Zapex Corp.

National Labor Relations Board - Board Decisions

May 1, 1978

235 N.L.R.B. 1237 (N.L.R.B. 1978)

ZAPEX CORPORATION
Zapex Corporation and International Brotherhood of
Electrical Workers, Local 2182, AFL-CIO
BDM Services Company; Zapex Corporation and
International Brotherhood of Electrical Workers,
Local 2182, AFL-CIO and William C. Rudd.
Cases 32-CA-43 (formerly 20-CA-10477), 32-
CA-46 (formerly 20-CA-10592), and 32-CA-51
(formerly 20-CA-10734)
May 1, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 24, 1977, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondents filed
cross-exceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith and to
adopt his recommended Order, as modified herein.
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent violated
Section 8(a)(3) and (1) of the Act by failing and
refusing to reinstate economic strikers David Spear
and William Rudd, Jr., when work for which each
was qualified became available, after each had
unconditionally requested reinstatement.
Contrary to the Administrative Law Judge, how-
ever, we find, for the reasons set forth below, that
Respondents discriminated against economic strikers
Russell Sharon, Craig Shields, Robert Salczynski,
William Horrell, Clyde Varney, Clyde Hadveck,
Robert Barela, Luther Briggs, G. Y. Mak, Boyd
I Respondent's request for oral argument is hereby denied as, in our
opinion, the record in this case, including the exceptions and briefs,
adequately presents the issues and positions of the parties.
2 we do not adopt the Administrative Law Judge's finding that Lambert,
who the Union claimed was a striker, resigned on July 10. 1975, as such
finding is not in our view supported by the record. In the absence of
exceptions, we adopt the Administrative Law Judge's findings concerning
Rouillard and Slauson.
3 All dates are 1975, unless otherwise specified.
4 Zapex Corporation and BDMSC, herein called Respondents, are
wholly owned subsidiaries of BDM Corporation. As the Administrative Law
Judge found, Respondents constitute a single integrated business enterprise
with common ownership and common control being exercised over labor
relations policy.
5 As set forth by the Administrative Law Judge at fn. 3:
Lester, Lawrence Gibb, and Gerald Schmidt by
failing to reinstate them immediately following their
unconditional offers to return.
The Combat Development Experimentation Com-
mand (CDEC) is a component of the United States
Army located at Fort Ord and Fort Hunter Liggett in
Monterey County, California. Prior to July 1975,
CDEC utilized two private contractors, Bell Aero-
space Corporation (Bell) and BDM Services Compa-
ny (BDMSC), a subsidiary of BDM Corporation.
Bell performed maintenance work for CDEC and
BDMSC provided CDEC with scientific and techni-
cal support. In June 1975,3 BDMSC was awarded the
contract to perform both the scientific and technical
support work and the maintenance work then being
performed by Bell. BDMSC subcontracted the main-
tenance work to the Zapex Corporation, which was
formed expressly for the purpose of performing the
work formerly done by Bell.4 Because the Army
desired to minimize disruption of programs already
in progress, the contract provided for a "Phase-In,
Phase-Out" (PIPO) program whereby it was agreed
that certain systems would be taken over by Respon-
dents on various dates. As scheduled, on July 1,
Respondents began performance of the contract and
Bell continued its performance on an interim basis
under the PIPO plan.
On July 7, the Union commenced an economic
strike against Respondents. Employees of both Re-
spondents and Bell participated in the strike.5 The
absence of the striking employees resulted in delays
in staffing, a disruption in the PIPO program, and a
lack of maintenance service by Bell employees
during the transition period. On July 24, Respon-
dents received from the Army a "cure" letter regard-
ing the "inadequate" level of support provided by
Respondents. The letter set forth performance defi-
ciencies, most of which related to areas of work
which persons on strike had been assigned to
perform. On August 8, Respondents replied, attribut-
ing the "alleged deficiencies" to the strike and
assuring the Army that Respondents would attempt
Bell ard the Union were parties to a collective-bargaining agree-
ment covering certain of the Bell employees, which agreement con-
tained a union-security clause. Also pending before the Board was a
petition filed by the Union in Case 20-RC-11950, wherein the Board,
on June 30, issued a Decision and Direction of Election, reported at 218
NLRB 1191, in a unit of all senior engineers, senior associate engineers,
engineers, associate engineers, senior scientific programmers, scientific
programmers, system programmers, programmers, programmers ana-
lysts, and associate programmers employed by BDM Services Compa-
ny in its engineering department in and around Fort Ord, California,
including Hunter Liggett Military Reservation, including group leaders,
but excluding office clerical employees, guards, all other employees,
and supervisors as defined in the Act. At the time of the strike, that
election had not yet been held.
235 NLRB No. 165
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to hire competent personnel to perform work re-
quired under the contract. 6 The strike ended on
August 29, 1975, and between August 28 and
September 3 all the above-named former strikers
made unconditional offers to return to work.7 Re-
spondents subsequently offered reinstatement to the
strikers on various dates between October 9, 1975,
and April 5, 1976. 8
In concluding that Respondents did not violate
Section 8(a)(3) and (I) of the Act by failing and
refusing to reinstate the striking employees upon
their unconditional requests for reinstatement, the
Administrative Law Judge apparently assumed that
they had been permanently replaced and also con-
cluded that they were timely offered reinstatement as
positions became available for them. The General
Counsel contends that the Administrative Law Judge
did not specifically find that the striking employees
were permanently replaced and, to the contrary, that
he erred in failing to find that they were not
permanently replaced. Specifically, the General
Counsel asserts that the Administrative Law Judge
misapplied the law in failing to place on Respondents
the burden of proving that striking employees were
permanently replaced or that Respondents' refusal to
reinstate them was occasioned by other legitimate
and substantial business justification; that, accord-
ingly, the Administrative Law Judge erred by failing
to find that Respondents had not met their burdens;
that he erred in ignoring or giving insufficient weight
to admissions by Respondents' agents to the effect
that striker replacements were temporary replace-
ments; and that he erred in failing to draw an
adverse inference from Respondents' refusal to pro-
duce subpenaed records concerning temporary strik-
er replacements. Moreover, the General Counsel
contends that the Administrative Law Judge erred by
misconstruing or giving insufficient weight to affir-
mative evidence that Respondents were actively
recruiting new employees for jobs which former
striking employees were qualified to perform, at a
time when the former striking employees' applica-
tions for reinstatement were outstanding. We find
merit in the General Counsel's contentions and, for
the reasons more fully detailed below, we conclude
that Respondents violated Section 8(a)(3) and (1) by
failing and refusing to reinstate the striking employ-
ees upon their unconditional requests for reinstate-
ment.
6 Shortly thereafter, Respondents' personnel needs additionally in-
creased because the Army, by August 20, had substantially added to
Respondents' workload for the I-year agreement. As discussed by the
Administrative Law Judge, Respondents thus began discussions with CDEC
in August, which subsequently resulted in a contract modification increas-
ing Respondents' staffing by 19 persons.
I The dates of the former stinkers' unconditional offers to return to work
were: August 28, 1975: Schmidt: August 29: Barela, Bnggs, Horrell, Lester,
Certain principles governing the reinstatement
rights of economic strikers are by now well settled. In
N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375,
378 (1967), the Supreme Court held that if, after
conclusion of a strike, the employer "refuses to
reinstate striking employees, the effect is to discour-
age employees from exercising their rights to orga-
nize and to strike guaranteed by [Sections] 7 and 13
of the Act .... Accordingly, unless the employer
who refuses to reinstate strikers can show that his
action was due to 'legitimate and substantial business
justifications,' he is guilty of an unfair labor practice.
The burden of prbvingjustification is on the employ-
er." The Court in Fleetwood relied on its decision in
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34
(1967), where it held that "once it has been proved
that the employer engaged in discriminatory conduct
which could have adversely affected employee rights
to some extent, the burden is upon the employer to
establish that he was motivated by legitimate objec-
tives since proof of motivation is most accessible to
him." In reevaluating the rights of economic strikers
in light of Fleetwood and Great Dane, the Board in
The Laidlaw Corporation, 171 NLRB 1366, 1369
(1968), stated that:
The underlying principle in both Fleetwood and
Great Dane, supra, is that certain employer con-
duct, standing alone, is so inherently destructive
of employee rights that evidence of specific
antiunion motivation is not needed.14 Specifically
in Fleetwood, the Court found that hiring new
employees in the face of outstanding applications
for reinstatement from striking employees is
presumptively a violation of the Act, irrespective
of intent unless the employer sustains his burden
by showing legitimate and substantial reasons for
his failure to hire the strikers.
14 See also N.LR.B. v. Erie Resistor Corp., 373 U.S. 221 (1963).
Even if a finding of antiunion motivation is necessary, the employer's
preference for strangers over tested and competent employees is
sufficient basis for inferring such motive, and we, in agreement with the
Trial Examiner, would do so ifwe considered motive material.
Here the General Counsel has met his burden by
establishing that the alleged discriminatees were
former striking employees who subsequently made
unconditional offers to return to work, and that
Respondents, by failing to reinstate such employees,
"engaged in discriminatory conduct which could
Salczynski, Shields. and Varney; September 2: Mak and Sharon; September
3: Gibb and Hadveck. Additionally, on September 3, the Union also made
an unconditional offer to return on behalf of the strikers.
s The mailing dates of Respondents' letters offering reinstatement were
as follows: October 9, 1975: Barela and Hadveck; October 10: Varney;
November 10: Mak; November 28: Lester; February 4, 1976: Bnggs;
February 10: Gibb; February I1: Horrell; February 17: Salczynski;
February 19: Shields; February 23: Sharon; April 5: Schmidt.
1238
ZAPEX CORPORATION
have adversely affected employee rights to some
extent." On the basis of the record before us, we
conclude that Respondents have not met their
burdens. Thus Respondents did not establish that
striking employees had been permanently replaced or
that Respondents' refusal to reinstate the strikers was
motivated by other legitimate and substantial busi-
ness justifications. The Administrative Law Judge
did not find that Respondents had permanently
replaced the strikers when they unconditionally
sought to return to work. And, in our view, a
preponderance of the record evidence would not
support such a finding. 9 Rather, the record discloses
that Respondents utilized temporary replacements.
Captain Sam Slusser, the Army's contracting officer's
representative, testified without contradiction that
Dr. Daniel McDonald, Respondent's part-owner and
chief executive, told him (Slusser) that the replace-
ments were only temporary, and that the strikers
would be returned to their positions at the end of the
strike. In addition, various officials of Respondents,
including Vice President Richard Cline, admitted
that Respondents utilized temporary replacements,
drawn from other facilities of Respondents.'o Nor is
there evidence establishing that the temporary re-
placements had themselves been replaced prior to the
strikers' offers to return to work.
Moreover, the General Counsel subpenaed, inter
alia, the personnel files of Respondents' employees
allegedly brought in to replace the strikers. The
Administrative Law Judge properly denied Respon-
dents' motion to revoke this subpena. Respondents,
however, failed to fully comply with the subpena's
terms. Thus, two of Respondents' witnesses, Donna
Bakken, a secretary who prepared the files which
were brought to the hearing, and Respondents' vice
president, Richard Cline, admitted that the files of
the temporary replacements were not produced as
required by the subpena. Bakken testified that, while
the temporary employees utilized were employed by
Respondent BDM, only Zapex personnel files were
produced. Thus, Respondents failed to produce the
very documents relevant to their asserted defense.
g Respondents contend that their personnel practices, including a
"matrix" system of assigning employees to tasks as needed, make it
"impossible" for them to come forward with a list of permanent replace-
ments for the strikers. We find this reasoning unpersuasive. Neither the
matrix system nor any other personnel practice relieves Respondents of
their burden ofclearly establishing that the alleged discriminatees had been
permanently replaced as of the dates of their unconditional offers to return
to work.
10 In Respondents' August 8 letter to the Army, Vice President Hofer
also stated that "BDM management personnel with special experience-
have been assigned as acting project engineers. They are providing interim
services .... "
11 Welcome-American Fertilizer Co., 169 NLRB 862, 870 (1968); Mallory
Capacitor Company, A Division of P R. Mallory a Co., Inc., 169 NLRB 42
(1968).
The Board11 and the courts2 have long observed
the adverse inference rule, which one court at least
has characterized as "more a product of common
sense than of the common law."13 "Simply stated,
the rule provides that when a party has relevant
evidence within his control which he fails to produce,
that failure gives rise to an adverse inference that the
evidence is unfavorable to him."14 Accordingly, in
considering Respondents' failure to produce the
relevant personnel records (of striker replacements)
subpenaed by the General Counsel, we infer that the
records, if produced, would not have shown that the
replacements were permanent. Our conclusion with
regard to this issue is further supported by the
testimony, noted above, that Respondents in fact
utilized temporary replacements for striking employ-
ees, and by Captain Slusser's testimony that he was
informed by Respondents' chief executive that the
replacements were only temporary and the strikers
would be returned to their positions at the end of the
strike.
Finally, we note that after the striking employees
unconditionally offered to return to work in late
August, but before Respondents began offering
reinstatement in October, Respondents actively re-
cruited new employees for positions which former
striking employees were qualified to fill. This recruit-
ment campaign was reflected by newspaper adver-
tisements. The Administrative Law Judge found that
these advertisements did not reflect actual job
openings, but were merely a part of Respondents'
ongoing general recruitment campaign. We disagree
for the following reasons. First, Respondents' general
recruitment advertisements appeared in college and
university newspapers, while the advertisements here
in question appeared only in newspapers of general
circulation. Second, unlike general recruitment ad-
vertisements, these advertisements referred to "im-
mediate" openings with the Zapex Corporation in
south Monterey County where Fort Ord and Fort
Hunter Liggett are located. (Respondents did not
contend that they were performing services at any
other facility in south Monterey at this time.) Third,
there were pronounced differences in form and
12 Interstate Circuit Inc. v. U.S., 306 U.S. 208, 226 (1939). There the
Supreme Court observed that, "The production of weak evidence when
strong is available can lead only to the conclusion that the strong would
have been adverse." Furthermore, the courts have consistently upheld the
Board when it has drawn an adverse inference from the nonproduction of
relevant evidence. See, e.g., N. LR.B. v. A. P. W. Products Co., 316 F.2d 899,
903-904 (C.A. 2, 1963); N.LR.B. v. Sam Wallick and Sam K. Schwalm,
d/b/a Wallick and Schwalm Company, 198 F.2d 477, 483 (C.A. 3, 1952);
N.LRB. v. Remington Ran4 Inc., 94 F.2d 862, 868 (C.A. 2, 1938), cert.
denied 304 U.S. 576 (1938).
13 International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW v. N.LR.B., 459 F.2d 1329, 1335
(C.A.D.C., 1972).
14 Id at 1336.
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
content between the general recruitment advertise-
ments and those announcing "immediate" openings.
Finally, and most significantly, F. N. Hofer, a vice
president of Respondents, testified that the "immedi-
ate requirements" advertisements were billed to the
Army as a cost of performance of their contract with
the Army, and that billing these advertisements to
the Army if Respondents did not intend to utilize the
applicants for work under the contract would have
been improper. Accordingly, we find that these
advertisements evidence the availability of jobs
which former striking employees were qualified to
perform and Respondents' attempts to place new
employees in these jobs at a time when striking
employees' requests for reinstatements were out-
standing.
In summary, we find that the Administrative Law
Judge: (I) erred in not placing upon Respondents
their burden of proving that the strikers had been
permanently replaced; (2) ignored, or gave insuffi-
cient weight to, admissions in the record that
Respondents utilized temporary replacements for the
strikers; (3) improperly failed to draw an adverse
inference from Respondents' failure to produce
subpenaed records regarding striker replacements;
and (4) analyzed incorrectly and gave insufficient
weight to evidence that Respondents advertised
immediate job openings in positions for which
former strikers were qualified. In view of the above,
we find the Administrative Law Judge's conclusion
that Respondents did not discriminate against the 12
former strikers when Respondents failed to reinstate
them reflects a misapplication of the law 15 and is not
supported by the record.
Accordingly, we conclude that Respondents have
not established that their failure to reinstate the 12
former strikers when the latter made their uncondi-
tional offers to return to work was justified by
legitimate and substantial business justifications,
and, therefore, that Respondents' failure to reinstate
those strikers constituted unlawful discrimination
under Section 8(a)(3) and (1) of the Act.16 We shall,
therefore, order that Respondents make Russell
Sharon, Craig Shields, Robert Salczynski, William
Horrell, Clyde Varney, Clyde Hadveck, Robert
Barela, Luther Briggs, G. Y. Mak, Boyd Lester,
Lawrence Gibb, and Gerald Schmidt, as well as
David Spear and William Rudd, Jr., whole for any
1s We are guided by the Court's ruling in N.L.R.B. v. Fleetwood Trailers,
supra, in concluding that Respondents' failure to establish legitimate and
substantial business justifications renders it unnecessary to consider evi-
dence of union animus. For this reason the Administrative Law Judge's
reliance on "the lack of probative evidence of union animus" is misplaced.
i8 The General Counsel further contended that the former strikers were
in any event qualified for, and should have been reinstated to, certain
positions which became vacant via resignations and which Respondents
filled with new hires. In view of our finding here that the 12 strikers were
loss of earnings they may have suffered by reason of
Respondents' failure to immediately reinstate them
upon application. Furthermore, inasmuch as Re-
spondents here have committed violations which go
to the very heart of the Act, we shall further modify
the recommended Order of the Administrative Law
Judge to require that Respondents cease and desist
from in any other manner infringing upon the rights
guaranteed to employees by Section 7 of the Act.17
CONCLUSIONS OF LAW
1. Respondents are each employers engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing to immediately rein-
state economic strikers David Spear, William Rudd,
Jr., Russell Sharon, Craig Shields, Robert Salczynski,
William Horrell, Clyde Varney, Clyde Hadveck,
Robert Barela, Luther Briggs, G. Y. Mak, Boyd
Lester, Lawrence Gibb, and Gerald Schmidt upon
their unconditional requests for reinstatement, there-
by discouraging membership in the Union, Respon-
dents have violated Section 8(a)(3) of the Act.
