin) be recipient of his letter, and Laylock replied
that he would do so. Wantz had no personal knowledge
of whether Laycock gave Robichaud a copy of his
letter.
This record shows that within 7 to 10 days after
having delivered the November 3 letter to Respondent's
agents named above, Wantz was discharged allegedly
due to the abolishment of his job position.
The Company 's position is that the Charging Party
was a supervisor who was unprotected by the Act.
Moreover , regardless of his status as supervisor or em-
3 Robichaud testified that he did not mean to refer to the October 26
group meeting with employees when he said that Wantz had twice
caused a disturbance over insurance , but rather he was referring to
Wantz ' telephone call to Shupe's wife and Wantz' conversation with Ro-
bichaud over the rewriting of the check because dental coverage was not
included in the policy
4 See G C Exh. 7.
TECOM, INC.
ployee, the Company further maintains that the Charging
Party was engaged in unprotected individual activity as
opposed to protected concerted activity. Finally, the
Company contends that it would have discharged Wantz
regardless of any alleged concerted activity because it
believed that continuing to employ him as support sec-
tion leader would have resulted in the U.S. Government
not reimbursing Tecom for his salary.
Turning first to the contention that Wantz was a su-
pervisor, and therefore not protected by the Act, counsel
for Respondent argues that Wantz was expected to exer-
cise independent discretion in directing and assigning
work-that Tecom's making Wantz responsible for
timely and proper completion of work assignments; his
having a substantially higher pay rate than the employees
under his daily supervision; his using a desk and two-
way radio; the different manner in which his time was
accounted as opposed to the employees under his super-
vision; as well as the fact that both Wantz and the em-
ployees considered him to be their supervisor--are all in-
dicia of his supervisory status.
The record reflects that after the first week of employ-
ment, Wantz was paid $9 an hour and was employed in
the position of "Support Section Work Leader." In this
position he directed the work of five employees-two
grounds maintenance laborers, William Greco and Leo
Hobbs ($5.10/hr); two furniture movers, David Little
.and Ronald Jenkins ($4.90 an hour); and one clerk couri-
er, Charles Sickle ($5.10 an hour, later increased to $6.50
an hour). As indicated, Sickle's job was to deliver the
mail at the facility and he operated in an autonomous
manner, and the extent of Wantz' direction of the other
Four individuals was to pass on "work orders" to them
which he received from John Trout, Respondent's fore-
man. It appears that each day Wantz would receive com-
puter generated work orders which indicated the type of
work to be performed, e.g., planting trees, cutting the
grass, or moving and setting up chairs and other furni-
ture in a particular room, etc. Wantz would look at the
orders and determine whether they involved grounds
maintenance or furniture moving and then pass the
order's on to the appropriate employees by replacing
them in a cubbyhole in the foreman's office. The furni-
ture movers and/or grounds maintenance laborers re-
ceive the work orders at the beginning of the day and
then perform the jobs as so indicated. I am in agreement
that clearly there was no supervisory discretion involved
in determining whether or not the work orders referred
to furniture moving or to grounds maintenance person-
nel.
This record also shows, by the credible testimony of
Wantz, that he spent about 20 percent of his day doing
paperwork, and the remaining 80 percent of his average
clay was involved in assisting the grounds maintenance
personnel or the furniture movers by actually helping
them in the jobs assigned to them. Moreover, after com-
pleting the daily task at hand, the furniture movers
and/or the grounds maintenance personnel would then
indicate on their work orders that the jobs had been
completed, and would also note how many hours were
involved in completing the tasks and then they would
return the work order to Wantz who would copy the
297
same-cm his records, and then pass those work orders
and the reports on to his supervisor John Trout. It was
also established that in the event there was not enough
grounds maintenance work or furniture movers' work to
occupy each two-man team , Wantz would then consult
with Trout and, with his permission, assign these em-
ployees to any work available . Furthermore , whereas
Wantz wore a uniform identical to other members of the
support section , John Trout wore a tie and white shirt.
