Computer Sciences Corp.

COMPUTER SCIENCES CORP. 1 Computer Sciences Corporation and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, Local Union No. 780 E G & G Florida, Inc. and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, Local Union No. 780. Cases 12-CA-7923 and 12-CA-10536 30 May 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 28 June 1985 Administrative Law Judge Irving H. Socoloff issued the attached decision. Respondents Computer Sciences Corporation (CSC) and E G & G Florida, Inc. (EGG) filed joint 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, and conclusions, as modified, and to adopt the recom- mended Order. The judge found that CSC was the successor employer of a unit of commercial computer pro- grammers and analysts formerly employed by com- puter services contractor Federal Electric Corp. (FEC) at Kennedy Space Center. In finding succes- sorship, the judge rejected CSC's assertion that or- ganizational changes it implemented upon being awarded the computer services contract in May 1977 erased commercial and scientific distinctions in the functional nature of the work performed by unit (commercial) and nonunit (scientific) employ- ees, thereby destroying the continued appropriate- ness of the certified bargaining unit.' He found, therefore, that as a successor, CSC violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. The judge also found that EGG, which was awarded the computer services contract in January 1983, in turn became CSC's successor and that, as such, it too acted unlawfully in refus- i On 13 September 1975 the Board certified the Union as the exclusive collective-bargaining representative of employees in the unit described as: All employees employed by "FEC" in the classification of engi- neering aide, junior programmer, programmer, programmer/analyst, senior programmer/analyst, and computation specialist in its Com- mercial Programming Section of the Computations Department at Kennedy Space Center, Florida; excluding all other employees, all professional employees, all employees currently represented by labor organizations, all office clerical employees, guards, and supervisors as defined in the Act. ing to bargain with the Union. Accordingly, the judge ordered EGG to bargain with the Union.2 CSC and EGG have excepted to these findings. For the reasons stated in his decision, we agree with the judge. The judge also concluded, however, apparently solely on the basis of allegations contained in para- graph 10(c) of the complaint, that the following constitutes a unit appropriate for purposes of col- lective bargaining: All programmers employed by E G & G Flori- da, Inc. at the Kennedy Space Center, includ- ing Computer Scientists, Senior Systems Pro- grammers, Systems Programmers, Senior Programmer/Analysts, Programmer/Analysts A and Programmer/Analysts B, but excluding all other employees Programmers working on the GOAL system, clerical employees, guards and supervisors as defined in the Act. [Empha- sis added.]3 The Respondents have excepted to this conclusion. In view of the judge's finding that the distinctions between commercial and scientific programmers survived the CSC reorganization, we agree that a description encompassing "all programmers" is in- appropriate.4 Having found that the reorganization was essentially a change in titles and that the dis- tinctions between commercial and scientific pro- grammers remain intact,5 we shall modify the unit description as follows: s At the hearing, EGG waived its opportunity to present a defense and stipulated that if CSC were found to be a successor , then it too was a successor. 3 The classifications are those used by CSC. * The Respondents assert that the judge erred in failing to analyze community-of-interest factors in arriving at a description of the 'unit Al- though the judge did not expressly undertake such an analysis, his deter- mination that a unit of commercial programmers remains appropriate en- tails an examination of evidence related to such community-of-interest factors as skills and qualifications, interaction and mterchange„ and mte- gration. See generally Armco, Inc., 271 NLRB 350 (1984) Regarding in- tegration, we note that while the reorganization resulted in bargaining unit members' being "sprinkled throughout the organizational structure of CSC," this result is observed primarily only in the Mission System Sup- port Section, and as the judge pointed out, the employees in this section and in other sections and branches continued performing either commer- cial or scientific tasks as they had prior to the reorganization. Additional- ly, bargaining history as a factor is inconclusive given the basis of the Respondents' refusal to bargain. Finally, CSC's conversion of commercial programmers to an exempt salary schedule does not militate in favor of a contrary conclusion inasmuch as there was no substantial disparity in exempt and nonexempt employees' wages in the first instance. 5 We do not rely on the judge's observation at fn . 