Tecom, Inc.

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