Wantz had also the same hours as some members of the
support section while other members continued to work
a half-hour or so after Wantz left the jobsite , and Wantz
punched the clock as did the others . Wantz testified that
he did not consider himself to be a supervisor .5 Wantz
did not have the authority to hire, fire , or discipline em-
ployees assigned to his team, and all hough Robichaud
testified that Wantz had access to employees ' personnel
files, admittedly Wantz was never told that he had this
access nor had he ever examined material in other em-
ployees' personnel files. Wantz was also unaware of the
salary being paid to others on the support section team,
and he could not grant members of the support section
time off without approval from Trout and/or Robichaud,
and he did not attend supervisory meetings . Moreover,
in Trout 's office there was a small table which Wantz
used , but John Trout had a large desk which had a tele-
phone on it unlike Wantz' table. Wantz carried a walkie-
talkie radio as did several other unit employees.
I am in agreement that from the foregoing it is clear
that any "direction" Wantz gave to members of the sup-
port section was routine and regular in nature and in-
volved no supervisory discretion , and Wantz ' responsibil-
ity in this regard was due to his superior experience. In
the final analysis, none of the detailed evidence concern-
ing Wantz' day-to-day authority demonstrates any mean-
ingful indicia of supervisory authority. Instead, it appears
that Wantz merely acted as a leadman or conduit and,
accordingly, Wantz was not a supervisor within the
meaning of the Act.
The Respondent contends that during the pertinent
time periods involved herein, Wantz was not engaged in
protected concerted activity-that his was an individual
effort. Counsel for Respondent argues that, based on the
testimony of both Robichaud and Shupe (a disinterested
witness), the Charging Party at no time indicated he was
asking questions on behalf of the group of employees,
and that all of his questions were of a uniquely personal
nature-that most of the persons for whom he allegedly
"spoke" at the meeting with the insurance agents asked
their own questions during that meeting, and that these
individuals were obviously not dissuaded from applying
for insurance as most of them authorized payroll deduc-
tions for this purpose. Again, maintain!; the Respondent,
the questions by Wantz centered on the application of
the group policy to his individual needs, not that of the
group.
5 In his "to whom it may concern" letter, Wantz did refer to himself as
a "foreman" which was his prior position. Clearly he glorified "Support
Section Work Leader" into something that sounded more impressive, but
nonetheless job duties, and not titles, are controlling in supei visory deter-
minations
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Meyers Industries, 268 NLRB 493 (1984), the Board
held, inter alia, that for an employee's activity to be con-
certed it must "be engaged in with or on the authority of
other employees, and not solely by and on behalf of the
employee himself."
In the first instance, Wantz discussed various questions
about the upcoming insurance matter with several em-
ployees both before and after the group meeting with
Robichaud on October 26. As indicated, although some
of the issues and insurance matters raised by Wantz per-
tained to his own individual medical problems, several
questions were raised on behalf of other employees.
Wantz' testimony that he discussed these issues with
other employees before and after the October 26 meeting
stands on the record unrefuted, and one example of a
question Wantz asked on behalf of other employees con-
cerned maternity benefits, as aforestated. Moreover, be-
cause of the phrasing that Wantz used in his questions,
and in his preface to his remarks, it must have been clear
to Respondent that Wantz was not acting merely on his
own behalf. It is obvious by this record that Respondent
was well aware that the insurance policy was a matter of
concern to other employees, and this is fully demonstrat-
ed by the fact that health insurance was raised at the first
meeting held with the company president on September
28, as previously mentioned herein, and the many other
questions which other employees had raised about the in-
surance policy. Respondent then invited the entire em-
ployee complement to the October 26 meeting with
Robert Robichaud to discuss the proposed policy. This
certainly again shows that Respondent was aware that
this matter was of common concern to employees. As
pointed out, Wantz' efforts to find out the exact provi-
sions in the insurance policy itself is certainly a reasona-
ble request when the employees were paying the premi-
ums out of their own money, and Wantz' request to ex-
amine the actual policy was part of a continuing effort to
answer questions for all employees.
In relation to whether Wantz was engaged in concert-
ed activity, his letter of November 3 must also be consid-
ered. Counsel for Respondent labels this document as a
belated and self-serving attempt to legitimize and protect
Wantz' prior acts, but without any manifestation by
other employees of their support, authorization, or ac-
ceptance of the Charging Party's actions, and is insuffi-
cient to establish concerted activity under the Meyers
standard. Moreover, maintains Respondent, the General
Counsel's failure to call those employees, for whom the
Charging Party allegedly acted, in order to substantiate
this integral element of his case, despite his authority to
subpoena them, casts considerable doubt as to whether
the Charging Party acted for anyone other than himself.