4. By the foregoing conduct Respondents inter-
fered with, restrained, and coerced employees in the
exercise of rights guaranteed to them by Section 7 of
the Act, in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dents, BDM Services Company and Zapex Corpora-
tion, Fort Ord and Fort Hunter Liggett, California,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act."
unlawfully denied immediate reinstatement upon their unconditional offers
to return to work, we find it unnecessary to pass upon these contentions of
the General Counsel. We similarly find it unnecessary to pass upon
exceptions to the Administrative Law Judge's interpretation or application
of New Era Electric Cooperative, Inc., 217 NLRB 477 (1975).
17 See N. LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941);
Electrical Fittings Corporation, a subsidiary of l-T-E Imperial Corporation,
216 NLRB 1076 (1975).
1240
ZAPEX CORPORATION
2. Substitute the following for paragraph 2(a):
"(a) Make David Spear, William Rudd, Jr., Russell
Sharon, Craig Shields, Robert Salczynski, William
Horrell, Clyde Varney, Clyde Hadveck, Robert
Barela, Luther Briggs, G. Y. Mak, Boyd Lester,
Lawrence Gibb, and Gerald Schmidt whole for any
loss of earnings they may have suffered by reason of
Respondents' failure to immediately reinstate them
upon application. Loss of earnings, as referred to
above, shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), and
with interest as provided in Florida Steel Corporation,
231 NLRB 651 (1977). See, generally, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962)."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to reinstate econom-
ic strikers who have unconditionally requested
reinstatement when work for which they are
qualified becomes available.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL make David Spear, William Rudd,
Jr., Russell Sharon, Craig Shields, Robert Sal-
czynski, William Horrell, Clyde Varney, Clyde
Hadveck, Robert Barela, Luther Briggs, G. Y.
Mak, Boyd Lester, Lawrence Gibb, and Gerald
Schmidt whole for any loss of earnings they may
have suffered because of our discrimination
against them by payment to each of them a sum
of money equal to that which they normally
would have earned until the dates on which we
made a valid offer of reinstatement, with interest.
BDM SERVICES
COMPANY
ZAPEX CORPORATION
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: These cases
were heard before me in Monterey and Fort Ord, Califor-
nia, on various dates between April 13 and June 25, 1976.
The consolidated complaint, subsequently amended, was
I Respondents contend that their operations are so "intimately related"
with the United States Army that they share the Army's statutory exemption
issued on January 26, 1976, pursuant to charges initially
filed in the three cases on August I, September 9, and
October 21, 1975. The consolidated complaint, as amend-
ed, alleges Respondents threatened to withdraw a job offer
if a prospective employee honored the Union's picket line;
interrogated a prospective employee regarding his support
for the Union; refused to hire a job applicant because of
his activities on behalf of the Union or because of other
protected concerted activities; and refused to reinstate 15
employees because they had participated in an economic
strike against Respondents. Respondents contend that the
Board's Decision reported at 218 NLRB 1191, wherein the
Board asserted jurisdiction over the operations of BDM
Services Company, was wrongly decided and, in addition
to contending the Board lacks jurisdiction over their
operations, Respondents deny the commission of the
alleged unfair labor practices. All parties were afforded full
opportunity to appear, to introduce evidence, and to
examine and cross-examine witnesses. Extensive briefs
were filed by the General Counsel and Respondents and
have been carefully considered.
Upon the entire record in the cases, and from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint, as amended, alleges and Respondents
admit that BDM Corporation, a Delaware corporation
with its principal office located in Vienna, Virginia, is
engaged in the business of providing scientific and engi-
neering support to the United States Army and other
Government agencies. Zapex Corporation and BDM Ser-
vices Company, herein called Respondents, are wholly
owned subsidiaries of BDM Corporation, and are engaged
in the business of providing engineering support and
instrumentation maintenance, and scientific engineering
and experimentation support, respectively, to the United
States Army. Respondents constitute a single integrated
business enterprise with common ownership, and common
control being exercised over labor relations policy. During
the most recent calendar year, each Respondent provided
services in excess of $500,000 to the United States Army
and other Government agencies. In light of the foregoing
and the Board's Decision in BDM Services Company, supra,
issued June 30, 1975, wherein jurisdiction was asserted over
BDM Services Company, it is found that each of the
Respondents is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
2182, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
under Sec. 2(2) of the Act. That issue was considered and rejected by the
Board in the BDM Services Company case. I am bound by that Decision.
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1ll. THE ISSUES
I. Whether, on or about July 14, 1975,2 Respondents
threatened to withdraw a job offer from Russell L. Sharon
if he honored the Union's picket line.
2. Whether, on or about July 28, Respondents interro-
gated Vernon H. Rouillard, a prospective employee,
regarding his support for the Union, and refused to hire
him because of his past activities on behalf of the Union.
3. Whether, since on or about September 2, the Re-
spondents refused to reinstate 15 strikers because of their
support for the Union, or because of other protected
concerted activities.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
For a number of years BDM Services Company has been
engaged in providing scientific and technical support for
the Combat Development Experimentation Command,
herein called CDEC, a component of the United States
Army, at Fort Ord and Fort Hunter Liggett, California.
Prior to July 1975 Bell Aerospace Corporation, herein
called Bell, performed the maintenance work associated
with the experimentation conducted by CDEC. In late
1974, the Army distributed a Request For Proposal (RFP)
among several contractors, including BDM Services Com-
pany, and, in June, BDM Services Company was awarded
the contract to perform both the scientific and technical
support work which it had formerly done, and the
maintenance work associated with experimentation then
being performed by Bell. Performance under the new
contract was to commence on July I and was for a i-year
term with renewal provisions. BDM Services Company
subcontracted the maintenance work to Zapex Corpora-
tion, which was formed expressly for the purpose of
performing the work formerly done by Bell. The agreement
between BDM Services Company and the Army provided
that the contractor provide, "on an as needed basis," all
manner of scientific and technical abilities inherent in the
contractors' organization. In the operation of the Scientific
Support Laboratory (SSL), the contractor was required to
furnish a minimum of 180 direct labor manyears (2,160
manmonths), and 16 manyears (192 manmonths) of indi-
rect labor. Respondents agreed to have 203 employees
available if needed for performance of the contract. It does
not appear, however, that Respondents were required to
maintain a definitive number of employees at all times. The
contract specified $2,978,763 as the maximum total cost
which could be expended in the performance of the
contract, and that the contractor was to receive a base fee
of 1.6 percent or $47,113, together with an award fee based
2 All dates herein are in 1975 unless otherwise stated.
3 Bell and the Union were parties to a collective-bargaining agreement
covering certain of the Bell employees, which agreement contained a union-
security clause. Also pending before the Board was a petition filed by the
Union in Case 20-RC-1 1950, wherein the Board, on June 30, issued a
Decision and Direction of Election, reported at 218 NLRB 1191, in a unit of
all senior engineers, senior associate engineers, engineers, associate engi-
neers, senior scientific programmers, scientific programmers, system pro-
grammers, programmers, programmers analysts, and associate programmers
employed by BDM Services Company in its engineering department in and
around Fort Ord, California, including Hunter Liggett Military Reservation.
on quarterly evaluations of the contractor's performance
by a CDEC Performance Evaluation Board (PEB). The
PEB awards the contractor a score based on performance
within the previous contract quarter, which determines the
portion of the award fee for that quarter. The total
maximum award fee was limited to 7.6 percent, or
$223,787.
In addition to assuming all maintenance functions
formerly performed by Bell employees, Zapex assumed
many of the engineering functions performed by BDM
Services Company under the earlier contract. Approxi-
mately 120 of the 180 direct manyears provided for in the
contract were allocated to Zapex for operation of the
Instrumentation Support Department (ISD).
Respondents were scheduled to commence performance
under the contract on July I and, as the Army desired to
minimize disruption in the programs already in progress,
the contract provided for a Phase-In, Phase-Out (PIPO)
program whereby Respondents would be staffed 50 percent
on July 1, 85 percent by July 15, and 100 percent by July
30. To accomplish this, it was agreed that certain systems
would be taken over by Respondents on various dates.
As scheduled, Respondents commenced performance of
the contract on July 1. On July 7, the Union commenced
an economic strike against Respondents. Both Respon-
dents' employees and those employed by Bell participated
in the strike.3 Initially approximately 25 individuals em-
ployed by Respondents, and approximately 50 employed
by Bell, participated in the strike. During the second week
of the strike approximately 34 of Respondents' employees
participated, including approximately 21 engineers and
associate engineers and 13 maintenance personnel. While
Respondents thought at first that the strike would be of
short duration, 5 engineers and 12 technicians were
transferred from other BDM offices within a week of the
commencement of the strike, some permanently and others
for 2- to 3-week periods until permanent replacement
personnel arrived. In addition, a special staff was organized
by the manager of corporate services who was transferred
from Virginia to Fort Ord for the purpose of hiring
replacement personnel. The absence of the Bell striking
employees resulted not only in delays in staffing by
Respondents, but also a disruption in the PIPO program
and a lack of maintenance services by Bell employees
during the transition period. Consequently, Respondents
were required to assume maintenance functions over
equipment with which they were not familiar. One such
item of equipment was the GE 605 computer, which
appears to have been a unique piece of equipment which
was vital to the operation of certain CDEC experiments. 4
On July 24 the contracting officer for the Sacramento
Army Procurement Depot (SAAD) wrote BDM Services
including group leaders, but excluding office clerical employees, guards, all
other employees, and supervisors as defined in the Act. At the time of the
strike, that election had not yet been held.
I Before, during, and following the strike, Respondents engaged in an
extensive advertising campaign for employees in numerous engineering,
craft, and technical catagonries, stating in some of the ads that there were
immediate openings. The vice president of management sciences and
administration, F. N. Hofer, testified that, with the commencement of the
strike, Respondents embarked on a campaign to replace the strikers, which
included advertising which was handled by a firm located in Washington,
D.C. He further testified that sales have increased from 20 to 30 percent per
1242
ZAPEX CORPORATION
Company a "cure" letter regarding the "inadequate" level
of support provided by the Respondents under the con-
tract.5 On August 8, Hofer responded to the "cure" letter,
attributing the "alleged deficiencies" to the "strike being
conducted against us by the International Brotherhood of
Electrical Workers, (IBEW) and other factors which are
not under our control. Therefore, under the specific terms
of the contract, we cannot be held to be in default ... ."
The letter outlines the strike activities, the legal steps taken
by Respondents as a result of the strike, the difficulty in
recruiting replacements, and the disruption in the PIPO
program due to the absence of striking Bell employees, and
recites that full staffing would be accomplished by August
22. By letter dated October 16, the contracting officer
advised BDM Services Company that "it has been deter-
mined that BDMSC has an excusable delay in performance
from 7 July 1975 through 29 August 1975," the date the
strike ended. 6
The record shows that, at the time BDM Services
Company made its proposal resulting in the award of the
contract, it was contemplated that the Army would
perform two major and four minor experiments. However,
by mid-August, approximately eight experiments were
listed in CDEC's experimentation schedule, at least three
of which were considered major experiments, and word
had been received that a ninth experiment was in the
offing. Having become concerned with the increase in
"tasking" which the Army was asking, and faced with the
cost limitations in section 7-203.3(b) of the ASPR, Respon-
dents concluded that, despite the fact they were overstaffed
in certain areas, a potentially serious personnel shortage
existed. Accordingly, in August Respondents entered into
discussions with CDEC regarding projections and the
necessity of increasing the size of the work force.7 On
December 18, Respondents presented a plan to CDEC's
Commanding General requesting authorization for addi-
tional resources. Toward the end of the month, pursuant to
a CDEC request, BDM Services Company submitted a
technical and cost proposal to the contracting officer,
proposing an increased staffing of 19 positions for the
remainder of the contract period. On February 1, 1976, the
contract was modified by increasing Respondents' staffing
size by 19 at a total increase in cost of $150,000.8
Immediately thereafter, Respondents surveyed their
manpower needs and hired additional personnel, including
all but one of the strikers who had not yet been reinstated.
year over the last 4 or 5 years, and the parent company writes from 20 to 30
job proposals per month. To meet the manpower needs that may result from
new contracts, a continuing recruiting campaign is carried on which
includes interviewing new graduates from universities across the country,
and advertisements in local newspapers and trade and professional journals.
He testified that, without a reservoir of resumes, the Company would be
unable to meet manpower demands in a hurry in the event of a new
contract. Associate Administrative Manager Phillips testified that from
September 1 through January 1, 1976, Zapex received in excess of 650
resumes, over 500 from engineers and electronics technicians. While the
placement of the ads may be one factor to consider in determining whether
or not job openings exist, better proof lies in the records which reflect the
actual openings and hires. Upon the evidence which follows, I am convinced
the ads do not in fact reflect actual job openings, but were made in the
course of an extensive advertising campaign for the purposes set forth
immediately above.
s Armed Services Procurement Regulations (ASPR 7 203.10) provide for
the termination of contracts by the Government "whenever the contractor
B. Alleged Threat To Withdraw Job Offer if
Russell Sharon Honored Picket Line
Paragraph VII(A) of the consolidated complaint alleges
in substance that, on or about July 14, Roger Dupere,
Respondents' range maintenance coordinator and an ad-
mitted agent and supervisor, threatened to withdraw a job
offer if Russell Sharon honored the Union's picket line.
Sharon was employed by Bell as an electronic technician
from July 1972 until noon on July 14, 1975. The last 5
months of employment with Bell were as range measuring
system (RMS) supervisor. In the latter part of June, Sharon
filled out an application for employment with Zapex, and
gave that and a copy of his resume to Range Maintenance
Coordinator Dupere9 during an interview lasting approxi-
mately 5 minutes. Two or three days later, Sharon received
a job offer as an electronic technician with Zapex at $4.94
per hour, commencing July 14. While he accepted the job,
he apparently expressed some dissatisfaction with the
wages. On July 13, Dupere called Sharon and offered him a
job as an associate engineer at $1,100 per month commenc-
ing the following day. Sharon accepted the offer. Sharon
testified that, during the morning on July 14, he talked to
Jerry Littou, Respondents' manager of planning, control,
and administration, and asked if he could get the job offer
changed to another month because his "boss" at Bell had
asked if he would work until the end of the month. Littou's
response, according to Sharon, was that he wanted Sharon
to start work that day. Sharon then testified that about
noon he talked to Ron Feliciano, a Zapex employee, "and
told him I was going to leave and he told me not to talk to
him, to talk to Dupere, which I did." His account of the
conversation with Dupere, with Feliciano standing about 2
or 3 feet away, was "I just told Mr. Dupere that I was
unemployed . . . [and] he told me that if I left he would
rescind my offer of employment." He testified the conver-
sation took place at the back door of the maintenance
room at Hunter Liggett. In an investigatory affidavit given
an agent of the Board on September 18, Sharon stated,
I spoke with Roger Dupere in my work area. I spoke to
him in the presence of Ron Feliciano, an employee of
Zapex. They were just walking by near where I worked
and I walked up to them at about I p.m. and told them
I was going to honor the picket line. Dupere said if I
did he would rescind his offer. I said I still would honor
shall default in performance of [the] contract in accordance with its terms
... and shall fail to cure such default within a period of 10 days (or such
longer periods as the contracting officer may allow) after receipt from the
contracting officer of a notice specifying default."
6 Par. VI of the consolidated complaint alleges, and Respondents admit.
that between on or about July 7 and August 29 certain employees of
Respondents engaged in an economic strike. The record shows that a
number of the alleged discriminatees made individual offers to return to
work within a few days following the end of the strike, and on September 3
the Union made an unconditional offer to return on behalf of all alleged
discrinminatees except Rouillard.
7 Authority to increase the estimated cost of the contract rested solely
with the contracting officer at the Sacramento Army Procurement Depot.
8 Stalling level was increased in the following personnel catagories:
engineering from 34 to 45; maintenance from 62 to 67; technical services
from 13 to 16.
9 It was admitted that Dupere was a supervisor and agent of Respon-
dents.
1243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the picket line. That's about all that was said and they
walked away.
Dupere, who no longer works for or is associated with
Respondents, denied that he told Sharon if he honored the
picket line or went on strike that he would rescind the job
offer. He testified that on July 14 he talked to Sharon
several times, the first at or about 7:30 a.m. when he asked
Sharon if he was ready to come to work for Zapex.
Sharon's response was in the negative, that he wanted to
talk to Warren Hurst, his supervisor at Bell, first. About
midmorning, according to Dupere, he saw Sharon again
and asked if he was ready to come to work. Sharon again
replied in the negative, that he still had not seen Hurst.
About noon, Feliciano told Dupere that Sharon wanted to
talk to him. Dupere's account of the conversation was, "So
I went over to the IMO building and asked Russ what he
wanted. And he told me . . . that he wouldn't come to
work for us. And he made a statement that those were his
friends out there on the picket line and he couldn't cross
the picket line. I told him I understood, I appreciated his
position. And we terminated the conversation." Feliciano
denied Dupere told Sharon that any job offer would be
revoked or withdrawn if Sharon honored the picket line or
went on strike or that he was present when the picket line
was discussed.
