Computer Sceiences-Technicolor Associates

National Labor Relations Board - Board Decisions

May 22, 1978

236 N.L.R.B. 266 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Computer Sciences Corporation, Technicolor Graph-
ics Services, Inc. and Data Processing Associates,
d/b/a Computer Sciences-Technicolor Associates, a
Joint Venture and International Alliance of Theatri-
cal Stage Employees and Moving Picture Machine
Operators of the United States and Canada, AFL-
CIO, Local 780. Case 5-CA-8233
May 22, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On February 2, 1978, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to adopt the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Computer Sciences Cor-
poration, Technicolor Graphics Services, Inc. and
Data Processing Associates, d/b/a Computer Sci-
/ The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Drv Wall Products, Inc. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
2 In agreeing with the Administrative Law Judge that Respondent vio-
lated Sec. 8(aX5) of the Act, we note that the 8(a)(I) violations committed
by Respondent, i.e., impressing upon employees the futility of bargaining
through the Union, are of a character which would especially preclude a
finding that Respondent's doubt as to the majority status of the Union was
advanced in good faith. Guerdon Industries, Inc., Armor Mobile Homes Divi
sion, 218 NLRB 658 (1975).
ences-Technicolor Associates, a Joint Venture,
Greenbelt, Maryland, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard at Washington, D.C., on March 2, 3, and 4,
1977, pursuant to a charge filed on October 26, 1976, and a
complaint issued on December 21, 1976. The questions
presented are whether Respondent Computer Sciences
Corporation, Technicolor Graphics Services, Inc. and Data
Processing Associates, d/b/a Computer Sciences-Techni-
color Associates, a Joint Venture (CSTA) (A) violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act, as
amended (the Act), by withdrawing recognition from Inter-
national Alliance of Theatrical Stage Employees and Mov-
ing Picture Machine Operators of the United States and
Canada, AFL-CIO, Local 780 (the Union), and thereafter
refusing to meet and bargain with the Union; and (B) in
violation of Section 8(a)(1) of the Act, interrogated em-
ployees about union activities, told them that CSTA would
never approve the contract the Union was proposing or
settle a contract with the Union, and told employees that,
because of the situation with the Union, they would be
better off looking for other employment.
Upon the entire record (see infra, fn. 1), including my
observation of the witnesses, and after due consideration of
the briefs filed by Respondent and by counsel for the Gen-
eral Counsel, I make the following:
FINDINGS OF FACT
1. JURISDICTION
CSTA is a joint venture consisting of Computer Sciences
Corporation, Technicolor Graphics Services, Inc. (Techni-
color), and Data Processing Associates. It is engaged in the
business of providing data processing services to the Na-
tional Aeronautics and Space Administration (NASA) at
the Goddard Space Flight Center, Greenbelt, Maryland,
pursuant to a contract awarded to Respondent by NASA
valued in excess of $25 million. During the year preceding
the issuance of the complaint, a representative period,
Computer Sciences Corporation, a Nevada corporation,
with principal offices in El Segundo, California, purchased
and received in interstate commerce goods and materials
valued in excess of $50,000 from points located outside the
State of California. I find that, as CSTA admits, it is an
employer engaged in commerce within the meaning of the
Act, and that to assert jurisdiction over its operations will
effectuate the policies of the Act.
The Union is a labor organization within the meaning of
the Act.
236 NLRB No. 33
266
COMPUTER SCIENCES-TECHNICOLOR
11 THE AL. EGED UNFAIR LABOR PRAC ti ES
A. Background
1. The Union's certification; events before the first
negotiating session
On September 25, 1974, the Board conducted an election
among some of CSTA's employees to determine whether or
not they wanted the Union to represent them. The tally of
ballots showed that, of approximately 65 eligible voters, 41
cast ballots for the Union, 13 cast ballots against the
Union, and 5 ballots were challenged.' On October 4, 1974,
the Union was certified as the exclusive representative of
an admittedly appropriate unit consisting essentially of the
employees in CSTA's photoprocessing laboratory at the
Goddard Space Flight Center in Greenbelt, Maryland.2
Thereafter, Union Coordinator Andrew J. Younger had a
series of meetings with unit employees to get their views on
the provisions needed in a collective-bargaining agreement.
By letter dated November 13, 1974, then Project Manag-
er Richard N. McKee advised Union Attorney Bernard M.
Mamet, with a courtesy copy to Younger, that CSTA was
willing to begin contract negotiations with the Union, and
asked Mamet to arrange a mutually convenient date. Dur-
ing November the Union did not reply to this letter. How-
ever, during October and November Younger orally ad-
vised Richard Overmyer (who at that time was assistant
project manager for the Goddard photoprocessing depart-
ment), Photo Laboratory Department Manager Richard
Davis, and Scott Sharpe (the director of contracts and ad-
ministration for the applied technology division of Com-
puter Sciences Corporation, and responsible for all collec-
tive bargaining with respect to CSTA) that Younger was
getting proposals together. By letter to Mamet dated De-
cember 6, 1974, with a courtesy copy to Younger, McKee