It appears to me that the letter here in question
amounts to considerably more than Respondent suggests.
As pointed out, at several different points in his letter,
Wantz indicates that he is complaining for himself and
others about the way the insurance matter had been han-
dled. For example, at the bottom of page one of the
letter, he states, "I requested to look over the plan in
detail on behalf of the group." Also on page three of the
letter Wantz further states, "At the meeting [of October
26] 1 spoke on behalf of the questions the personnel had
brought to my attention and not entirely all mine. I was
merely serving as a contact person representing Tecom
personnel." Later, on the same page, Wantz says, "[T]he
personnel brought some of their questions to me for pres-
entation. Since I was not qualified to answer them I di-
rected the questions to the Omaha representative at the
meeting so all could participate. . . . Many of the per-
sonnel felt I should do this for all to hear and understand
since the whole situation was not handled in a democrat-
ic manner."
I am also in agreement with the General Counsel that
the concerted nature of Wantz' activities was also dem-
onstrated to Respondent by the fact that another em-
ployee, one of the Mummer brothers, brought this letter
to the attention of Project Manager Robichaud in the
first quarter of November-before Wantz was terminat-
ed.6 Certainly, by bringing this letter to the attention of
Robichaud, employee Mummer was indicating to Re-
spondent that he too shared Wantz' concern over the in-
surance matter and especially so since the Mummer
brothers had also asked questions at the October 26
group meeting. It is, indeed, a reasonable inference that
under these particular circumstances it must have been
readily apparent to Robichaud that both Wantz and
Mummer once again shared joint concern about the way
the insurance arrangements had been handled and which
was then specifically expressed in the November 3 letter.
As indicated, this incident alone shows the concerted
nature of Wantz' activity and direct knowledge by Re-
spondent thereof.7
Turning to Respondent's final argument and position
that the termination of Wantz was not unlawfully moti-
vated, and to continue his employment would have re-
sulted in no reimbursement from the Government. Coun-
sel for Respondent points out that the U.S. Government,
not the Company, initiated discussions regarding new or
additional staffing at the Emmittsburg facility, and that
these discussions began prior to any concerted activity.
Moreover, contends Respondent, the Government's dis-
cussions regarding staffing changes, taken together with
the Company's own study of staffing needs, led it to the
inevitable conclusion that the work effort at the facility
could not justify a leadman such as Wantz, and if Tecom
had continued to employee Wantz in that position, this
would have been challenged, and thereby resulting in
Tecom's not being reimbursed for his salary, and by
6 Robichaud also admits that the letter here in question was in Re-
spondent's files and that he had read it.
4 The facts found herein are based on the record as a whole, and on
my observations of the witnesses The credibility resolutions herein have
been derived from a review of the entire testimonial record and exhibits with
due regard for the logic and probability, the demeanor of the witnesses, and
the teaching of NLRB v Walton Mfg Co, 369 US 404 (1962) Concern-
ing those witnesses testifying in contradiction of the findings herein, their
testimony has been discredited, either as having been in conflict with the
testimony of credible witnesses or because it was in and of itself incredi-
ble and unworthy of belief All testimony has been reviewed and weighed in
the light of the entire record. It appears to me that Wantz answered all
questions put to him in an honest and straightforward manner, and he
strikes me as a very direct and sincere person. On the other hand, it
seems to me that Shupe allowed his displeasure with Wantz to taint his
testimony somewhat. Robichaud's demeanor on the stand was equally as
evasive, and rather than recount the facts and events, Robichaud sought
to mainly justify his actions with conclusionary testimony
TECOM, INC. 299
eliminating the position on November 16, the Company
minimized the possibility of the Government disallowing
reimbursement for the Charging Party's salary.
When Project Manager Robichaud was asked why
Wantz was discharged, he replied:
A. Because his position was abolished from the
contract. It became apparent through dicussion with
the Government and through work load that we
could not nor would be able to justify the position.
The position was not an authorized position and we
did not envision ever being able to make it one,
therefore upon summation of our status reports and
progress reports to the Government we took the
action of termination.