On the basis of the foregoing testimony, and my
evaluation of the witnesses as they testified, I conclude and
find that Dupere did not, as alleged, threaten to withdraw
the job offer if Sharon honored the picket line. Sharon's
testimony on the witness stand seems improbable - "I just
told Mr. Dupere that I was unemployed. . . [and] he told
me that if I left he would rescind my offer of employment."
In both his testimony and his investigatory affidavit he
made the point that Feliciano was present during the
conversation, yet Feliciano failed to corroborate his testi-
mony. Further, Dupere no longer works for the Respon-
dents and impressed me as an unbiased and neutral
witness. Accordingly, I credit his testimony and find that
the General Counsel has failed to prove by a preponder-
ance of the evidence the allegation contained in paragraph
VII(A) of the consolidated complaint.
C. Alleged Interrogation and Refusal To Hire
Vernon H. Rouillard
Paragraph VII(B) alleges, in substance, that, on or about
July 28, Dupere interrogated Vernon H. Rouillard regard-
ing his support for the Union. Paragraph VIII alleges that
on the same date the Respondents refused to hire Rouillard
because of his activities on behalf of the Union, or because
of other protected concerted activities.
Rouillard was employed by Bell (and before that by
Philco-Ford) as a senior digital technician from 1972 until
January 1975 when he quit because his work interfered
l0 In an investigatory affidavit given an agent of the Board, Rouillard
stated he stayed on as the Union's vice p;esident until mid-May 1975, when
it interfered with school.
II Littou denies he called Rouillard in July or any other time. According
to him, the first time he ever talked to Rouillard was in person in April 1976
when Rouillard brought him an updated resume. Apparently someone from
Littou's office called Rouillard on July 24 and arranged the July 25
interview with Dupere. On cross-examination Rouillard stated the individu-
with his studies at Cuesta College in San Luis Obispo. His
supervisor at Bell was Russell Sharon. He testified that
while working for Bell he served as the union chief steward
from 1973 until November 1974, had been on the Union's
executive board in 1973, and was the Union's vice
president from June 1974 until January 1975 when he quit
his job.t' Sometime in July, at the end of the school
semester, Rouillard noted a Zapex newspaper ad for a
digital technician on the bulletin board located in the
college job placement center. As suggested in the ad, he
sent a copy of his resume to Littou. He testified that on
July 24 he received a phone call from Littou who
purportedly stated "that I had all the qualifications and he
would like to have me aboard . . . he would set up an
appointment for me to speak with Mr. Dupere at Hunter
Liggett on the 25th of July." 1
On July 25, Rouillard reported to the interview trailer at
Hunter Liggett and was taken to Dupere's office. He
testified that during the interview he told Dupere that he
had earned $5.82 per hour at Bell as a senior technician,
and that Dupere responded that Zapex paid their highest
technicians $4.50 per hour. "Then he went into the benefit
program with me explaining about how extra money was
being given for transportation. Then I dropped my demand
down to $5.65 per hour."' 2 According to Rouillard,
Dupere then returned his job application form and asked
that he complete it again and list BDM personnel as
references in place of Bell personnel.13 Rouillard's testimo-
ny as to what transpired next is:
then he said to me about that time that he had to
go somewhere and he went between the wall lockers
heading towards where Mr. Hurst's office was who was
the project manager at that time for Bell Aerospace. At
that time Feliciano was coming through the opposite
direction between the wall lockers and he spotted me.
. . . he made a joking remark, "Hi, Vern, how is the
vice president doing?" I said, "Well, I am not vice
president no more." He said, "You were a good one
and a good chief steward." About that time Mr. Dupere
seemed to come to a screeching stop and turned and
looked at me. .... He came to a stop, turned around,
and looked at me and turned around to head off to Mr.
Hurst's office. .... He came back from the office and
he said that he wanted me back Monday, that he had to
check with Fort Ord about my wages and to finish
filling out this application. I asked him if I could use
Feliciano's name on that application since I used to
work with him quite regularly. He said, yes. I also
named two other people whose names I forget at this
time. I was to return Monday morning but I explained
to him that I had to turn in some chemical supplies I
checked out at Cuesta and Monday morning was my
al with whom he spoke stated, "That I had the qualifications for setting up
an appointment for me to meet with Mr. Dupere."
12 On cross-examination he testified he told Dupere he could not accept
less than $5.65 per hour.
13 It appears Bell had a policy of refusing to give references for their
employees. While working for Bell, Rouillard also worked with BDM
employees.
1244
ZAPEX CORPORATION
turn to turn my supplies in. We set up another time at
noon on Monday, the [28 ] of July, to return." 14
Rouillard testified that, on the following Monday (July
28), he returned to Hunter Liggett and gave Dupere his
application for employment; at Dupere's invitation he
followed him into his office. He further testified:
He [Dupere] didn't say anything there for about 5 or 10
minutes, it seemed like a long time. Then he looked up
at me and said, "I want to talk to you outside of the
trailer." ... we went outside the trailer on the platform
... he told me that every time he talked to Bell
Aerospace people they would show up for work, turn
around, and go on the strike line. .... I told him that I
was not in the Union at that time and the strike could
not affect me in any way and that I was here in true,
honest faith looking for work, ready to go to work, if we
could come to an agreement on wages. Then the
conversation got kind of real touchy in that area ...
Further he went into - he finally told me that I could
go ahead and join the people on the strike line at this
time. He says he has no job for me and I am not
qualified.... He was mentioning about different
people coming to work for 1 day and then turning
around and going out on the strike line and that the rest
of the - he said something about "tell the BDM people
out there they will never be hired by this company"
. . . he was getting kind of irrational at that time and I
just kind of walked off and left.
Asked at this point by the General Counsel whether
Dupere had mentioned anything about Rouillard's prior
union office, Rouillard added:
Mr. Dupere wanted to know was I actually a vice
president of the local union and I said I was at one
time. I explained to him my different offices I had and
assured him I was now resigned from the Union, that I
was not a member at that time . ... [Dupere said] just
14 In his investigatory affidavit, Rouillard stated that Dupere made him a
job offer of S4.50 per hour, after which he lowered his requirement from
$5.82 to $5.65. After making arrangements to meet him again the afternoon
of July 28:
At that point, [Feliciano] walked in the office land said: "Hey Vern,
you still vice president of the Union?" I told him I had resigned.
[Feliciano I then said I was the best chief steward out here. Dupere did
not say anything and I left.
Thus, it is seen that Rouillard's testimony and affidavit differ in that the
affidavit refers to a job offer having been made at $4.50 per hour, while his
testimony was to the effect that Dupere stated Zapex paid their highest
technicians $4.50 per hour. Further, in the affidavit the purported remarks
by Feliciano regarding his having been vice president of the Union and chief
steward came at the end of the interview as he was leaving, whereas he
testified at the hearing that they were made during a break in the interview
when Dupere had to leave, at which time Feliciano appeared. As will be
seen hereafter, Feliciano denied making the remarks, and his denial is
corroborated by Dupere. For reasons appearing hereafter, I credit Feliciano
and Dupere.
15 The account of the July 28 meeting, as related in the investigatory
affidavit, recites that, after giving Dupere the job application, Dupere
looked it over and:
to go out and join the strike line and tell those people
they ain't going to work here anymore.
He contends he went back around Thanksgiving and again
in December and told Dupere he was still looking for work,
and in March 1976 he gave Littou an updated resume and
stated he was still looking for work. 15
Dupere testified that on July 25 he was introduced to
Rouillard in the administration trailer, given a copy of his
resume, and told that he was there for an interview.
Feliciano entered, greeted Rouillard, and asked how he
was; Rouillard responded he was fine. Feliciano told
Dupere he was needed in IMO (Instrumentation Mainte-
nance Organization) because of a problem. He testified he
had not expected Rouillard and was fairly busy, and asked
Rouillard if he would mind conducting the interview "sort
of on the run." Dupere asked questions of Rouillard on the
way to IMO, where he had an office. They continued the
interview in the office until Dupere was called away briefly,
at which time he saw Feliciano whom he asked to talk to
Rouillard while he was away. He denied that when
Feliciano entered that he mentioned anything about
Rouillard's having been a vice president of the Union or
chief steward. After returning, Feliciano left and Dupere
resumed the interview. He testified he asked Rouillard
about his technical background, told him the Company
was having computer problems, and asked about his
computer experience and RMS (Range Measuring System)
experience. Dupere testified that Rouillard brought up the
fact that he had been a union member, but that he had
nothing to do with the people on the picket line and was no
longer a member of the Union. Dupere responded that he
was not interested in his union affiliation and it had
nothing to do with the interview. He then asked Rouillard
the position he was interested in and his salary expectation,
and was told Rouillard wanted to be the leadman for the
RMS section, and what wage he would accept.'6 When
asked if he would accept another position and a lesser
salary, Rouillard replied in the negative. At the end of the
interview Dupere took Rouillard to the administration
trailor and told him to fill out an application for employ-
He then said he could offer me $5.10 per hour. I told him I couldn't
accept less than $5.65. At that point he became upset, or seemed so, and
asked me to step outside the trailer. He told me that Zapex had offered
jobs to several former Bell employees, that most of them . . . would
accept but . . . not report to work, instead they would go out on the
picket line. He asked if I would do the same thing. I said if given a job
at the rate I said I would accept ($5.65 per hour) that I would report to
work. I told him I had resigned my vice-presidency in the Union. He
then told me I was too dangerous to have around, that I would
probably turn the shop into a union shop, and that I may as well join
the rest of the union members on the picket line... because I didn't
meet compan. requirements. He added that he would not hire any
former Bell employees that were union members and that the BDM
employees on the strike line would never work for Zapex.
Thus, while his hearing testimony denies there was any conversation
between them in the trailer, his affidavit states that Dupere offered him a job
at $5.10 per hour, which was declined since he could not accept less than
$5.65. Further, while he testified at the hearing, after prodding by the
General Counsel, that Dupere asked him if he was actually a vice president
of the Union, it appears from his affidavit that, in an effort to persuade
Dupere to offer him $5.65 per hour, he volunteered the information that he
had resigned his vice presidency from the Union.
is Rouillard testified he first asked for $5.82 and then lowered it to $5.65
per hour.
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. Rouillard asked, and was told that Feliciano would
be a good reference. Dupere told him to bring the
application in the following Monday, which Rouillard
stated he couldn't do because of a prior commitment, so
was told to mail it in.
Feliciano testified he had known Rouillard when they
both worked for Bell, and upon seeing him again asked
what he had been doing since he had left Bell. The reply
was that Rouillard had been going to school. Feliciano
testified, in confirmation of Dupere, that he was delivering
a message to Dupere regarding a problem in the IMO area.
He not only denied he asked Rouillard how the vice
president was doing, but also that he even knew Rouillard
had been a union vice president. While he knew Rouillard
had been the chief steward at Bell, he denied having made
any remark about it.'7 Feliciano testified that he and
Dupere had discussed Rouillard's qualifications but, since
he had never worked with Rouillard, he was unable to give
Dupere any information. s8
Dupere testified that on July 28 he ran into Rouillard
outside the administration trailer and, while he had not
expected to see him, the two went inside the trailer where
Dupere looked over the job application which Rouillard
had brought in. The only conversation, he testified, related
to when Rouillard might expect an offer. He explained that
he was not the one who made the decision, but that
Rouillard's resume was in the "pipeline" and that he would
hear from the Company one way or the other within a
week. Testifying that he and Rouillard were the only ones
in the trailer, he denied telling Rouillard he wanted to talk
to him outside. He testified that since he had not expected
Rouillard to show up that day, he had work to do and was
therefore anxious to get rid of him. He denied the
statements attributed by Rouillard, that Bell employees
would show up for work and then go out on strike; that
Rouillard could go join the strikers; that Rouillard should
tell the BDM strikers that they would never be hired; and
that he asked Rouillard if he was vice president of the
Union. He also denied telling Rouillard there was no job
for him and that he was not qualified. Acknowledging he
was in a hurry since he had not expected Rouillard that
day, he denied he was irrational as Rouillard contended.
Dupere testified that he was not involved in the decision-
making process of hiring, that his job was to interview and
to evaluate people from a technical standpoint. According
to him, Rouillard had been adamant about the particular
slot he wanted and the pay grade. While the Company
needed people with computer knowledge, Rouillard "didn't
know anything substantial about computers from the
conversation that I had." Dupere had asked Feliciano
whether he thought Rouillard was qualified as head of
RMS, and Feliciano had responded that Rouillard had not
been one of the main people involved in the system at Bell.
Accordingly, Dupere wrote on the bottom of Rouillard's
resume "recommend a lesser position, ditch to electronic
tech."
1? Both Dupere and Feliciano acknowledged that Feliciano later told
Dupere that Rouillard had been the shop steward for the Union at Bell.
1s At the time Feliciano gave a Board agent an investigatory affidavit, he
was shown a copy of Rouillard's resume and stated he would have been
qualified for a position as a digital or electronic technician in the
Littou denied ever having talked to Rouillard prior to
early April 1976 when Rouillard introduced himself and
stated that he had brought in an updated resume. Littou
received the resume, and they discussed the reasons
Rouillard had left Bell and the work he had done there. He
testified that he told Rouillard that the new resume would
be placed in the file "and they would have to get back to
him." According to Littou, "He then proceeded to tell me
further about other experiences he had had in the manage-
ment area .. . that he had had a position with the Union
as an official." Littou responded that he was not interested
in that, and that the required information was in his
resume. Littou testified:
He then proceeded to say that he had had a previous
conversation with the NLRB; that the occurrences of
the previous - his previous application, he felt, was a
rather misunderstanding; and that he hoped that a
position would be available to him; and that if it were, I
am sure that things could be dropped and everything
forgotten. I again informed him that I was not in a
position to make a decision on the matter, at that time;
and that we would have to get back to him.
Littou assumed Rouillard was making reference to the
charge filed with the Board.' 9
Rouillard's testimony was not convincing and noticably
lacked corroboration from Feliciano, an employee whom
he had apparently known for some time. Further, Rouil-
lard's testimony conflicts with his investigatory affidavit in
several respects. As noted above, the complaint alleges the
Respondents' refusal to hire Rouillard because of the
Union. To so find, I would have to ignore completely the
sworn affidavit which Rouillard gave the Board and which
is in evidence, and which states that on July 25 he was
offered a job paying $4.50 per hour, and on July 28 was
offered one paying $5.10 per hour, both of which were
rejected since he would not accept less than $5.65. I suspect
that Rouillard's testimony at the hearing makes no men-
tion of the offers and refusals since he had learned that the
complaint alleged the refusal to hire, which is inconsistent
with an offer having been made. His testimonial and
affidavit versions of the remarks purportedly made by
Feliciano in Dupere's presence, regarding his having been
a vice president of the Union and a good chief steward,
also are inconsistent. He testified that the remarks were
made as Dupere was leaving his office, and that upon his
return they arranged to meet again on July 28. In his
affidavit he stated the remarks were made by Feliciano at
the end of the interview and after the July 28 meeting had
been arranged. Feliciano failed to corroborate either
version, and in fact corroborated Dupere's denial that any
such statement was made in his presence. Further, while
both Feliciano and Dupere admit that at some point
Feliciano told Dupere that Rouillard had been a shop
steward, he denied knowledge that Rouillard had ever been
the Union's vice president. Rouillard's account of the July
maintenance group. The General Counsel did not contend that Feliciano
had any hiring authority or expertise in evaluating the work potential of
employees.
19 Littou's testimony stands unrefuted. The first amended charge in Case
20-CA-10477, filed August 8, alleged the unlawful refusal to hire Rouillard.
1246
ZAPEX CORPORATION
28 meeting with Dupere further leads me to doubt his
veracity. He testified that, after giving Dupere his applica-
tion, Dupere did not say anything for 5 or 10 minutes, until
they left the trailer. Yet his affidavit states that, while they
were in the trailer, Dupere made him a job offer which he
refused. Furthermore, it appears from his affidavit that he
volunteered the information to Dupere that he had re-
signed as vice president of the Union, while he testified -
only after having had his memory refreshed by the General
Counsel - that Dupere asked him if he was "actually" the
Union's vice president. In sum, I credit the testimony of
Dupere and Feliciano over that of Rouillard, and find that
the General Counsel has failed to prove by a preponder-
ance of the credible evidence the allegations contained in
paragraphs VII(B) and VIII of the complaint.
D. Alleged Failure To Reinstate Economic Strikers
The substance of paragraph IX of the consolidated
complaint is that on or about September 2 Respondents
refused to reinstate Russell Sharon, Craig Shields, Robert
Salczynski, William Horrell, Clyde Varney, Clyde Had-
veck, Robert Barela, William C. Rudd, David Spear,
Luther Briggs, William Slauson, G. Y. Mak, Boyd Lester,
Lawrence Gibb, and Gerald Schmidt because they partici-
pated in an economic strike against Respondents.
Each of the 15 alleged discriminatees, all of whom were
subsequently offered reemployment, will be considered
hereafter separately. In addition to those 15 strikers, there
were a number of other strikers, some of whom were also
recalled, and others who apparently resigned or for some
other reason relieved Respondents of the obligation to
reemploy them.
As noted earlier, in addition to individual requests by
most of the alleged discriminatees for reemployment
following the strike, on September 3, the Union made an
unconditional offer to return on behalf of 26 individuals,
including the 15 alleged discriminatees. Excluding the
alleged discriminatees, the record establishes the following
with respect to the other I I individuals who the Union
claimed were strikers: 20
J. L. Ashley, an associate engineer, was hired by
one of the BDM affiliate companies on October 1,
1971, and transferred to one of the Respondents
effective July 14. He was either terminated or resigned
on August 1.