6 of his decision that the scientific work was awarded to another contractor and not to EGG. The record reveals that in or about October 1983 Lockheed was awarded Launch Processing System (LPS) and Central Data Sub-System (CDS) Software Support work previously performed by CSC, but it does not conclusively establish that these largely scientific functions were never performed by EGG . If, however, as the judge's observation implies, EGG was awarded only commercial work, we believe this fact would serve to buttress our finding that functional distinctions survived and would be consistent with our description of the unit. 280 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All commercial programmers employed by E reached, WE WILL embody such agreement in a G & G Florida, Inc. at the Kennedy Space Center, including Computer Scientists, Senior Systems Programmers, Systems Programmers, Senior Programmer/Analysts, Programmer/- Analysts A and Programmer/Analysts B, but excluding all other employees Programmers working on the GOAL system, clerical em- ployees, guards and supervisors as defined in the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, E G & G Florida, Inc., Kennedy Space Center, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the at- tached notice is substituted for that of the adminis- trative law judge. 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 refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, Local Union No. 780, as the exclusive bargaining representative of our employees, in the appropriate bargaining unit. The unit includes all commercial programmers em- ployed at the Kennedy Space Center, including Computer Scientists, Senior Systems Programmers, Systems Programmers, Senior Programmer/Ana- lysts, Programmer/Analysts A and Programmer/- Analysts B, but excluding all other employees, Pro- grammers working on the GOAL System, clerical employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of all employees in the appropriate unit, described above, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is signed contract. E G & G FLORIDA, INC. Marvin P. Jackson, Esq., for the General Counsel. Thomas C. Garwood Jr., Esq., of Orlando, Florida, for the Respondents. DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge. Upon charges filed on 25 October 1977 and 21 January 1983, by International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, Local Union No. 780 (the Union) against Computer Sciences Corporation and E G & G Florida, Inc. (the Respondents) the General Coun- sel of the National Labor Relations Board , by the Re- gional Director for Region 12, issued a consolidated complaint dated 27 February 1984, alleging violations by the Respondents of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act (the Act). The Respondents, by their answers, denied the commission of any unfair labor practices. Pursuant to notice, trial was held before me in Cocoa, Florida, on 21 May and 23 and 24 July 1984, at which the General Counsel and the Respondents were repre- sented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Thereafter , the parties filed briefs which have been duly considered. On the entire record in this case, and from my obser- vations of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Until 1 October 1977, Federal Electric Corporation (FEC) maintained an office and place of business at John F. Kennedy Space Center, Florida, where it engaged in the business of providing ground support services to the National Aeronautics and Space Administration (NASA), an agency of the United States Government. During the 12-month period ending 1 October 1977, FEC, in the course and conduct of its operations at Ken- nedy Space Center, provided services to NASA valued in excess of $50,000. At all times material, Respondent Computer Sciences Corporation (CSC), a Nevada corporation , has main- tained an office and place of business at John F . Kenne- dy Space Center, Florida, where it has engaged in the business of providing ground support services to NASA. During the 12-month period ending 31 December 1978, CSC, in the course and conduct of its operations at Ken- nedy Space Center, provided services to NASA valued in excess of $50,000. At all times material, Respondent E G & G Florida, Inc. (E G & G), a Florida corporation, has maintained an office and place of business at John F. Kennedy Space COMPUTER SCIENCES CORP. Center, Florida, where it has engaged in the business of providing ground support services to NASA. During the 12-month period ending 31 December 1983, E G & G, in the course and conduct of its operations at Kennedy Space Center, provided services to NASA valued in excess of $50,000. I find that Federal Electric Corporation, Respondent Computer Sciences Corporation , and Respondent E G & G Florida, Inc. are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background Until October 1977 Federal Electric Corporation, pur- suant to contract, provided computer programming sup- port services to the National Aeronautics and Space Ad- ministration at Kennedy Space Center, Florida. FEC em- ployed both scientific programmers and commercial pro- grammers to perform this service. On 18 September 1975 the Union was certified as the collective-bargaining rep- resentative in a unit of commercial programmers em- ployed by FEC in its computations department at the Space Center. Thereafter, FEC refused to recognize and bargain with the Union. On 19 March 1976 the Board issued a Decision and Order' finding that FEC had violated Section 8(a)(5) of the Act by its refusal to accord recognition to the Union. FEC was ordered to recognize Local 780 and