Q. Why didn't you put Mr. Wantz in another po-
sition?
A. Another position?
Q. Yes. You said you could not justify, you
didn't think you could justify this position that you
had him in. Why didn't you put him in another po-
sition?
A. Because we didn't have another position. The
contract specifically stated the requirements of the
personnel as well as the number of personnel and in
our informal discussions with the Government it
was apparent that we had two positions. One was
an electrician, and it became apparent that the elec-
trician's position was going to dissolve and be re-
placed with two laborers at some time. And that the
telephone repairman position was going to be con-
solidated, so it was very clear that the two positions
which we did have, that we could stretch-our
only justification for having him aboard was going
to be eliminated.
Q. Who discharged Mr. Wantz?
A. I did.
Q. Who made the decision?
A. It was a corporate decision made by Bill
Place, vice president.
Q. He told you to discharge him?
A. Yes, sir.
Victor Buyny, chief of the procurement branch with
N.E.T.C., testified that after the contract with Tecom
became effective on October 1, he had discussions with
Robichaud in early November relative to modifying the
contract-that certain pieces of equipment had been
omitted and that by adding such equipment Tecom
would most likely have to hire a senior electronic techni-
cian. Buyny stated that the first modification was effec-
tive February 1, 1985, but admitted that there was no
connection between the termination of Wantz and the
adding of this additional new position. Buyny also testi-
fied that the position of group leader or section leader
was not a classification or category in the contract with
Respondent, but that it was not unusual for a new con-
tractor (Tecom) to initially create classifications or to use
"a little flexibility" in ascertaining what is suitable under
his contract, but the Government would question why
the category was established and disallow the costs asso-
ciated with it and the contractor would then have to
assume the costs. However, Buyny admitted that he
never challenged Tecom on their assigning Wantz to the
position of group section leader.
Buyny also testified that a telephone repairman had
been called for in the primary or initial contract with
Respondent, but this position was deleted in the contract
change order and senior electronic technician was added
as was the hours for laborers-they were increased from
8320 to 11,094 hours.
In the final analysis, Respondent argues that the Gov-
ernment's anticipated change in the contract and the
Company's ongoing review of its staffing needs would
have occurred absent the Charging Party's allegedly en-
gaging in concerted activity and similarly, it would have
abolished the position absent his engaging in that activity
and, accordingly, the Company has met its burden as set
forth in Wright Line, 251 NLRB 1083 (11980).
Counsel for Respondent also noted the General Coun-
sel's assertion to the effect that the Company could have
placed the Charging Party into a laborer's job, making
less money, but doing about the same thing he was doing
before. However, according to Respondent, such an as-
sertion ignores the evidence which contrasted the Charg-
ing Party's job duties with those of the other laborers
and which highlighted Charging Party's physical limita-
tions.
In reaching and discussing 'these arguments by Re-
spondent, it should first be noted that Respondent's posi-
tion statement, dated December 1984 (G.C. Exh. 2),
claims that the Government's request that an additional
employee, a senior electronics technician, be hired to
service the additional equipment caused Wantz' dis-
charge." However, the first modification of the contract
was not effective until February 1, 1985, and this fact
shows that a substantial amount of time elapsed between
the time Wantz was discharged and the time when the
change was implemented, and is indicative that Wantz'
discharge was not connected to this change, but rather
Respondent seized such circumstances to justify dis-
charging Wantz. In fact, as pointed out, Respondent uni-
laterally decided to discharge Wantz, certainly the Gov-
ernment did not cause the discharge. Procurement Offi-
cer Victor Buyny testified that it was usual policy not to
alter contracts within 3 months of when they were origi-
nally awarded and this testimony by Buyny conflicts
with Respondent's position statement which indicates
that Wantz' discharge was caused by the Government,
rather than Respondent's own decision. Indeed, Victor
Buyny, who is very familiar with the Respondent's con-
tract at N.E.T.C., as well as the procedures to be fol-
lowed under such arrangements, testified that he could
see no connection between the discharge of Wantz and
the addition of the senior electronics technician, as afore-
stated. Moreover, at the time of his discharge, Wantz re-
quested that he be considered for reemployment in any
other job which might be available but, despite the fact
that Respondent had no problem with Wantz' work per-
formance and the fact that Wantz had 30 years of experi-
ence in the trade, Respondent summarily rejected his re-
8 See p. 4, G.C Exh 2
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quest to be reemployed in another job, based on the ar-
gument now that his health was not good enough.