S. J. Hubbard, draftsperson, was hired by BDM
Services Company February 9, 1973, and was either
terminated or resigned July 8.
J. E. Barszcz, draftsperson, was hired by a BDM
affiliate company November 27, 1972, was scheduled to
transfer to one of the Respondents effective July 26, but
resigned July 7.
M. Nicholson, draftsperson, was hired February
26, 1973, was scheduled to transfer to one of the
Respondents effective July 26, but resigned July 7.
L. G. Lambert, associate engineer, scheduled to
transfer to Respondents July 14, resigned July 10.
20 Names italicized have been reemployed by Respondents.
21 The General Counsel does not contend any unlawful acts associated
with either the terminations or resignations of those individuals.
C. L Lunsman, systems engineer, hired October 10,
1972, scheduled to transfer on July 26, joined the strike
on July 8 and was recalled November 12 as a systems
engineer in anticipation of the resignation of systems
engineer S. D. Shielke.
T. J. McCarten, scientific programmer, scheduled
to transfer to one of the Respondent's July 14, joined
the strike on July 7 and resigned August 29.
Susan G. Douglas, general clerk, was hired and
joined the strike on July 7 and was reemployed
December 1.
George F. Ferris, general mechanic, was hired on July
2, joined the strike on July 7, and was recalled on
September 5 as an electrician.
George A. Kyriazis, associate engineer, was hired
and resigned July 22.
Joseph R. Montemurro, carpenter/painter, was hired
July 2 and apparently never reported for work.
The parties stipulated that the following were also
strikers:
Eugene T. Wiggins was offered a job as electronic
technician I on June 23, which he accepted on June 25
to report July 14. He was offered reemployment on
September 5.
Arthur C. Hull was offered a job as electronic
technician III on July 5 which he accepted on July 7 to
report July 8. He was offered reemployment on Sep-
tember 5.
The record further establishes the following as strikers:
L Z. Wilson, tape certifier with Bell, was offered the
same position with Respondent on June 23 which he
accepted. He failed to report on July 22. He was again
hired on November 28 upon the resignation of Jack S.
Duffy who had been hired July 28, apparently because
Wilson had failed to report as agreed on July 22.
Charles W. Fletcher was hired July 2 as a machinist
or welder, withheld his services on July 7, and was
reemployed on December 10 as a maintenance me-
chanic.
Thus, it is seen that out of 30 individuals who one or the
other of the Parties contends were strikers, 22 have been
offered reemployment, 7 have either been terminated or
resigned,2 1 and the status of 1, Montemurro, is unaccount-
ed for but apparently not relative to the matter at hand.
The General Counsel contends that Respondents sup-
pressed evidence and has asked that a specific finding be
made that Respondents did not produce subpenaed rec-
ords showing temporary striker replacements. Respondents
contend that the only temporary employees utilized during
the strike were temporary transferees from other BDM
affiliates, and that the expense and per diem vouchers
which were produced at the hearing disclosed those names.
Those vouchers and all personnel files of Respondents
were made available to the General Counsel in the hearing
room throughout most of the hearing, and on I day the
1247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel utilized the services of two additional
Board agents to peruse those files. Accordingly, the
requested finding and the adverse inference which the
General Counsel requests be drawn are denied.
The General Counsel contends that openings demon-
strated by evidence of new hires after strikers offered to
return, quits and terminations of replacements, advertise-
ments for new employees, and staffing charts demonstrat-
ing Respondents failed to provide staffing levels promised
the Army and required by the workload establish that the
strikers should have been reinstated prior to their actual
recall by Respondents.
Respondents contend that a full staff of permanent
employees was reached by late August and that, as
openings occurred following the end of the strike, the
strikers were given first consideration and offered employ-
ment to jobs for which they were qualified. Respondents
point out, however, that employees were not routinely
replaced; rather, that replacements and staff increases
occurred only after a survey of current employee resources
and CDEC requirements. The evidence establishes that
CDEC's requirements vary from experiment to experiment
and from day to day within each experiment. To meet this
fluctuating demand, Respondents utilized the "matrix
system" whereby they were able to shift available qualified
manpower from one area of diminishing requirements to
an area with increased requirements in place of automati-
cally hiring a new employee whenever a need was found in
a particular area. In this regard, it must be remembered
that Respondents were limited in the amount of money
that could be expended, and that they were experiencing a
much heavier demand on their resources by CDEC than
had been anticipated, resulting in February 1976 in the
modification of the contract by increasing the staff size by
19 at a total increase in cost of $150,000. Therefore, prior to
February 1976, it was particularly important to anticipate
and estimate the level of effort which would be required to
perform satisfactorily under the contract within the cost
limitations.
Economic strikers, as here, who unconditionally apply
for reinstatement 22 at a time when their positions are filled
by permanent replacements, remain employees and are
entitled to full reinstatement on the departure of replace-
ments unless in the meantime they have acquired regular
and substantially equivalent employment, or the employer
can sustain his burden of proof that the failure to offer full
reinstatement was for legitimate and substantial business
reasons. The Laidlaw Corporation, 171 NLRB 1366 (1968),
enfd. 414 F.2d 99 (C.A. 7, 1969) cert. denied 397 U.S. 920
(1970). Citing Fire Alert Company, 207 NLRB 885 (1973),
the General Counsel contends that "even if an individual
strikers position has been filled by a permanent replace-
ment, he is entitled to reinstatement to any position to which
he is. qualified to fill." (Emphasis supplied.) After quoting
from Laidlaw, the Board in Fire Alert stated, [T]he
Respondent's reinstatement obligation . . . is not limited
22 Respondents question the effectiveness of the Union's offer of
reinstatement. "Nothing in the Act precludes a minority union from acting
as the employee's agent to request reinstatement." N.LR.B. v. I. Posner,
Inc., Posner Distributing Corp., 304 F.2d 773, 774 (C.A. 2, 1962).
23 The wage differential between the first- and second-class lineman in
New Era was 10 percent.
to the strikers' old positions, but rather includes reinstate-
ment to substantially equivalent positions which the strikers
are qualified to fill." (Emphasis supplied.) In Little Rock
Airmotive, Inc., 182 NLRB 666 (1970), the Board stated,
"The question of what constitutes 'regular and substantial-
ly equivalent employment' cannot be determined by a
mechanistic application of the literal language of the
statute but must be determined on an ad hoc basis by an
objective appraisal of a number of factors, both tangible
and intangible, and includes the desire and intent of the
employee concerned."
Some of the factors which the Board considers relevant
are fringe benefits, wage rate, "location and the distance
between the location of the job and an employee's home,
differences in working conditions, etc." In New Era Electric
Cooperative, Inc., 217 NLRB 477 (1975), the Board held
that reinstatement to a second-class lineman position was
not substantially equivalent to a first-class lineman posi-
tion, even though the first-class lineman was clearly
qualified to fill the position of a second-class lineman.
Factors considered in arriving at the finding were the
differences in wage rates2 3 and overtime, and the fact that
a second-class lineman works under a first-class lineman.
Hence, the applicable test is not the qualification of an
employee for the job, but whether the job is substantially
equivalent to the employee's prestrike job. The evidence
with respect to the reinstatement of each of the alleged
discriminatecs disclosed as follows: 24
I. Robert Barela
Barela was hired by BDM Services Company in October
1971 and was transferred to Zapex on July 7, 1975, as an
associate engineer in the engineering development (ED)
lab. At the time he went on strike on July 15, he was in
training to take over the position of lead technician in the
RMS/DFS system that Russell Sharon had occupied with
Bell.25 The record shows that, on August 1, Donovan
Palmer was hired to fill that position and was still
employed at the time of the hearing herein.2 6 In the
afternoon of August 29, Barela called Littou and offered to
return to work and was advised that his name would be
added to a list and that "he would get back to me." On
September 2, Barela directed a mailgram to Littou offering
unconditionally to return, and on September 6 was advised
by telegram that he had been replaced. By letter dated
October 9, Barela was offered, and accepted, a position as
associate engineer in PDFS at a salary of $1,058.33 per
month. Effective January 1976, Barela received a 7-percent
wage increase, and on March 12, 1976, resigned his
employment.
The General Counsel contends that the record reflects at
least 10 specific openings in 4 different job classifications
in which Barela could have been reinstated, either immedi-
ately or upon his request or at some point between his offer
to return and his actual reinstatement.
24 As noted earlier, the strike ended on August 29.
2i Sharon described his job with Bell as section supervisor. The ED lab
was later called the PDFS (prototype development fabrication support lab)
by Respondents.
26 Barela had been advised that he would be replaced.
1248
ZAPEX CORPORATION
Robert Kim was hired on October 6 as an electronic
technician 1127 in the field-support section of IMO, and J.
E. Soares was hired on the same date as an electronic
technician III in the instrumentation support section of
IMO. The rate of pay for an electronic technician 11 is
$4.94 per hour, or $759.28 per month, and the rate for an
electronic technician III is $4.14 per hour, or $636.32 per
month.2 8 Associate engineers are salaried, as opposed to
being paid on an hourly basis. As noted, Barela's salary
upon reemployment as an associate engineer was $1,058.33
per month. It is reasonable to assume that his associate
engineer salary as the lead technician in the RMS/DFS
system would have equaled that figure. In view of the pay
differential (exceeding 28 percent between electronic tech-
nician II and associate engineer), it is found that the
electronic II and III positions are not substantially equiva-
lent to the associate engineer job formerly held by Barela.
New Era Electric Cooperative, Inc., supra.
The General Counsel contends that Barela should have
been offered a number of other electronic technician
openings in the RMS/DFS and Radar/DARS/CDL sec-
tions of the IMO. The record shows these jobs occupied by
electronic technicians II and III. In view of the pay
differential set forth immediately above, it is found that
those jobs were not substantially equivalent to the associate
engineer job formerly held by Barela.29
The General Counsel contends that Barela should have
been hired in early September as an associate engineer in
PDFS in place of Timothy Cook and Milton Brown, and to
replace A. Nicota 30 who failed to report for work on
September 9.31 Associate Administrative Manager Phillips,
whose primary duty was "the mechanics of recruiting,
hiring personnel," testified that "normally we didn't send
the [offer] letter until we had already made a verbal offer
and it was accepted." The record shows that job offer
letters were sent to Cook and Brown on or about August 18
and 23, respectively, and that the two commenced work on
September 2 and 8, respectively. In these circumstances it
is found that both Cook and Brown had accepted perma-
nent employment prior to the strikers' offers to return to
work.32 The evidence shows that, by September 2, A.
Nichta had orally accepted a position as associate electron-
ic engineer and was to report on September 8, but
apparently failed to report on that date. As of September 2,
the Respondents employed and had on board eight
associate engineers in PDFS, which was the authorized
number. Barela was the next associate engineer hired to
work in PDFS.
The evidence establishes that R. B. Vige was a senior
electronic technician with computer experience prior to his
employment by Respondent. His employment application
is undated; however, a notation on the cover page states
27 See Resp. Exhs. 53(g) - (s).
28 Based on the Army definition of a manmonth consisting of 153.7
manhours.
29 Jeffrey V. Johnson, Dennis Wilson, Thomas N. Haney, and Larry
Motherwell were electronic technicians II, and Wilson Roberts was an
electronic technician Ill. While the General Counsel contends that Barela
and seven other alleged discnminatees should have been hired to replace
William P. Kerschner as digital electronic technician in RMS/DFS, no
evidence was proffered by either the General Counsel or Respondent
regarding Kershner. The exhibits disclosed, however, that all technicians
employed in RMS/DFS, as noted above, are in electronic technician 11 and
that he would call Phillips on September 2. As the rate of
pay he received from his prior employer exceeded the
electronic technician I pay scale paid by Respondents, he
was offered a salary comparable to that of an associate
engineer. Received as Respondents' Exhibits 53 and 54 are
a number of organization charts prepared by Phillips for
his own use and based on information from both the
personnel section and his own knowledge regarding offers
and acceptances. People were first listed in the sections or
departments in which Phillips thought they would work
and the charts were later circulated among the department
chiefs and "hopefully" corrected. Prior to his reporting,
and in the charts dated November 4, Vige is listed in both
the PDFS branch of the engineering department and the
computer section of IMO.33 Later charts show him em-
ployed as an associate engineer in the computer section of
IMO where he was employed at the time of the hearing. In
the organization charts and assignment roster sent the
Army in accordance with the contract, Vige is listed only in
the computer section of IMO. I conclude from the evidence
that Vige was not hired to work in PDFS, but was hired
because of his computer background for a position in the
computer section of IMO for which it was not shown that
Barela was qualified.3 4
Lawrence Gowin, a former Bell employee, was hired on
October 1 as expediter, an administrative staff position.
The General Counsel contends that all of the alleged
discriminatees were qualified and should have been offered
this position. The expediter is the chief buyer and is
primarily responsible for procurement, which requires
knowledge and experience in ordering books and procure-
ment procedures. It was not shown that any of the alleged
discriminatees possessed the requisite experience required
to perform this job. Moreover, the expediter is not within
the unit sought to be represented by the Union.
The General Counsel contends that Barela should have
been hired to replace property control clerk Charles Harris,
who left Respondents' employ on September 26, and in
place of Gerald W. Roof, who was hired on October 15.
The rate of pay for property control clerk is $3.53 per hour.
It is found that property control clerk is not a job
substantially equivalent to that of associate engineer.
The General Counsel contends that Barela should have
been hired to replace tape certifier technician Jack S. Duffy
who left Respondents' employ on November 28. Aside
from the fact that Barela was already reemployed in
October, the record shows that Duffy was replaced by L. Z.
Wilson, who had held the same position with Bell and who
had been hired by Respondents to commence working July
22, but who failed to report because of the strike. Wilson
was entitled to reemployment in that position in preference
to all of the other strikers. Moreover, the position pays
Ill1 pay categories which I find are not substantially equivalent to the pay of
an associate engineer.
30 Apparently the General Counsel means A. Nichta.
31 As noted above, Barela was offered an associate engineer position in
PDFS on October 9.
32 The offer letters recite that the positions offered are permanent.
33 His name first appeared in the computer section in an October 6 chart,
but not on the October 7 and 15 charts.
34 He was later in Task Force 605. consisting of computer specialists
hired specifically to solve the GE 605 computer problems.
1249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$3.86 per hour, and is not substantially equivalent to that
of an associate engineer.
Until June or early July, David L. Dalgity and Roy L.
Foster, associate engineers, were employed by BDM
Corporation pursuant to a Government contract in Flori-
da. As that office was to close in August, both men were
given the opportunity to transfer to Fort Hunter Liggett,
which they exercised. Arrangements were made through
the executive vice president for them to receive more
relocation expenses than ordinarily given employees. Both
men had come to California in June or July, prior to the
commencement of the strike, but had left their families in
Florida. General Counsel's Exhibit 52 shows the date of
hire of each as September 10. Anello testified that both
men were considered permanent Zapex employees as of the
time they transferred in June or early July, but that the
paper transfer did not occur until their second anniversary
date of employment with BDM Corporation, which was
September 10, 1973. On these facts I conclude both Dalgity
and Foster were permanent employees from the beginning
of their employment, which was prior to the strike.
2. William Horrell
Horrell was hired by BDM Services Company in No-
vember 1971 and was scheduled for transfer to Zapex on
July 21 as an associate engineer in the ED Laboratory. He
became a striker on July 7. On August 29 he called Littou
and offered to return to work and was advised that Littou
"would get back" to him. On September 2 he reconfirmed
his offer by mailgram, and on September 6 received a
mailgram advising that he had been replaced. On February
11, 1976, Respondents, by letter, offered Horrell employ-
ment as an electronic technician I at a salary of $5.67 per
hour, commencing not later than February 19.35 On
February 12, the same offer was made by mailgram.
Horrell's acceptance and agreement to report for work
February 19, 1976, was signed March 3, 1976.36
The General Counsel contends that the record reflects a
number of specific openings in classifications in which
Horrell could have been reinstated prior to February 1976.
For the reasons expressed above regarding Barela's rein-
statement as an associate engineer, it is concluded that the
positions for which the following were either hired, or from
which they left employment, were not substantially equiva-
lent to the associate engineer job for which Horrell had
initially been employed: Jeffrey V. Johnson, Timothy
Cook, Milton Brown, Dennis Wilson,37 A. Nichta, Law-
rence Gowin, Larry Motherwell, William P. Kershner,
Wilson Roberts, Thomas N. Haney, Gerald W. Roof,
Charles Harris, and Jack Duffy. No additions were made
to the PDFS section following the October reinstatement of
Barela, until after the Respondents' January reorganization
and the contract between the Army and Respondents had
been modified on February 1, 1976, by increasing Respon-
dents' staffing size by 19. Horrell's offer of reemployment
35 While the record does not disclose the rate of pay Horrell was to
receive as an associate engineer with Zapex, he testified he had received
$6.49 per hour ($997.51 per month computed on the Army proposition that
153.7 manhours are equivalent to a manmonth) working as an associate
engineer for BDM Services Company.
3s Whether Horrell commenced work on February 19 or March 3 is not
revealed in the record.
followed on February 11. The General Counsel contends
that Horrell should have been recalled to replace Francis
R. Hertz, an electronic technician II in RMS/DFS, who
left Respondents' employ on November 13, and calibration
technician William Shoemaker who left Respondents'
employ on January 16, 1976. Shoemaker's pay classifica-
tion was that of an electronic technician III. For reasons
stated before, the electronic II and III classifications are
not substantially equivalent to that of an associate engi-
neer.