to bargain with it. On 21 October 1976 the United States Court of Appeals for the Fifth Circuit entered its judgment2 en- forcing the Board's Order. Thereafter, FEC and the Union began collective-bargaining negotiations which continued until May 1977 without agreement being reached. At that time, FEC lost its contract with NASA and was replaced by Computer Sciences Corporation. CSC was awarded all the work previously performed by FEC, including the work performed by those FEC em- ployees working in the unit certified by the Board. Ne- gotiations between FEC and the Union then ceased. CSC assumed responsibility for the former FEC oper- ations in a two-part process, taking over certain func- tions about 1 June 1977 and the remainder of the work, including that performed by the unit employees, about 3 October 1977. By letter dated 27 September 1977, the Union requested that CSC, as successor to FEC, recog- nize and bargain with it. By letter dated 20 October, CSC denied the request and, thereafter, the Union filed its charges in Case 12-CA-7923. On 17 April 1978 the Board filed a petition with the Fifth Circuit Court of Appeals seeking an adjudication that CSC, as successor to FEC, was in contempt of the court's prior judgment. The court referred the case to a special master who, after conducting an evidentiary hearing, issued a "Report 1 223 NLRB 161 (1976) 2 539 F 2d 1043 (5th Ctr. 1976) 3 and Recommendations" finding that CSC, as successor to FEC, had refused to bargain with the Union in contempt of the court's judgment. However, on 4 June 1982, the United States Court of Appeals for the Eleventh Circuit dismissed the petition, 3 holding that the successorship issued must, in the first instance, be resolved by the Board in an unfair labor practice proceeding. On 1 January 1983 E G & G Florida, Inc. assumed the work previously performed at the Space Center by CSC. E G & G refused to recognize and bargain with the Union, giving rise to the charge in Case 12-CA-10356. In the instant case, the General Counsel contends that CSC was the successor to FEC and, therefore, violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union, beginning in 1977. CSC asserts, essentially, that, after its takeover, the certified bargain- ing unit did not remain appropriate "due to the radical organizational and operational changes implemented" by it. Therefore, CSC claims, it was not the successor to FEC and its refusal to recognize and bargain with the Union was not unlawful. The parties agree that if CSC is the successor to FEC, then, E G & G, as a matter of law, is the successor to CSC. B. Facts4 It is undisputed that FEC structured its computations department at the Space Center to maintain two separate and distinct sections, namely, the commercial applica- tions section and the scientific applications section. The commercial programmers, who were in the former sec- tion, worked on business-oriented systems and were prin- cipally concerned with cost matters. The scientific pro- grammers, who were in the latter section, worked on en- gineering-oriented systems and their area of concern was the launch of spaceships and the data to be derived therefrom. The two groups of programmers were housed in separate buildings. They worked with different ma- chines, programmed in different languages, and there was no interchange or work interaction between them. Commercial programmers were, generally, high school graduates, with a knowledge of high school level algebra and mathematics, who received on-the-job training. All the scientific programmers were hired as programmer analysts and had degrees in mathematics or related areas, such as engineering. Prior to CSC's October 1977 takeover, it interviewed the FEC programmers with the stated intent of hiring as many of them as possible "for their resident expertise on the particular systems they had been working on." CSC hired 35 to 41 former FEC unit employees and some 16 to 22 other employees to perform unit work. As noted, CSC contends that, on its takeover, it rear- ranged and restructured the former FEC operation, eliminated the distinctions between commercial and sci- entific programmers and, thereby, rendered the existing 2 Computer Sciences Corp. v. NLRB, 677 F 2d 804 (11th Cir 1982) 4 The factfindings contained herein are based on a composite of the documentary and testimonial evidence introduced at trial Although the inferences and conclusions to be drawn from facts are in dispute, the record is generally free of material evidentiary conflict requiring credibil- ity resolution 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit inappropriate. Thus, CSC urges, the organizational charts introduced in evidence show that "the former members of the FEC bargaining unit were sprinkled thrqugbout the organizational structure of CSC." Indeed, the charts do so reflect. CSC established a single job title of "programmer/analyst" and initiated a cross-training program to qualify employees to work on any system or task without reference to the scientific-commercial dis- tinction. However, record evidence shows that attend- ance at the training sessions was not mandatory. In addi- tion to those programmers who chose not to attend the sessions, others were not invited. Despite the organizational changes, as reflected on paper, undisputed evidence establishes