If the real reason for the discharge was because
Wantz' position was not approved by the Government,
then, in all likelihood, Respondent would have requested
that the Government accept a modification and add his
position to the contract, but no such request was ever re-
ceived from Respondent. Moreover, if Respondent bore
no animus against Wantz, it certainly would have availed
itself of his years of experience and good work record by
reemploying him rather than hiring four or five new
people. 9
As previously indicated herein, Victor Buyny testified
that the senior electronic technical position was one
which was added to the contract, rather than a substitu-
tion for the job which Wantz had previously held, and if
Respondent was concerned about Wantz having an em-
ployee working for him making more than his hourly
wage, Respondent obviously could have had such em-
ployee report to Foreman John Trout, as is the case
presently. I am in agreement that there was no logical
mandate that Wantz be discharged so that Respondent
could hire a senior electronics technician.
In summary, the credited facts herein- reveal that Re-
spondent was displeased by Wantz' activity which is
clearly demonstrated by Robichaud's remarks on Octo-
ber 31-on this occasion, after Wantz had questioned
why employees could not have dental benefits and also
why he had to rewrite his check for those benefits-Ro-
bichaud then told him to either pack his things and hit
the road or rewrite his check. Robichaud at this time
also indicated that Wantz had caused two disturbances
over the insurance policy, and apparently the third dis-
turbance, i.e., his November 3 letter, caused the dis-
charge. The prior threat to discharge Wantz and the ref-
erence to the "disturbances" demonstrate again Respond-
ent's animosity towards Wantz' protected activities, and
Robichaud's threat to Wantz indicates that he was pre-
pared to discharge him if he did not cooperate with the
insurance arrangements as Robichaud envisioned it.
Moreover, the timing of Wantz' discharge, within days
of when he had delivered his letter to two of Respond-
ent's supervisors, clearly indicates that Wantz' efforts to
inspect the policy and his complaints about the proce-
dures and delays caused his termination. In light of the
foregoing, the General Counsel made out a prima facie
case and Respondent did not meet its Wright Line burden
of showing a nondiscriminatory reason for its action.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and that Respondent
take the affirmative action provided for in the Order
below, and which I find necessary to effectuate the poli-
cies of the Act.
Having found that Respondent discriminatorily termi-
nated John Wantz, I recommend that Respondent offer
him immediate and full reinstatement to his former or
s Robichaud admitted that after Wantz was terminated on November
16, Respondent hired four or five new people (laborers)
substantially equivalent position, without prejudice to se-
niority or their rights or privileges, and make him whole
for any loss of earnings he may have suffered by reason
of the discrimination against him, by payment of a sum
of money equal to that which he would have normally
earned from the date of Respondent's discrimination, less
net earnings during said period. All backpay provided
herein shall be computed with interest on a quarterly
basis, in the manner described by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest
thereon computed in the manner and amount prescribed
in Florida Steel Corp., 231 NLRB 651 (1977). See gener-
ally Isis Plumbing Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. John Wantz Jr. was engaged in protected concerted
activity during the incidents and time periods described
herein.
3. By engaging in conduct described in section III,
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edio
ORDER
The Respondent, Tecom, Inc., Emmittsburg, Mary-
land, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees and/or refusing to rehire
them because of their protected concerted activity.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer John Wantz Jr. immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
1 o If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
TECOM, INC.
Lion against him, in the manner set forth in the remedy
section of the decision.
(b) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at Emmittsburg , Maryland, copies of the at-
tached notice marked "Appendix."1 Copies of the
notice , on forms provided by the Regional Director for
Region 5, after being signed by the Respondent 's author-
ized representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced , or covered by
any other material.
(d) Remove from its files any reference to the unlaw-
fill discharge of John Wantz and notify him in writing
that this has been done and that the discharges will not
be used against him in any way.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
301
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT discharge , refuse to rehire, or otherwise
discriminate against our employees because of their con-
certed activity.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer John Wantz Jr. immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from his
discharge , less any net interim earnings , plus interest.
TECOM, INC.