The General Counsel contends that Horrell should have
been hired to replace Robert Runyon, an electronic
technician I in the field support branch of IMO, who left
Respondents' employ on November 28. The record shows
that, prior to Runyon's leaving, there were 10 employed in
the field support branch. James McComas, the lead
technician in field support, sustained an injury in Septem-
ber and was hospitalized for an undisclosed amount of
time. During his hospitalization, the branch operated with
an acting lead technician and nine employees. After
Runyon left, the branch operated with an acting lead
technician and eight employees. As noted, in January 1976,
Respondents underwent a reorganization and the field
support branch of IMO became a part of the PDFS
branch. Upon his release from the hospital, McComas
returned to PDFS. The record does not disclose that a new
employee was hired in either ED or PDFS following
Runyon's departure until after the reorganization and
authorized increase in the size of the staff in February 1976
when Horrell was reinstated.
3. Russell Sharon
As earlier stated, Sharon was employed by Bell as an
electronic technician, and during his last 8 months of
employment was a section supervisor in the RMS/DFS. He
was interviewed by Respondents in late June and offered a
job as an electronic technician paying $4.94 per hour,38
commencing July 14. On July 13, he was called by Dupere
and offered a job as associate engineer commencing on
July 14 and paying $1,000 per month.39 Upon completing
his employment with Bell on July 14, he joined the strike.
On September 2 Sharon contacted Littou and offered to
return to work. Littou told him that "they were about 99
percent manned and he would have to get back to me."
Sharon is listed on the names submitted by the Union
dated September 3 as unconditionally offering to return to
work. On February 23, 1976, Respondents sent Sharon a
telegram and letter offering him a job as electronic
technician I paying $5.67 per hour commencing March 1.
On February 25, Sharon advised Respondents by letter
that he was refusing the job because "I find the salary
unacceptable." He testified he declined the job "because I
am already working [for someone else]." 4 0
The General Counsel contends Sharon should have been
reinstated immediately in view of three radar technician
3a As will appear hereafter, the record establishes that Wilson accepted
employment prior to the end of the strike.
38 Electronic technician II rate.
39 He was never advised what his job assignment would be.
40 The date he accepted other employment was not established.
1250
ZAPEX CORPORATION
openings in the radar/DARS/CDL section of IMO as of
September 2, and another opening on September 5; that he
could also have been reinstated immediately to the vacancy
in the RMS/DFS section of IMO; that he was qualified for
the electronic technician vacancy in the instrumentation
support section for which Dennis Wilson was hired on
September 8; that he could have been hired in place of
Larry Motherwell on October 6; and that he was qualified
to fill the position vacated by Kershner on August 29, by
Haney on September 15, by Harris on September 26, by
Hertz on November 13, by Runyon on November 28, and
by Roof on December 15.
The evidence shows that Sharon's prior experience was
as a radar and electronic technician and that he was
qualified to work on the RMS/DFS since he had been the
supervisor in that section while working for Bell. He also
claimed 2 years' experience as a digital technician. The
evidence does not disclose the position Sharon was to have
filled had he reported on July 14.
Respondents' Exhibit 53(a) indicates that on September
3 the radar/DARS/CDL section of IMO had an autho-
rized strength of nine employees, but actually employed
six, with W. H. Roberts scheduled to terminate on
September 5. On September 8, Arthur C. Hull, a striker,
was recalled and commenced working in that section as a
radar technician. In October, Hull left Respondents'
employ, and immediately prior thereto strikers Varney and
Hadveck were recalled as electronic technicians II and I,
respectively. Hadveck terminated on December 2, and was
not replaced. While the authorized strength of ra-
dar/DARS/CDL exceeded its actual strength by two or
three employees throughout November and December, it
does not appear Respondents experienced a need to
increase the strength in that section to the authorized
strength. Moreover, it is particularly noted that all of the
three employees hired into that section from September
through December were strikers. As those three and
Sharon enjoyed equal status as past participants in a strike,
Respondents would derive no advantage in selecting one
over the other on the basis of their past activities.
Accordingly, I find no merit in the General Counsel's
contention that Sharon should have been reinstated in
those positions.
The General Counsel contends that Sharon could have
been recalled immediately to a vacancy in the RMS/DFS
section of IMO. On September 2, the RMS/DFS section
had an authorized strength of either 10 or I 1, and an actual
strength of 9 employees. On September 5, Eugene T.
Wiggins, who the parties stipulated was a striker, was
offered and accepted a position as a digital electronic
technician in that section, bringing its strength up to 10,
which is shown thereafter as the authorized strength. As
Wiggins and Sharon were of equal status as strikers,
Respondent would have derived no advantage in selecting
one over the other, unless the advantage rested on
qualifications. I therefore find no merit in the contention
that Sharon should have been reinstated to RMS/DFS
immediately in place of Wiggins.
The General Counsel contends that Sharon should have
been hired in place of Dennis Wilson as an electronic
technician in the instrumentation support section of IMO.
The evidence convinces me that Wilson was hired prior to
the end of the strike, hence prior to the time Sharon made
his September 2 offer to return to work following the strike.
The record shows that at the time Wilson was hired he
lived in Alhambra, California, and that on August 29 he
received relocation funds pursuant to the Respondents'
"new employee relocation" policy, and thereafter received
additional funds pursuant to that policy while securing a
permanent residence. I find it most unlikely that Respon-
dents would have reimbursed Wilson for relocation ex-
penses had he not already accepted employment prior to
August 29. Wilson's name is already typed in on the
organizational chart which Phillips used on September 3,
indicating that Wilson was "due in" on September 8. Had
his reporting date not been arranged prior to September 3,
the entry to that effect would have been entered in
longhand on September 3. Accordingly, I find that Dennis
Wilson was hired prior to the end of the strike and prior to
the offers of any of the alleged discriminatees to return
following the strike.
According to the General Counsel, William P. Kershner
was hired as a digital electronic technician in RMS/DFS.
He left Respondents' employ on August 29. While the staff
assignment lists furnished the Army on June 26 and July 15
list Kershner as one of nine digital/electronic technicians,
neither the organizational nor matrix charts for August
(G.C. Exh. 5(c)) show Kershner employed in any category.
The chart for IMO shows, however, the 10 employees who
were employed in RMS/DFS, and the last name listed is
that of E. T. Wiggins, who the parties stipulated was a
striker, who was offered reemployment and commenced
working on September 5. Thus, Respondents apparently
hired a striker to fill the vacancy created by Kershner's
termination, and it does not appear any advantage was
derived in selecting one striker over the other.
The General Counsel contends that Sharon should have
been hired to replace Thomas N. Haney who was em-
ployed as one of three calibration technicians from August
I 1 to September 15. His pay grade was that of an electronic
technician II. Anello testified without contradiction that
Haney was not replaced since the work he was doing could
be, and was, adequately performed by the remaining two
calibration technicians. Hence, his job no longer exists.
Charles G. Harris was hired as a property control clerk
on August 11 and left on September 26. G. W. Roof was
hired as his replacement on October 15, and left on
December 15. From an organizational standpoint, property
control clerks fall in administration and are paid $3.50 per
hour. As a full-time property control clerk was no longer
needed at Hunter Liggett, following Roof's departure the
property control clerk from Fort Ord has spent from I to 2
days at Hunter Liggett doing the necessary property
control work. As Roof has not been replaced, and as the
job of property control clerk is not substantially equivalent
to that of an associate engineer or electronic technician (a
pay differential of 15 percent below electronic technician
111, 29 percent below electronic technician II, 38 percent
below electronic technician I, and even more below an
associate engineer pay rate), and for the further reason that
it is not within the unit which the Union sought to
represent, I find no merit in the General Counsel's
1251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention that Sharon or any other of the alleged
discriminatees should have been hired to replace either
Harris or Roof.
Francis R. Hertz was hired on July 28 as a laser
technician with an electronic technician II title. The
organization charts (G.C. Exh. 5) show Hertz assigned to
the RMS/DFS section of IMO. He left Respondents'
employ on November 13. Because of computer problems
brought on by the strike, Respondents recruited and hired
several individuals with special knowledge of computers. P.
M. Dankert, an electronic technician II, computer techni-
cian, received an offer letter dated August 20, and
commenced working September 2. He left on September
12. None of the alleged discriminatees was qualified as a
computer technician. Richard B. Vige, another computer
specialist, commenced work on September 28 or 29 and
was initially assigned to the ED lab (PDFS) and later
reassigned to the computer section of IMO. (Resp. Exhs. 53
and 54). Larry Motherwell, a former Bell employee with
experience on the GE 605 computer, commenced work on
October 6 as an electronic technician 1I, and was initially
assigned to the computer section, bringing the strength of
the department to the authorized level of five, excluding
the acting lead technician. Eugene F. Martin, a computer
technician, was hired on November 6 as an electronic
technician I and was assigned to the computer section of
IMO. Gerald E. Lee, a computer technician, was hired on
November 14 as an electronic technician 1, and assigned to
the computer section of IMO. Clarence R. Shryock, a
computer technician with repair and maintenance experi-
ence on the GE 605 computer, was hired December 1 as an
electronic technician I and assigned to the computer
section. With four technicians already in the computer
section, Carley, Dunham, Sweeney, and Corman, it can
readily be seen that, as the new computer technicians were
hired, the section exceeded its authorized complement of
five. Accordingly, with the addition of Martin, Lee, and
Vige (Vige first appears in the computer section in
November - Resp. Exh. 53(m)), Motherwell and Corman
appear on the organizational charts (Resp. Exh. 53(m)) in
the RMS/DFS section, leaving the computer section with
an authorized complement of five, but with an actual
complement of seven. At that point the RMS/DFS section
shows an actual complement of 11, with an authorized
complement of 10. Thus, it appears to me the Respondents
were in the process of overloading the computer staff with
the object of solving its major problem - computer failure
- but at the same time trying to stay within the projected
resources by assigning the excess computer technicians to
other sections of the organization. Hence, Motherwell and
Corman appear in the RMS/DFS section at the time Hertz
left, resulting thereafter in the computer section exceeding
its authorized complement by 2, and RMS/DFS at its
authorized complement of 10. Therefore, at the time Hertz
left, there were no openings in the RMS/DFS section, and
IMO either equaled or exceeded its authorized comple-
ment.41
Regarding the General Counsel's contention that Sharon
should have been hired in place of Larry Motherwell on
41 The computer technicians were later consolidated into a GE 605 task
force.
October 6, the record establishes that Respondents needed
someone with working experience on the GE 605 comput-
er, a job which Motherwell had held with Bell and was
therefore considered qualified. Sharon lacked experience
on the GE 605. Accordingly, I find no merit in the General
Counsel's contention.42
The General Counsel contends that Sharon should have
been hired to replace Robert A. Runyon, an electronic
technician I in the field support branch of IMO, who left
on November 28. Neither the testimony nor the organiza-
tion charts disclose a replacement was ever hired to fill the
slot vacated by Runyon until after the reorganization and
authorized increase in the size of the staff in February
1976, at which time Horrell was reinstated.
.The General Counsel contends that Sharon, Briggs,
Lester, Gibb, and Spear should have been hired in place of
Ruth Parry and Bernard Pardo who commenced work on
September 9 and 22, respectively, as physical scientists. No
testimony was elicited regarding the qualifications, duties,
or pay category for physical scientists. A comparison of
names and job titles listed in General Counsel's Exhibit 52
with the organization charts in General Counsel's Exhibit 5
shows that both Parry and Pardo were assigned to the
experimentation support department. The pay category for
scientists appears to cover several categories of scientists,
including operations research analyst, whereas the alleged
discriminatees are in engineering and electronic technician
classifications. As the record fails to show the above
discriminatees were experienced or qualified to work as
scientists, I find the General Counsel's contention lacking
in merit.
4. David Spear
Spear was hired on May 3, 1973, and was working as a
project engineer for BDM Services Company at the time of
his transfer to Zapex on July 1, 1975. His last day of work
before joining the strike was July 8. On September 2, he
made a personal appeal for reinstatement and was told he
would be contacted. On September 3 he was advised by
mailgram that he had been replaced. On February 4, 1976,
he was orally offered a position as a systems engineer
paying $1,233.33 per month. The offer was confirmed by
both a mailgram and letter. He commenced work again on
February 10, 1976, at Fort Hunter Liggett, and resigned on
March 22, 1976.
The General Counsel contends that Spear should have
been offered immediate reinstatement upon application in
view of the fact that Sherman F. Wince, George B.
Sweeney, Martin Thrasher, Jr., and Arthur F. Mitchell
were "acting" project engineers at that time, and for the
further reason that the Army had declared them as not
qualified. Mitchell was hired by BDM Services Company
on June 3, 1974, and at the time of the strike was working
as a senior military analyst. In view of many years of prior
CDEC experience with the Army, during and following the
strike he was assigned as a project engineer. Sweeney was
hired on July 14 as an engineer, having recently retired
from the Army where he had been the assistant deputy
42 Anello testified that three former computer technicians with Bell,
Dunham, Dankert, and Mattson had failed to report because of the strike.
1252
ZAPEX CORPORATION
chief of staff, instrumentation, for CDEC, and was respon-
sible for the planning, coordination, and direction of all
activities associated with several instrumentation and
support systems. Thrasher, an Army retiree, was hired on
July 14 as a project coordinator, having had prior experi-
ence as deputy chief of staff, instrumentation, at CDEC.
Wince was also hired on July 14 as an engineer, having had
prior Army experience as assistant deputy chief of staff,
instrumentation, for CDEC. None of the four possessed
engineering degrees and, by letter dated November 4, the
contracting officer's representative advised Respondents
that the Army considered 19 named employees not
qualified, Mitchell, Sweeney, Thrasher, and Wince on the
grounds they lacked the required engineering degrees. By
letter dated December 19, the contracting officer advised
Respondents of "several areas of deficiency," including the
list of 19 whom the Army considered "not qualified."
In the "cure" letter of July 24, the contracting officer had
contended that Mitchell and Del Presto were not qualified
to handle a job of project engineer. In his August 8
response to the "cure" letter, Hofer stated that the strike
replacement (apparently Del Presto) had qualifications
which exceeded those of the striker he replaced (Spear), but
that, since he had had no prior CDEC experience, an
acting project engineer (presumably Mitchell) with exten-
sive instrumentation experience had been assigned to assist
the project engineer, "particularly in his orientation relative
to CDEC operations." Hofer contended that the assign-
ment of an acting project engineer with CDEC experience
would "greatly accelerate the Project Engineer's orienta-
tion, and that full Project Engineering capability will be
established on or before 15 August and will not require the
3 months estimated by the Government." Elsewhere in his
letter, Hofer stated "BDM management personnel with
special experience in CDEC instrumentation have been
assigned to the Instrumentation Support Department of
SSL. These personnel have all functioned in engineering
management positions in the CDEC military organization
and are thoroughly familiar with CDEC instrumentation
and experimentation. They have been assigned as acting
project engineers. They are providing interim services
which are particularly effective in expediting the orienta-
tion of other replacement personnel with no CDEC
experience and in interfacing with CDEC personnel. They
will be replaced by project engineers, but will work with these
engineers for several months to assure continuity in the
engineering projects." (Emphasis supplied.) Thus, it would
appear that Mitchell, Sweeney, Thrasher, and Wince were
made "acting project engineers" for the express purpose of
orienting replacement personnel with CDEC operations,
and were later to be replaced by permanent project
engineers. 43
It is settled that an employer may refuse to reinstate
economic strikers if in the interim he has taken on
permanent replacements. Here, however, the Respondent
had taken on four project engineers that were not perma-
43 The engineering department organization charts (Resp. Exh. 54) show
that, for the months of September, October, November, and December, the
project engineering branch ran four employees over the authorized number
of seven.
44 In view of my finding herein, it is unnecessary to determine whether
Spear wculd have been entitled to fill other alleged job vacancies. Spear and
nent, and whom it had advised the Army it intended to
replace with permanent project engineers. No business
justification was given for not replacing one of the "acting"
project engineers with a qualified project engineer on his
unqualified offer to return to work, nor was any justifica-
tion given for not returning Mitchell and Thrasher to their
respective positions as senior military analyst and project
coordinator, the jobs for which they were hired, in order
that Spear and another qualified project engineer could be
reinstated. Hence, Spear was entitled to immediate rein-
statement on September 2, the date he made his uncondi-
tional offer to return to work. 44
5. Luther Briggs
Briggs started working for BDM Services Company in
December 1972 and worked as a systems engineer doing
photooptical support work at Fort Hunter Liggett until he
joined the strike on July 7. The record shows he was
scheduled to transfer to Zapex on July 21. On August 29 he
called Littou and offered to return. On September 3 he sent
a mailgram confirming the offer, and shortly thereafter
received a mailgram to the effect he had been replaced. By
letter and mailgram dated February 4, 1976, he was offered
employment as a systems engineer at a salary of $800 per
month, and on February 5 returned to work. 45 The record
shows that Briggs' experience with BDM Services Compa-
ny had been limited to photooptical work, and that he was
replaced by Garrick Rindler and Richard Woodcock who
were still working at the time of the hearing herein.46
The General Counsel contends that Briggs should have
been reinstated immediately or at various times when other
employees discussed below were either hired, quit, or
terminated.