that the work of the former FEC commercial programmers did not change after the takeover, nor did their working condi- tions. They continued to be separately housed and they worked at the same desks, using the same machines to perform the same tasks as before. As under FEC, there was neither interchange nor work interaction between them and the scientific programmers. As one witness tes- tified, concerning the change of conditions for the com- mercial programmers, "there was simply a change in badges." It probably could not have been otherwise. For the former FEC commercial programmers lacked the specialized mathematical skills necessary to perform sci- entific programming and lacked the basic educational re- quirements necessary for training in those skills. Some 6 months after the CSC takeover, it transferred some of the commercial programmers into the building utilized by the scientific programmers. Later, others were transferred. However, even then, those c6mmercial programmers who were transferred occupied rooms sep- arate from the scientific people and they did not interact with them. The transferred commercial programmers continued in the performance of the same tasks as before. C. Conclusions As shown in the statement of facts, notwithstanding the changeover from FEC to CSC, there was a continui- ty of employing enterprise. CSC continued the same business at the same location utilizing the same equiment and serving the same customer as theretofore served by FEC. CSC hired former FEC employees to work as commercial programmers and those former FEC em- ployees constituted a majority of the commercial pro- grammers hired by CSC. Despite paper organizational changes instituted by Respondent CSC, the distinct and separate identity of the commercial programmers unit was not destroyed. The unit employees continued to work at the same desks, performing the same tasks and using the same machines as before. They continued to be separated physically from the scientific programmers with whom they had no -interaction. The commercial programmers were not qualified to perform, and did not perform, scientific programming work. I find and con- clude that the changeover did not have substantial impact on the integrity of the certified unit and that Re- spondent CSC was the successor to FEC, obligated to recognize and bargain with the Union.5 By failing and 6 NLRB v. Burns Security Services, 406 U.S. 272 (1972). refusing to do so, Respondent CSC violated Section 8(a)(5) of the Act. As it is conceded that if CSC is the successor to FEC, then, Respondent E 0 & G, on its takeover of the commercial programming works former- ly performed by CSC, in January 1983, became the suc- cessor to CSC, I find and conclude that Respondent E G & G, by its failure and refusal to recognize and bargain with the Union, also violated Section S(ax5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with their operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practice conduct in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that Re- spondent E G & G Florida, Inc. be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act.7 CONCLUSIONS OF LAW 1. Federal Electric Corporation , Respondent Comput- er Sciences Corporation, and Respondent E G & 0 Flor- ida, Inc. are employers engaged in commerce, and in op- erations affecting commerce, within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. International Alliance of Theatrical Stage Employ- ees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, Local Union No. 780 is a labor organization within the meaning of Section 2(5) of the Act. 3. All programmers employed by E G & G Florida, Inc. at the Kennedy Space Center, including computer scientists, senior systems programmers, systems program- mers, senior programmer/analysts, programmer/analysts A and programmer/analysts B, but excluding all other employees, programmers working on the GOAL system, clerical employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material the Union has been, and is now, the exclusive representative of all employees in the aforesaid bargaining unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union, as the exclusive representative of the bargaining unit employees, concerning rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, Respondents have engaged in unfair labor practice Another contractor, not E G & 0, was awarded the scientific work. 7 The General Counsel does not seek a remedy for the unfair labor practices of Respondent CSC. COMPUTER SCIENCES CORP. conduct within the meaning of Section 8(a)(5) of the Act. 6. The aforesaid 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- ed8 ORDER The Respondent, E G & G Florida, Inc., Kennedy Space Center, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with International Alliance of Theatrical Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada, AFL- CIO, Local Union No. 780 as the exclusive bargaining representative of its employees in the appropriate unit as described above. (b) In any like or related manner interfering with, re- straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 8 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. 5 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Kennedy Space Center, Florida locale copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 "