Joseph A. Knight commenced working as a systems
engineer on September 8. While the record does not reflect
the date of his acceptance of employment, it discloses that
Knight lived in Phoenix, Arizona, at the time of his job
offer and acceptance, and that commencing September I
he received relocation funds pursuant to the Respondents'
"new employee relocation" policy, and thereafter received
additional funds pursuant to the policy while securing a
permanent residence. A written offer of employment was
sent him on Friday, August 29. As noted earlier, written
offers were not normally made until after oral job offers
had first been accepted. Further, the evidence shows most
written acceptances were signed after the employee had
actually commenced working 47 and, in Knight's case, he
signed the acceptance on September 3, obviously after his
arrival in California. Accordingly, it is found that Knight
had accepted permanent employment prior to the strikers'
offer to return to work. The General Counsel contends that
Briggs should have been hired to replace Knight after he
left on November 6. The record shows that Knight had
Rudd were the only experienced project engineers among the alleged
discriminatees.
45 His signature of acceptance on the offer letter is dated February 26,
1976.
46 Briggs had informed the General Counsel of his replacements.
47 See fn. 45.
1253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been involved in a solar power study which was completed-
and that he was not replaced.48
The General Counsel contends that systems engineer
Donald Romanzo was a temporary employee at the time
the strike ended, and that Briggs, Gibb, Lester, Rudd,
Slauson, or Spear should have been hired to replace him
immediately on the termination of the strike. On August 9,
Romanzo accepted an August 6 job offer and commenced
work on August 18. 49 He resigned effective September 12,
to accept another job. His letter of resignation, which bears
the date of August 8, reads:
I respectfully submit this letter of resignation from
employment by Zapex Corporation to be effective the
week ending Friday, September 12, 1975.
My reason for changing employment is solely related
to a substantial improvement in salary offered by my
new future employer.
Please withhold from my final paycheck travel
allowance advanced me upon my starting employment
with you in August.
Thus, from the dates appearing on the document it appears
that Romanzo resigned his employment the day before he
accepted employment, and 10 days before he commenced
working. I consider that fact highly unlikely, and from a
reading of the letter of resignation conclude that it was
written on September 8, and erroneously bears the August
date. In this regard, the last paragraph of the letter refers to
the "travel allowance advanced upon my starting employ-
ment with you in August." (Emphasis supplied.) Thus, it is
seen that the letter refers to events which have already
occurred - his receipt of a travel allowance upon his
starting to work. Accordingly, I find that Romanzo was not
hired as a temporary employee. 50 The record further shows
that in September the Respondents were overstaffed with
systems engineers and that Romanzo was not replaced.
The General Counsel contends that Respondents dis-
criminated against Briggs by hiring Robert Drake on
January 1, 1976. Drake was hired on January 30, 1976, as a
computer specialist and assigned to Task Force 605. None
of the alleged discriminatees was qualified to fill the
position for which Drake was hired.
The General Counsel contends that evidence of lack of
business justification for failure to reinstate Briggs and
other alleged discriminatees (including Gibb, Lester, Rudd,
Slauson, and Spear) is reflected by the Respondents' failure
to explain why he (or they) was not recalled after Leonard
Rice quit on September 1, Charles Naegeli quit on October
10, Frank Scruggs was fired on November 4, Edward
Murphy quit on November 5, or Michael Rak quit on
November 18. The exhibits show that, at the time Rice left,
the systems engineering branch employed 17 systems
engineers, with Knight (who had accepted employment
prior to the end of the strike) scheduled to report on
September 8. The authorized complement for the branch
was 15; hence, following the departure of Rice on Septem-
4s My findings regarding Knight are equally applicable to Gibb, Lester,
Rudd, Slauson, and Spear.
49 The offering letter states. "This offer is considered a permanent
position and it is not conditioned upon or affected by any resolution or
failure to resolve any current labor dispute."
ber I and Romanzo on September 12, the systems engi-
neering branch was still I over the authorized complement.
Anello testified that Rice was not immediately replaced
since Scruggs was doing the same work in which Rice had
been engaged. Exhibits and testimony show that neither
Naegeli, Scruggs, Murphy, nor Rak was immediately
replaced. Further, the record shows that the only systems
engineers hired following the end of the strike were strikers.
Thus, Lunsman was recalled on November 12 as a systems
engineer in anticipation of the departure of Steven Schielke
who had replaced Lunsman when the latter joined the
strike; 51 and Rudd and Lester were both recalled on
November 28, Briggs returned on February 5, 1976, and
Gibb declined an offer of reinstatement on February 10,
1976.
In his brief the General Counsel also contends that the
failure to explain why Briggs was not hired as a physical
scientist in place of Ruth Parry on September 9, in place of
Bernard Pardo on September 22, and as a research analyst
in place of Mary L. Woodyard on October 10 and John R.
Rader on October 14 is "additional evidence of Respon-
dents' lack of business justification for failing to reinstate
Briggs and the other systems engineers at an earlier date."
This position was not asserted at the hearing, nor was
testimony elicited regarding the qualifications or pay
categories for physical scientists or research analysts. The
organization charts show Parry, Pardo, Woodyard, and
Rader assigned to the experimentation support depart-
ment. The record does not disclose the comparative wage
scales between the experimentation support department
employees and the engineering department, nor the type of
work performed by the physical scientists and research
analysts so that a determination can be made as to whether
experimentation support department work is substantially
equivalent to that of systems engineers in the engineering
department. Accordingly, no merit is found in the General
Counsel's contention regarding the failure to recall engi-
neering department employees to replace experimentation
support department employees. 5 2
The General Counsel contended, for the first time in his
brief, that Briggs, Slauson, Lester, Gibb, or Spear should
have been hired to replace Donald Criley, who left
Respondents' employ on September 5. While no testimony
was elicited regarding Criley, a comparison of names and
job titles listed in General Counsel's Exhibit 52 with the
proposed staff assignments in General Counsel's Exhibit
5(b) shows that Criley was assigned as a mathematician. As
the record fails to show the qualifications, duties, or pay
rate for the mathematician, it is not possible to determine
whether that job is substantially equivalent to the engineer-
ing department jobs. Accordingly, no merit is found in this
contention by the General Counsel.
6. Lawrence Gibb
Gibb was hired by BDM Services Company in early 1973
and was scheduled for transfer to Zapex on July 14. At the
50 These findings are equally applicable to Gibb, Lester. Rudd, Slauson,
and Spear.
51 Schielke had expressed dissatisfaction with his salary, and the
Respondents expected he would quit shortly.
52 Briggs, Lester, Gibb, Sharon, Slauson, and Spear.
1254
ZAPEX CORPORATION
time he joined the strike on July 7, he was working as a
systems engineer. The staff assignments (G.C. Exh. 5(b))
disclose he was slated to be a systems engineer for Zapex.
Gibb failed to contact the Respondents following the end
of the strike; however, on September 3 the Union made an
unconditional offer to return on his behalf. On February
10, 1976, the Respondents sent Gibb a telegram offering
him a job as an engineer at $958.34 per month starting on
or before February 17, 1976. The telegram was sent to
Gibb's address at Jolon, California. On February 26, Gibb
sent the following telegram to Respondents:
I hereby accept your offer of employment with the
Zapex Corporation. However, I again request that the
monies owed me by BDM Services for 31.99 hours of
vacation and 33 hours of compensatory time be paid.
Your check number 1071 was returned on November
10 because of incorrect vacation hours. Please contact
me at route # 1, Box # 126, Lompoc, California 93436.
When this matter is corrected I will report to Ft.
Hunter Liggett as agreed.
By letter dated March 9, 1976, a check was sent to Gibb
who thereafter failed to report for work. It appears from a
form sent the Respondents on April 6, 1976, from the State
of California Employment Development Department, that
Gibb informed the department that he had declined
Respondents' job offer because "he could not commute
and would be forced to relocate after living in the Lompoc
area for 9 months." The department advised the Respon-
dents "as mentioned, this was only one reason, but this
alone would justify good cause to refuse this opportunity
for employment." (Resp. Exh. 51.) Thus, the Respondents
contend that Gibb had abandoned his employment. While
this evidence may be indicative of such an intent, the
matter was not explored in depth, and without more is not
sufficient to make a finding that Gibb abandoned the strike
and/or employment in the summer or fall of 1975.
The General Counsel contends that Gibb was qualified
for the communication technician position which Kim and
Soares were hired to fill in early October. Contrary to the
General Counsel's contention, Kim was not hired as an
electronic technician I, but was hired as an electronic
technician II. By April 1976, the date of General Counsel's
Exhibit 52,53 on which the General Counsel bases his
statement that Kim was an electronic technician I, Kim
had apparently received a raise as had a number of other
employees, including some of the alleged discriminatees.
However, Anello testified that Kim had been hired as an
electronic technician II, and his testimony is corroborated
by the organization charts, Respondents' Exhibits 51(g) -
(s). The rate of pay for an electronic technician II is $4.94
per hour, or $759.28 per month, and the rate for an
electronic technician III is $4.14 per hour or $636.32 per
month.54 While the record does not disclose the wage Gibb
was to have received had he not gone on strike, his offer of
reinstatement as a systems engineer was at a salary of
$958.34 per month, or the equivalent of $6.24 per hour
based on the Army manmonth. In view of the pay
53 The General Counsel's brief refers to G.C. Exh. 53, an obvious
typographical error.
differential (exceeding 20 percent between electronic tech-
nician II and systems engineer, and 33 percent between
electronic technician III and systems engineer), it is found
that the electronic technician II and III positions which
Kim and Soares were hired to fill were not substantially
equivalent to the job of systems engineer. New Era Electric
Cooperative, Inc., supra.
Regarding the General Counsel's contention that Ro-
manzo was a temporary employee, that Gibb could have
been hired 6 weeks earlier in lieu of hiring Robert Drake,
that he should have been hired to replace six systems
engineers, and in place of two scientists and two research
analysts, see the discussion regarding Knight, Romanzo,
Rice, Naegeli, Scruggs, Murphy, Rak, Parry, Pardo, Wood-
yard, Rader, and Criley in section D, 5, which is equally
applicable with respect to Gibb.
7. Boyd Lester
Lester was initially hired in 1973 and worked as a
systems engineer for BDM Services Company prior to
striking on July 7. He had been scheduled to start as a
systems engineer for Zapex on July 21. On August 29, he
called Littou and advised that he was ready to return to
work, and was told that Littou would get in touch with
him. By mailgram dated September 2, he confirmed his
unconditional offer to return. He was advised by mailgram
dated September 5 that he had been replaced. By letter and
mailgram dated November 28, Lester was offered, and
accepted, reinstatement as a systems engineer at a salary of
$1,208.33 per month.
With respect to the General Counsel's argument that
Lester should have been hired either in place of or
following the terminations of the following individuals, see
the discussions regarding those individuals in section D, 5,
which are equally applicable with respect to Lester: Joseph
Knight, Donald Romanzo, Edward Murphy, Charles
Naegeli, Leonard Rice, Frank Scruggs, Michael Rak, Ruth
Parry, Bernard Pardo, Mary L. Woodyard, John Rader,
and Donald Criley.
8. William Rudd, Jr.
Rudd was hired initially in 1971 and had worked for
BDM Services Company as both a project and systems
engineer at Fort Hunter Liggett. He was scheduled for
transfer to Zapex on July 7 as a systems engineer, and
worked for Zapex for 4 hours on that date before joining
the strike. On August 29 he called Littou and stated he was
requesting unconditional return to work. The request was
renewed by mailgram on September 2. On September 3, he
received a telegram stating he had been replaced. While
Rudd lacked an engineering degree, it appears he had
broad experience in the radar and electronics field and was
considered by the Respondents to be a "very good"
engineer. By both telegram and letter dated November 28,
" Based on the Army definition of a manmonth consisting of 153.7
manhours.
1255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rudd was advised that he was being reinstated as a systems
engineer at a salary of $1,433.34 per month, 55 the same he
earned prior to the strike, and asked to report on December
1, which he did.
The General Counsel contends that Rudd should have
been reinstated in lieu of hiring Weston Kornemann as a
project engineer on September 2, or Joseph Knight as a
systems engineer on September 8. The record shows that
the Respondents customarily sent out offer letters after a
verbal offer had been accepted. The offer letter to Korne-
mann was sent on or about August 15, and he reported for
work on September 2. I conclude from this evidence that
Kornemann accepted a job prior to the August 29 end of
the strike and offers to return to work. Regarding Knight,
as previously found, 56 Knight, who lived in Phoenix,
Arizona, was sent an offer letter on Friday, August 29. In
all probability he never received that letter since an
acceptance letter was not signed by him until September 3,
after his arrival in California. However, he commenced
receiving relocation funds pursuant to the Respondents'
"new employee relocation" policy commencing September
1, and thereafter received additional funds pursuant to that
policy while securing a permanent residence. These facts
convince me that Knight accepted the position prior to the
end of the strike, and proceeded on September I to move to
California based on an earlier oral offer and acceptance
which was confirmed in writing after his arrival in
California. 57
Regarding the General Counsel's contention that Rudd
should have replaced Donald Romanzo, and should have
been recalled when other systems engineers (Rice, Naegeli,
Scruggs, Murphy, and Rak) quit their employment on
various dates between September I and November 18, see
my discussion under Luther Briggs.
The General Counsel contends that Rudd "was quali-
fied, if not overqualified, for numerous technician positions
which were vacant prior to his reinstatement," and Re-
spondents had no excuse for not offering such a position to
him. The technician jobs referred to are all in the electronic
technician I, II, and III pay categories. As noted above,
Rudd's rate of pay as systems engineer was 39 percent, 47
percent, and 55 percent higher, respectively, than electronic
technician categories 1, II, and III. On the basis of New Era
Electric Cooperative, Inc., supra, I find those jobs not
substantially equivalent to that of systems engineer.
The General Counsel contends that Rudd should have
been hired in place of associate engineer Timothy Cook,
who commenced working on September 2. As noted in
section D, 1, an offer letter had been sent to Cook on
August 18 and he commenced working on September 2.
Having credited the testimony of Phillips that offer letters
were not normally sent until a verbal offer had been made
and accepted, and noting the time lag between August 18
and September 2, I conclude and find, as earlier, that Cook
accepted the associate engineer job prior to the end of the
strike, and reported for work on September 2. Further-
55 Based on the Army manmonth figure, Rudd's rate of pay was $9.32
per hour, or 39 percent higher than the rate for electronic technician 1, 47
percent more than electronic technician II, and 55 percent higher than
electronic technician Il1.
86 See analysis in sec. D,5.
57 It does not appear to have been unusual for an employee to have
more, while the record does not reflect the salary Cook
received as an associate engineer, Sharon's salary offer as
an associate engineer was $1,100 per month, or 23 percent
less than Rudd's salary as a systems engineer,58 leading to
the conclusion that an associate engineer salary is not
substantially equivalent to that of Rudd's systems engineer
salary.
As noted, Rudd had worked for BDM Services Company
as a project engineer at Fort Hunter Liggett and was
considered by the Respondents as a "very good" engineer.
In considering the recall rights of Spear, it was found that,
when the strike ended on August 29, the Respondents
employed four "acting" project engineers, Wince, Sweeney,
Thrasher, and Mitchell, whom it intended to replace with
permanent project engineers. As in the case of Spear, no
business justification was given for not replacing one of the
"acting" project engineers with Rudd, a qualified project
engineer, on his unconditional offer to return to work, nor
was any justification given for not returning Mitchell and
Thrasher to their respective positions as senior military
analyst and project coordinator, the jobs for which they
were hired, in order that Rudd and Spear could be
reinstated. Therefore, I find that Rudd was entitled to
immediate reinstatement, at the time he made an uncondi-
tional offer to return.
9. William Slauson 59
Dr. Slauson, whose educational background included a
B.S. in physics and a Ph.D. in electronic engineering (solid
state physics), commenced working for BDM, Inc., in 1973
as a senior engineer. His transfer to Zapex was scheduled
to take place on July 7. From his following letter to Zapex
dated September 2, received September 3, it appears he
became a striker on July 9:
I wish to return to work for Zapex Corp. and be
reinstated as a senior engineer in the Long-Range
Planning Branch, the position which I held before I
withheld my services to Zapex Corp. from July 9 to
September 1, 1975, in sympathy with and support of
issues underlying the IBEW strike. I am ready to report
to work immediately. I expect no lesser duties, salary,
and benefits (including those accrued before July 9,
1975) than I executed or received before July 9. My
return to work should not be construed by Zapex Corp.
or any other party in any way involved in the Local
2182 IBEW strike to imply that I waive any rights
which I may have under Federal and State Labor
Codes.
On November 1, in an appeal from a decision by an
administrative law judge from the California Department
of Employment Development, disqualifying Dr. Slauson
from certain unemployment benefits, he stated in pertinent
part:
signed an acceptance letter until after starting work. Horrell returned to
work on February 19, 1976, and signed an acceptance letter on March 3,
1976. Briggs returned to work on February 5 and signed an acceptance letter
on February 26, 1976.
58 Barela's salary as an associate engineer was $1,058.33 per month.
59 Dr. Slauson did not testify.
1256
ZAPEX CORPORATION
I did not cross the picket lines to go to work on and
after July 9, when the lines were established at Fort
Ord, and honored this line until August 29 when I
initiated my requests to return to work. During my
absence in July my duties were assumed by Warren
Belfer, a Zapex Corp. employee, who was employed
before the dispute. Mr. Belfer now performs a major
part of my duties; my working files were transferred
completely to his control by early September. On July
21 Mike Licata began working for Zapex Corp. as a
long-range planning engineer, thus filling the vacancy
in this group due to my absence and becoming the
fourth such engineer required of Zapex Corp. by Army
contract DAAG08-75-C-0105. Mr. Licata is still em-
ployed in this position.
Though I was not formally notified that I had been
replaced until Zapex Corp. responded to my request for
reinstatement on September 2, I claim that I was
replaced effectively July 21 when Mr. Licata began
work and by which date Mr. Belfer had assumed most
of my duties ...
On December 11, Dr. Slauson advised the Respondent
that he had accepted a job with another employer and that
"This letter releases the BDM Corp. and its subsidiary
Zapex Corp. from any obligation to reinstate me now or in
the future...." Nevertheless, by letter and telegram
dated February 20, 1976, the Respondents offered Dr.
Slauson a job as senior engineer at a salary of $1,500 per
month, which he declined by letter dated February 24,
1976, wherein he reiterated his resignation of December
1.60
The General Counsel contends that Dr. Slauson's educa-
tion and experience qualified him for a position as a project
engineer, a systems engineer, or a physical scientist,
claiming specifically he should have been hired in Septem-
ber in place of physical scientists Ruth Parry and Bernard
Pardo, and that he could have been immediately reinstated
as a project engineer in place of Sweeney, Thrasher, Wince,
or Mitchell, who, the evidence shows, were "acting project
engineers" whom the Respondent intended to replace with
project engineers.6
It is clear from the record that the Respondents, in their
February technical proposal in response to the Army's
RFP, proposed the employment of four long-range plan-
ners (G.C. Exh. 3), and in its July 9 letter to CDEC, listed
the long-range planners as R. A. King, Dr. Slauson, W. B.
Belfer, and R. L. Grimmer. 62 The record further shows
that, after Dr. Slauson joined the strike, M. J. Licata was
hired as a senior engineer on July 21 and assigned to long-
range planning.6 3 Anello testified that Licata was hired as
Dr. Slauson's replacement. No new long-range planners
were hired, although it appears from the organization
60 Dr. Slauson had accepted a position with Texas Instruments com-
mencing December 29.
6t See discussion D, 4.
62 See also G.C. Exh. 5(b).
63 The General Counsel appears to contend, on the basis of a December
19 letter from the contracting officer (Resp. Exh. 28), that Respondents
should have employed eight long-range planners. As noted herein, the
Respondents' technical proposal included employing four in that position,
and it did so at all times after Licata was hired. In the absence of some
showing in the record that the Respondents were obligated to employ four
charts (G.C. Exh. 5(g)) that L. C. Keene was transferred
from the leadman position in the systems engineering
branch to the leadman position in the long-range plans
branch.6 4 The date of his transfer from the systems
engineering branch to the long-range planning branch is
not disclosed; however, the organization chart for the
engineering division for November (G.C. Exh. 5(f)), which
was submitted to the Army on December 15, bears the date
of December 8, and Respondents' Exhibit 54(h), bearing
the date of December 11, show Keene still the leadman in
the systems engineering branch, indicating to me that
Keene was not transferred to long-range planning until the
latter part of December. In the meantime, on December I 1,
Dr. Slauson submitted his resignation. In sum, I find that
Dr. Slauson was replaced by Licata on July 21, and had
resigned his employment by the time an addition was made
to long-range planning.
As noted earlier under the discussion on Luther Briggs,
at the hearing the General Counsel did not contend that
any of the alleged discriminatees should have been hired to
replace physical scientists Ruth Parry or Bernard Pardo,
research analysts Mary L. Woodyard and John H. Rader,
and mathematician Donald Criley, and no testimony was
proffered by either the General Counsel or Respondents
regarding their qualification, duties, pay categories, etc.,
from which it is possible to make a finding as to whether
any of the alleged discriminatees should have been offered
jobs in their places. Accordingly, I again find no merit in
the General Counsel's contention. I find further, for
reasons stated earlier, that the positions of expediter,
property control clerk, tape certifier technician, and elec-
tronic technicians 1, II, and III are not substantially
equivalent to Dr. Slauson's job as senior engineer in long-
range planning.
Regarding the General Counsel's position that Dr.
Slauson should have been hired as a systems engineer or a
project engineer, it has been established that the only
systems engineers hired between the end of the strike and
his resignation in December were strikers, Lunsman on
November 12 and Rudd and Lester on November 28.
Further, Anello testified without contradiction that Dr.
Slauson had never worked as either a systems or project
engineer. In these circumstances, I find no merit in the
General Counsel's contention.as
10. Gan Y. Mak
Mak was hired in 1971, is classified as a senior scientific
programmer, and became a striker on July 7 prior to his
scheduled transfer from BDM Services Company to Zapex
on July 21. On Tuesday morning, September 2, Mak called
Littou and offered to return to work the following day. The
offer was reconfirmed by mailgram the same day, and on
additional long-range planners, I conclude that the contracting officer was
mi error.
84 G.C. Exh. 53 shows Keene was hired initially in February 1974 as a
senior engineer and was transferred to Zapex on July 1.
a Had Rudd been reinstated as a project engineer immediately following
his unconditional offer to return, as I have found he should have been, my
conclusions regarding Dr. Slauson's right to recall would not be different in
light of the uncontradicted testimony that he had never worked as a project
engineer, and for the further reason his offer to return to work was limited to
his former job as a senior engineer in the long-range planning branch.
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 9 he was informed by mailgram that he had
been replaced. On October 28, Cline wrote a letter offering
Mak a position as senior scientific programmer at a salary
of $1,100 per month, but sent the letter to an old address.
Mak never received the letter and, on November 7, Cline
wrote again withdrawing the offer since Mak failed to
respond. However, on November 10, another offer letter
was sent to Mak at the correct address, and on November
12 he accepted the offer. In early 1976 he received a salary
increase.
The General Counsel contends that Mak should have
been reinstated immediately on his September 2 offer to
return to fill the vacancy created when mathematician
Daniel L. Brown left on August 22. He contends further
that Mak should have been reinstated immediately to
replace Daniel C. Plunkett and Alberta Frees, program-
mers who left Respondents' employ on August 8 and 10,
respectively, and to replace scientific programmers Garry
Day and Daniel M. Milani who left on October 10 and 29,
respectively. He also contends that Day should have been
called to replace P. G. Slater who left on October 24.
While the General Counsel asserts that Mak should have
replaced mathematician Daniel L. Brown immediately on
his application to return on September 2, no evidence was
proffered regarding the duties, pay categories, etc., of the
mathematician from which it is possible to make a finding
Systems Experinentation Analysis
Prograning Progra-ming Support
Aug. 6 7
Sept. 6 6 (Day
Oct. 7 6/ 6
Nov. 7 7 (alk
Dec. 7 7
While Day is shown in Respondents' records as a senior
scientrfic programmer, Anello testified Day had prior
systems programming experience, that at the time of his
resignation he was working as a systems programmer, and
that, after his resignation, a portion of that work was
picked up by newly hired senior systems programmer
Crockett. Although I am unable to determine from the
organization and matrix charts the exact nature of the work
Day was performing at the last, systems or scientific
programming, the matrix chart for August (G.C. Exh. 5(c))
shows him devoting all of his time to two projects for which
senior systems programmer Slater was responsible. Further,
it is noted that the individual hired after Day's departure
was senior systems programmer Crockett, which brought
the systems program branch up to its authorized strength
of seven. Moreover, the Respondents' initial attempt to
se The General Counsel mistakenly states in his brief that the Respon-
dents employed no mathematicians after Brown left on August 22. G.C.
Exh. 3 lists D. R. Mar, whose title in G.C. Exh. 52 is statistician, as a
mathematician assigned as group leader, mathematics and statistics group.
G.C. Exh. 52 lists at least five other statisticians. See also G.C. Exh. 53
listing D. F. Criley as a mathematician, methodology group.
e7 The Respondents employed four levels of programmers: senior
systems programmers, senior scientific programmers, scientific program-
mers, and programmers.
ss Personnel organizational charts were prepared sometime after the first
part of the succeeding month.
as to whether or not the job of mathematician is substan-
tially equivalent to that of a senior scientific programmer.86
There was no testimony regarding Plunkett. Testimony
regarding Frees was to the effect that she had resigned
around August 10, that she was a programmer which is the
lowest level of skill among the several kinds of program-
mers, and that Mak "probably could" have been trained to
do the job she had done.6 7 No additional evidence was
offered from which a determination can be made as to
whether the job of programmer is substantially equivalent
to that of senior scientific programmer.
Day was listed in the technical proposal as one of five
senior scientific programmers along with Mak, Sparkman,
Atkinson, and Mann. Bradford, Plunkett, Milani, and
LeVan were listed as scientific programmers, and Frees
and Alvan as programmers. There were seven senior
systemn programmers listed; those scheduled to be on
board as of July 31 were Antonucci, Beadell, Gant, Hays,
Slater, McCarten, and Niemoller. The personnel organiza-
tion charts (G.C. Exhs. 5(d) - (g)) show that the ADP
software division, headed by H. L. Johnson, was divided
into three branches, systems programming, experimenta-
tion programming, and analysis support. The numbers of
employees in each branch for the months of August
through December were as follows: 68
Mgr. Total
19
18
18
19
19
5 1
! gone) 5 1
4 (MUlani left 1
Oct. 29)
k back) 4 70/ 1
4 (Weaver gone) 1
recall Mak by letter dated October 28, albeit sent to the
wrong address, coincides with the departure of Milani and
convinces me that Mak was hired to fill the vacancy
created by Milani's departure which brought the strength
of the division back to its authorized strength of 19.
Accordingly, I find no merit in the General Counsel's
contention that Mak should have been recalled upon Day's
departure.
The General Counsel also contends that Mak should
have been recalled to fill the vacancy created by Slater's
departure on October 24. While Slater is listed in General
Counsel's Exhibit 53 as a senior scientific programmer, the
Respondents' proposal in response to the Army RFP lists
him as a senior systems programmer, and he was assigned
to the systems program branch of ADP software division.
Accordingly, it is found that he was a senior systems
Us Senior systems programmer Crockett, who commenced working
November 3, is listed in the October report. The ADP software division
October report shows a date stamp of November 7. The report also shows
Milani gone (as of October 29) and Antonucci, the supervisor in systems
program branch, as acting supervisor in analysis support branch. The
General Counsel does not contend, nor does the evidence show, that Mak
was qualified as a senior systems programmer.
70 An asterik alongside his name undoubtedly indicates Dr. Weaver was
scheduled to transfer out of Analysis Support soon; thus, his name is
missing from the December report, which brings the department hack to its
authorized strength of 19.
1258
ZAPEX CORPORATION
programmer and that it was not shown that Mak had the
qualifications to replace him as a senior systems program-
mer.
11. Clyde Varney
Varney was hired initially in 1972 and worked for BDM
Services Company as an associate electronic engineer in
the ED lab. He was scheduled to transfer to Zapex on July
21; however, he became a striker on July 7. On August 29,
he called Littou and stated he was ready to return to work
and was told his name would be placed on a list and he
would be contacted. On September 3, he sent Respondents
a mailgram making an unconditional offer to return, and
on September 6 received a mailgram that he had been
replaced. By letter dated October 9, Varney was offered
and accepted a position as a radar technician at the
electronic technician II rate of pay of $4.94 per hour, 6
cents less than he had earned as an associate engineer with
BDM Services Company prior to the strike. In March 1976,
he was promoted to electronic technician I and received a
raise in pay to $5.67 per hour, 67 cents more than he had
made as an associate engineer prior to the strike.
The General Counsel contends that Varney should have
been reinstated into at least nine openings in four classifi-
cations prior to his reinstatement, including four radar
technician vacancies as of September 3 in the ra-
dar/DARS/CDL section of IMO. He also contends that
Varney should have been hired as an associate engineer in
the prototype development and fabrication support branch
of the engineering department in place of new hires
Timothy C. Cook and Milton Brown and to replace A.
Nichta who failed to show up. He contends further that
Varney could have been reinstated immediately to two
positions in the RMS/DFS section of IMO, one in place of
Jeffrey V. Johnson who was hired September I. In
addition, he contends that Varney should have been hired
to fill the two communications technician positions for
which Soares and Kim were hired in early October; as an
electronic technician in the instrumentation support sec-
tion of IMO in place of Dennis Wilson, in place of Larry
Motherwell, 7' and to replace Thomas and Haney 7 2 on
September 15 and Charles Harris as property control clerk
on September 26.
Regarding the General Counsel's contention that Varney
should have been hired immediately to fill a vacancy in
radar/DARS/CDL section of IMO, Respondents' Exhibit
53(a) shows that as of September 3 this section had an
authorized complement of nine and an actual complement
of six, with W. H. Roberts, an electronic technician 111,
scheduled to terminate on September 5. On September 5,
striker Arthur C. Hull was offered reemployment as an
electronic technician II, the only employee hired into this
section prior to the recall of strikers Varney as an
electronic technician II and Hadveck as an electronic
technician I on October 9. Moreover, those three strikers
were the only additions to the section until February 1976.
While the authorized strength in the section was nine,
Anello testified without contradiction that Varney and
71 Motherwell was hired specifically because of his expenence with the
GE 605 computer while employed by Bell. Varney had no experience on the
GE 605.
Hadveck were recalled as soon as there was a need for
radar technicians.
The technical proposal to the RFP (G.C. Exh. 3) lists
both Varney and Hadveck as radar technicians in the
radar/DARS/CDL section. In a supplement to the propos-
al (G.C. Exh. 53), Varney is listed as a laser technology
technician in RMS/DFS section, while Hadveck is again
shown as a radar technician in radar/DARS/CDL. In the
June 26 personnel assignments list showing proposed staff
assignments for July 15 (G.C. Exh. 5(a)) Varney is again
listed as a laser technology technician and Hadveck as a
radar technician. In the July 9 personnel assignments lists
showing proposed staff assignments for July 31 (G.C. Exh.
5(b)), Varney is listed as one of six associate engineers who
are listed in the technical proposal as being assigned to the
PDFS branch of instrumentation. Hence, I conclude that
the Respondents considered Varney qualified as a radar
technician, a laser technology technician, and as an
associate engineer in PDFS. For reasons set forth in my
analysis in section D, 3, I1 have found that both Cook and
Brown had accepted permanent employment prior to the
striker's offers to return to work; that Nichta had orally
accepted a position as associate engineer by September 2,
but failed to report on that date; that on September 2 the
Respondents employed and had on board eight associate
engineers in PDFS, which was the authorized number;
that, with the addition of Cook and Brown, the section was
overstaffed, and that the only additional person added to
the section was striker Barela in early October. (See and
compare Resp. Exh. 54 and G.C. Exhs. 5(c) - (f).)
Therefore, no merit is found in the General Counsel's
contention regarding the Respondents' failure to reinstate
Varney to the PDFS section.
The General Counsel contends that two openings were
available in the RMS/DFS section of IMO to which
Varney should have been reinstated, one filled by Jeffrey
V. Johnson on September 1. The evidence shows that an
offer letter was sent Johnson on or about August 15 and
that he commenced working on September 1. As oral
acceptances were customarily obtained before mailing an
offer letter, I conclude Johnson had accepted employment
prior to the strike end. Thus, one opening remained in
RMS/DFS which was filled by striker Eugene T. Wiggins
who was recalled on September 5 and reported for work on
September 8. As Wiggins and Varney enjoyed equal status
of strikers, Respondents would derive no advantage in
selecting one over the other on the basis of their past
activities. Accordingly, I find no merit in the General
Counsel's contention Varney should have been reinstated
in the RMS/DFS section.
Robert Kim retired from the Air Force on August 31,
having had extensive communications experience in the
armed service. J. E. Soares retired from the Army on
September 30, having been a master sergeant in DCSI at
Fort Hunger Liggett, also having had extensive communi-
cations experience in the armed service. Anello testified
that in the fall of 1975 an outside contractor was to install a
new range communication system at Fort Hunter Liggett,
72 See discussion of Haney in sec. D, 3, wherein I found that Haney's job
no longer exists.
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Company was in need of competent communica-
tions technicians to operate the new system upon its
delivery. He testified that three strikers were competent to
perform that work: Rudd, Gibb, and Varney. As Rudd and
Gibb commanded substantially higher pay than the Re-
spondents were willing to pay for that type work, neither
was recalled. Anello testified that Varney had already been
recalled; however, the evidence convinces me that about
this time the Respondents were in the process of recalling
Varney to a radar technician job for which he was better
qualified. Therefore, the Respondents hired Soares and
Kim who commenced work on October 6, and on October
9 recalled Varney to a job for which he was better
qualified. In these circumstances, I find no merit to the
General Counsel's contention that Varney should have
been hired in the place of Soares and Kim.
As explicated in section D, 3, Dennis Wilson was hired
while he lived in Alhambra, California, and received
relocation funds pursuant to the Respondents' "new
employee relocation" policy commencing on August 29,
and thereafter received additional funds pursuant to that
policy while securing a permanent residence. Had Wilson
not been hired prior to August 29, he would not have been
entitled to receive relocation expenses for that date. As
more fully set forth in section D, 3, I am convinced and
find that Wilson was hired prior to the end of the strike and
offers to return.
It was not shown that Varney possessed the requisite
experience necessary to perform the job of expediter filled
by Gowin on October 1. For that reason, and as the
expediter is not within the unit sought to be represented by
the Union, the General Counsel's contention that Varney
should have been hired in Gowin's place on October I is
without merit. As the position of property control clerk is
not substantially equivalent to that of an electronic
technician II, the position to which Varney was recalled -
a differential of 29 percent in pay - the Respondents were
under no obligation to offer Varney the job of property
control clerk in place of Harris or Roof. No evidence was
offered regarding Kershner who had been employed as a
digital electronic technician in RMS/DFS and who left
Respondents' employ on August 29. It appears, however,
that striker E. T. Wiggins was recalled on September 5 and
reported on September 8 as a digital electronic technician
in that section. As between strikers, the Respondents would
derive no advantage in selecting one over the other, unless
the advantage rested on qualifications. I therefore find no
merit in this contention of the General Counsel.
12. C. W. Hadveck 73
Hadveck is a radar technician who started his employ-
ment with a BDM affiliate in October 1971, was scheduled
to transfer to Zapex on July 14, but joined the strike at its
inception. His offer to return following the strike was
through the Union's letter of September 3.
Anello testified that in early October the Respondents
had a need for radar technicians, and by letters dated
October 9 recalled both Varney and Hadveck, the latter as
73 Hadveck was not called to testify.
"4 He resigned on December 2.
an electronic technician I at $5.67 per hour, and assigned
both to radar/DARS/CDL.74 He commenced working on
October 15.
The General Counsel contends that Hadveck was quali-
fied as a radar technician, an installation technician, and as
an associate engineer in the PDFS, and that he should have
been reinstated immediately to four openings in ra-
dar/DARS/CDL; that he should have been hired as an
associate engineer in the PDFS branch in place of Milton
Brown and to replace Nichta who failed to report on
September 9; to replace William P. Kershner who left on
August 29, W. H. Roberts who terminated September 5; in
place of Dennis Wilson, Lawrence Gowin, and Larry
Motherwell; and to replace Thomas N. Haney and Gerald
W. Roof. The status of each of these individuals has been
considered in relation to Varney's recall rights, and my
conclusions in Varney's case are equally applicable to
Hadveck. Accordingly, I find no merit in the General
Counsel's contentions regarding the failure of Respondents
to recall Hadveck prior to October 9.
13. Robert Salczynski
Salczynski was first employed by a BDM affiliate in
1971, was scheduled to transfer to Zapex on July 14, but
instead joined the strike on July 9. He was slated to be the
lead technician in the field support section of IMO. On
July 14, Salczynski and fellow striker L. G. Lambert talked
to Dupere in his office at Fort Hunter Liggett and stated
they were ready to go back to work; however, they changed
their minds and rejoined the strike because they felt they
were "being treated like a second class citizen" because
Littou had asked them to stay in the deputy field offices
(Army) area and "not move around the premises." On or
about August 29, Salczynski went to Fort Ord and advised
Phillips he was ready to return. The offer was confirmed by
mailgram dated September 2. On September 6 he received
a mailgram to the effect that he had been replaced. On
February 17, 1976, he received a telegram offering him a
job as an electronic technician I at $5.67 per hour. By
telegram dated February 23 he informed the Respondents
that he "cannot accept offer... NLRB calls for reinstate-
ment not less benefits or pay." 75
Apparently conceding Salczynski was replaced by asso-
ciate engineer J. F. McComas as the leadman in the field
support section of IMO, the General Counsel contends that
Salczynski should nevertheless have been recalled to
replace McComas who received a job-related back injury
in September, was on sick leave and operated on in
October, returned to work on an undisclosed date, was
operated on a second time in January 1976, and had again
returned to work on an unspecified date which was prior to
the hearing in this matter. No new employee was hired to
replace McComas during either of his absences because of
surgery. Instead, he was temporarily replaced by Feliciano
during his first absence, then by J. H. Reno, an electronic
technician I in the same section, and later by Donovan
Palmer, the lead technician in the RMS/DFS section. At
no time was there any doubt regarding the fact that he
75 Prior to his scheduled transfer to Zapex, Salczynski had received $6.89
per hour as an associate engineer.
1260
ZAPEX CORPORATION
would return. Citing Ace Drop Cloth Co., Inc., 178 NLRB
664, 669 (1969), the General Counsel contends, apparently,
that upon receipt of a letter dated January 7, 1976, from a
doctor to the effect that McComas was scheduled for his
second surgery on January 8, 1976, and would be totally
disabled from working until about July 1, 1976, that
Salczynski should have been reinstated immediately to
replace McComas as acting leadman in the field support
section. While in retrospect the General Counsel's sugges-
tion could have been followed, the issue is whether the
Respondents were legally obligated under the circum-
stances to have done so. In Ace Drop Cloth, an employee
left work because of pregnancy with the understanding that
she would be gone for about 9 months, but "could return to
work thereafter" when she arranged for the care of her
child. The Trial Examiner noted there was a "substantial
possibility" that she would never return, which actually
occurred. Instead of recalling a striker, the company hired
a new and completely inexperienced employee as her
replacement. It was in these circumstances that the Trial
Examiner, affirmed by the Board, found that the company
was obligated to offer the vacancy to the striker. The
instant case, in my view, is clearly distinguishable in that
no new employee was hired to replace McComas, he was
replaced temporarily by experienced personnel, he was
considered by the Respondents to be an employee at all
times,7 6 and there was never any doubt about his returning
to work. Moreover, he appears to have returned to his job
far earlier than the doctor had predicted. In these circum-
stances, I find the Respondents were not legally obligated
to recall Salczynski as a replacement for McComas during
his temporary absences for surgery.
The General Counsel contends that Salczynski should
have been reinstated immediately in PDFS in place of
Timothy C. Cook and Milton Brown and to replace A.
Nichta who failed to start work on September 9. He
contends two openings were available in the RMS/DFS
section of IMO, one filled by Jeffrey V. Johnson on
September 1, and another vacancy in the instrumentation
support section which was filled by Dennis Wilson. In
addition, he argues that Salczynski could have been
reinstated in place of hiring Larry Motherwell, 77 Lawrence
Gowin, and Gerald Roof, and upon the departures of
William R. Kershner, Thomas N. Haney, 78 Francis R.
Hertz, Robert Runyon, and Charles Harris.
See section D, 11, regarding reinstatement to: (1) PDFS
(Cook, Brown, and Nichta); (2) RMS/DFS (Johnson); (3)
instrumentation support section (Wilson); and (4) to
replace Roberts, Kershner, and Gowin, all of which are
equally applicable to Salczynski. As found in earlier
sections, the job of property control clerk (Harris and
Roof) paying $3.53 per hour is not substantially equivalent
to the job of associate engineer formerly held by Salczyn-
ski.
Hertz, an electronic technician 11, worked as a laser
technician in RMS/DFS.7 9 He resigned effective Novem-
76 See organization charts for months of January and February 1976,
G.C. Exhs. 5(g) and (h) and Resp. Exh. 53.
"7 As noted before, Motherwell was hired specifically because of his
experience with the GE 605 computer while employed by Bell. Salczynski
had no experience with the GE 605.
78 See discussion of Haney in sec. D, 3, wherein it was found that
Haney's job no longer exists.
ber 13. Salczynski was classified as an installation techni-
cian, and the evidence fails to show he was qualified as a
laser technician. Further, it does not appear from the
record that Hertz was replaced. 8 0 For these reasons, and as
electronic technician II is not substantially equivalent to
associate engineer, no merit is found in the General
Counsel's contention Salczynski should have been hired to
replace Hertz. See the discussion in section D, 2, regarding
Runyon, which is equally applicable to Salczynski. The
record shows no new employees were hired in either ED or
PDFS following Runyon's departure until the reorganiza-
tion in January 1976 and an increase in the staff size was
authorized, at which time Horrell was reinstated. Accord-
ingly, the General Counsel's contention regarding Salczyn-
ski's right to recall to replace Runyon is rejected.
14. Craig Shields
Shields was first employed by a BDM corporation in
1971 and was slated to transfer to Zapex on July 14;
however, he joined the strike on July 7. Prior to the strike
he was employed by BDM Services as an associate
engineer in the ED lab at Fort Hunter Liggett, earning
$6.40 per hour. His personnel category was installation
technician. During the afternoon of August 29, Shields
called Feliciano and stated he would like to return. He
testified that Feliciano responded, "Boy, we need you." '8
He next called Littou who said his name would be put on a
list and he would be contacted the following week. On
September 2, Shields confirmed his offer to return by
mailgram, and on September 6 received a mailgram
advising him of his replacement. On February 23, 1976,
Shields accepted a job with another employer, and on
February 26 he refused the Respondents' February 19 offer
of a job as an electronic technician I paying $5.67 per hour.
As with Salczynski, the General Counsel contends
Shields should have been reinstated immediately in PDFS
in place of Cook and Brown and to replace Nichta who
failed to report for work on September 9; that there were
two openings available in RMS/DFS section of IMO, one
filled by Johnson on September 1; that there was another
vacancy in the instrumentation support section for which
Wilson was hired; that he should have been reinstated in
place of hiring Motherwell, Gowin, and Roof, and upon
the departure of Kershner, Haney, Harris, Hertz, Runyon,
and Roof.
See section D, 11, regarding reinstatement to: (1) PDFS
(Cook, Brown, and Nichta); (2) RMS/DFS (Johnson); (3)
instrumentation support section (Wilson); and (4) replace
Roberts, Kershner, and Gowin, all of which are equally
applicable to Shields. As found in earlier sections, the job
of property control clerk (Harris and Roof) pays $3.53 per
hour and is not substantially equivalent to the job of
associate engineer formerly held by Shields.
Hertz, an electronic technician II, worked as a laser
technician in RMS/DFS and resigned November 13.
79 G. C. Exh. 5(1).
80 See discussion of Hertz in sec. D, 3.
81 It was not contended that Feliciano exercised any personnel or hiring
authority.
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Shields was classified as an installation technician,
his resume, General Counsel's Exhibit 4, discloses he had
some experience with lasers. It does not appear from the
record, however, that Hertz was replaced.82 Moreover, the
job of electronic technician II, paying $4.94 per hour, is not
substantially equivalent to the associate engineer job
paying $6.40 per hour, a differential of 23 percent, which
Shields had prior to the strike. I find, therefore, that the
claim that Shields should have been recalled to replace
Hertz is without merit. As the record establishes no new
employees hired in either ED or PDFS following Runyon's
departure until after the reorganization in January 1976
following authorization for an increase in staff size, at
which time Horrell was reinstated, no merit is found in the
General Counsel's contention that Shields should have
been recalled to replace Runyon.
15. Gerald Schmidt
Schmidt, who had worked for Bell, was interviewed on
June 18 and hired by Respondents as a maintenance
mechanic IV, refrigeration, at $5.04 per hour. He com-
menced working for Zapex on July 2, worked 2 days, and
then went on vacation until July 14 when he reported back
to the jobsite but declined to work because of the strike. On
August 28, he told Littou at Fort Hunter Liggett that he
was ready to go back to work. Littou stated he would have
to get in touch with Fort Ord and would contact him on
August 29. Unable to talk to Littou on August 29, Schmidt
contacted him personally on September 2 and was in-
formed there were no openings then but, if one opened up,
they would call him. On April 2, 1976, Gary Patchett, a
maintenance mechanic II, refrigeration, departed from the
Respondents' employ, and on April 5, 1976, Zapex sent
Schmidt both a letter and mailgram offering him immedi-
ate employment as a maintenance mechanic IV, refrigera-
tion, paying $5.04 per hour.8 3 Accordingly, he commenced
working in that capacity on April 8, 1976.
The General Counsel contends that there were several
job openings for which Schmidt was qualified, "The most
obvious opening is evidenced by the fact that Respondents
offered a person by the name of W. Sichert a position as an
electrician on or about September 15 . . ." making refer-
ence to Respondents' Exhibits 53(c) and (d), the organiza-
tion charts prepared by Phillips. Respondents' Exhibit
53(d), prepared on September 15, lists "W. Sichert G. M.
Mech. IIl, Electr" as the 12th name under the mechani-
cal/electrical section, which indicates both an authorized
and actual complement of 11 employees. On the next
exhibit, Respondents' Exhibit 53(e), Sichert's name is
deleted and the section continues to list II employees as
the actual and authorized complement. I have carefully
searched the transcript and can find but one reference to
Sichert. At page 1690, Respondents' attorney asked Phil-
lips, who prepared the chart: "Do you know whether
Sichert ever showed up for work?" The response: "I think
he did not." With respect to the preparation of the charts,
Phillips testified he listed names in the areas he thought
individuals would work, but that he was not necessarily
e2 See discussion of Hertz in sec. D, 3.
83 Maintenance mechanic IV is a higher classification than maintenance
mechanic II.
correct, and that he sent the charts to the department chiefs
for, hopefully, correction. The fact that Sichert's name is
deleted from the chart indicates the obvious, that Phillips
had been in error with respect to Sichert. In fact, General
Counsel's Exhibits 53(a) - (y) show that no general
maintenance mechanics, either electrical or refrigeration,
were hired during September, October, November, or
December. In these circumstances I find the General
Counsel's contention without merit.
The General Counsel contends that an opening is
reflected by the fact that Jerry C. Parks, an electrician III,
quit or was fired on August 14 and was not replaced prior
to Schmidt's offer to return on August 28. I have been
unable to find any reference to Parks in the testimony, nor
to the fact he either was or was not replaced. However,
General Counsel's Exhibits 5(a) and (b), the personnel
assignments for July 15 and 31, respectively, list two slots
for electrician and two for refrigeration technician. The
personnel and assignment rosters for the months of August
and September, General Counsel's Exhibits 5(c) and (d),
respectively, both list 11 in the mechanical/electrical shop,
(the authorized strength) among whom are electricians J.
H. LaRiviere (hired July 23), G. F. Ferris (hired July 2),
and refrigeration technicians G. S. Patchett (hired August
1) and J. Tucker (hired August II). Therefore, I find no
opening existed as alleged by the General Counsel.
It was contended that Schmidt should have been hired as
expediter on October I in place of Lawrence Gowin. As
explained in section D, 1, the expediter is an administrative
staff position. He is the chief buyer for the Respondents,
the job requiring knowledge and experience in ordering
and procurement which Schmidt lacked. While the expedit-
er's rate of pay is not disclosed, from an organization
standpoint the position is in administration and the nature
of the duties convinces me that the position is not
substantially equivalent to that of a maintenance mechanic
IV. The General Counsel also contends that Schmidt
should have been hired as property control clerk on
October 15 in place of Gerald W. Roof. The rate of pay for
property control clerk, $3.53 per hour, is 30 percent less
than Schmidt's wage of $5.04 per hour as maintenance
mechanic IV. Accordingly, I find the jobs are not substan-
tially equivalent.
The General Counsel contends that Schmidt should have
been hired in November when the Army, on the basis of
employee resumes, advised the Respondents that it consid-
ered 19 employees, including Patchett, as not qualified for
the positions they were filling. (G.C. Exh. 6.) The Respon-
dents disagreed with the Army's evaluation and advised the
contracting officer that "G. S. Patchett has been reevaluat-
ed and is considered qualified for the Level II Journeyman
position to which he is assigned." (G.C. Exh. 49.) Whether,
as the General Counsel claims, Patchett should have been
terminated by the Respondents on the basis of the Army's
assessment of his qualifications is a contractual matter to
be resolved between the Army and the Respondents, and
not by me. The fact remains that the Respondents
considered Patchett to be qualified and employed him until
April 4, 1976, at which time he terminated and Schmidt
1262
ZAPEX CORPORATION
was recalled as his replacement. Therefore, I find no merit
to the contention Schmidt should have been recalled in
November to replace Patchett.
In sum, I have found that the Respondents failed to
reinstate Spear on September 2 and Rudd on August 29,
the dates they made personal appeals for reinstatement, to
jobs for which they were qualified and entitled by reason of
the fact there were jobs then filled by temporary employ-
ees. I have further found the Respondents did not engage
in unfair labor practices in any other respects. In arriving
at my conclusions, I have noted the lack of probative
evidence of union animus on the part of the Respondents.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in section IV,
above, occurring in connection with the operations of
Respondents as described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices violative of Section 8(a)(3) and (1) of
the Act, I shall recommend that they cease and desist
therefrom and take certain affirmative action in order to
effectuate the policies of the Act. I shall recommend that
the Respondents be required to make David Spear and
William Rudd, Jr., whole for any loss of earnings they
suffered by reason of Respondents' failure to reinstate
them on September 2 and August 29, respectively, by
payment to each of them of a sum of money equal to that
which he normally would have earned until the date on
which valid offers of reinstatement were made by the
Respondents. Loss of earnings, as referred to above, shall
be computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest at 6 percent
per annum as prescribed in Isis Plumbing & Heating Co.,
138 NLRB 167 (1962).
Upon the basis of the foregoing findings of fact, and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Respondents are each employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to reinstate economic strikers
David Spear and William Rudd, Jr., when work for which
they were qualified became available, and after each had
84 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
unconditionally requested reinstatement, thereby discour-
aging membership in the Union, the Respondents have
violated Section 8(a)3) of the Act.
4. By the foregoing conduct the Respondents interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed to them by Section 7 of the Act, in
violation of Section 8(a) 1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER84
The Respondents, BDM Services Company and Zapex
Corporation, Fort Ord and Fort Hunter Liggett, Califor-
nia, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to reinstate economic strikers
who have unconditionally requested reinstatement when
work for which they are qualified becomes available.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which shall
effectuate the purposes of the Act:
(a) Make David Spear and William Rudd, Jr., whole for
any loss of earnings they may have suffered by reason of
the Respondents' failure to immediately reinstate them
upon application, in the manner set forth in the section of
this Decision entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at their places of business in Fort Ord, Califor-
nia, and Fort Hunter Liggett, California, copies of the
attached notice marked "Appendix." 85 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by the Respondents'
respective representatives, shall be posted by them immedi-
ately upon receipt thereof, and be maintained by them for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
85 In the event that 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 National 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."
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