expressed "concern" at the Union's failure to respond to
the November 13 letter, and again asked Mamet to contact
McKee to arrange for a "mutually agreeable time" to meet
regarding contract negotiations. By letter to CSTA dated
January 10, 1975, which enclosed a copy of the Union's
bargaining demands, Younger requested a collective-bar-
gaining date. By letter to Younger dated February 7, 1975,
Harry R. Kahler, who became CSTA's vice president and
general manager in early' 1975, suggested a date of Febru-
ary 28, 1975, in the conference room of CSTA's facility in
As discussed in greater detail infra, CSTA's vice president and general
manager. Harry Kahler, testified during (CSTA's case-in-chief that In Juls
1976 Respondent doubted the Union's continued majority partly because of
employee turnover since the September 1974 representation election. After
Kahler had so testified on direct and cross-examination, the General (Coun-
sel moved for leave to file a late exhibit consisting of the tally of hallots.
which at that time was in the National Archives Although objecting to the
receipt of any such exhibit on the grounds of materiality. CSTA's counsel
stated at the hearing that he would not oppose the receipt of such an exhibit
on the ground that it was tendered too late, if it was submitted within a
reasonable time after the hearing was otherwise closed and if he receised a
copy of it. Under a cover letter dated March 11, 1977, I week after the
hearing was closed subject to the submission of this exhibit, the General
Counsel forwarded copies of this document to me and to Respondent's
counsel. The tally of ballots is herebh received in evidence as CGC. ECxh 17
2The certified unit is set forth in Conclusion of Law 4. infra
Greenbelt, Maryland, which is in the Washington, D.C.,
metropolitan area.3
During the next I months, the parties had 8 or 9 negoti-
ating sessions. During all these sessions, the Union was
represented by Younger, whose office is in Cocoa Beach,
Florida, and CSTA was represented by Sharpe, whose
Falls Church, Virginia, office is in the Washington, D.C.,
metropolitan area. Business Agent Jonathan Reynolds,
who works out of Chicago, Illinois, attended many of these
meetings on the Union's behalf, and Union Attorney
Mamet, whose office is in Chicago, attended some of them.
CSTA's attorney, Nicholas Counter, whose office is in Los
Angeles, California, attended all of these meetings except
for the second day of a 2-day Chicago session in August
1975 (see infra). Corporate Labor Relations Representative
Don Schenkel attended some meetings on CSTA's behalf,
and the 2-day Chicago meeting mentioned above was also
attended by Overmyer.
Sharpe testified that, earl)y in negotiations, the Union
expressed a preference for negotiations outside the Wash-
ington area, where the Goddard facility is located, because
Washington negotiations would be "too accessible to the
employees." Younger testified that the Union wanted to
minimize interruptions during negotiations by meeting on
a "common neutral ground," away from both Chicago
(where the Union's office is located) and Washington. As
to this matter, for demeanor reasons I credit Younger.4
Three of the eight or nine negotiating sessions were held in
Chicago and the rest in the Washington, D.C., area. Sharpe
credibly testified that all the clauses which the parties
agreed upon were virtually the same as clauses contained
in one or another of the Union's contracts elsewhere, that
the parties "overall, definitely [did] not" agree to any of
CSTA's proposals on language, and that, in everything that
was agreed to, CSTA gave in on everything. No collective-
bargaining agreement was ever consummated.
2. The 1975 negotiations
At the first meeting, on February 28, 1975, the Union
tendered a collective-bargaining proposal to which were
attached copies of contracts, collectively referred to in the
record as the "Blue Book," between the Union and Techni-
color. At or about the third meeting, the Union advised
CSTA that because of a "most-favored-nation" clause in
the Blue Book and other contracts between the Union and
other employers, during the negotiations the Union could
not agree to higher wage schedules than those set forth
therein.5 During this first meeting, the Union stated that it
wished to negotiate nonwage matters first, and CSTA
3Contracts )lirector Sharpe testified that he could not recall whether an
earlier date would have been as convenient as February 28.
. Younger credibly testified that the parties' meetings in the CSTA con-
ference facilities were constantly interrupted by telephone calls and mes-
sages from the outer office to CSTA representatives.
This finding is based on Y'ounger's testimony In view of the terms of
the "most-favored-nation" clause and for demeanor reasons. I do not credit
Sharpe's testimony that the Union said this clause precluded it from negoti-
ating "an)thing different with ('STA than they would with Technicolor."
Accordingly. I do not accept Sharpe's related testimony that. at the first
bargaining session, Younger put the Blue Book on the table and said,
"There II is, that's what sou're going to wgrind up with" Younger credibly
denied telling (SI A that it iould have to agree with the Blue Book
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed. CSTA asked whether any employees would attend
bargaining sessions. Younger replied that it was union poli-
cy that employees not attend bargaining sessions, but when
negotiations were concluded, "we would have to go back to
the membership for ratification and . . . these were the
demands of the members."
Sharpe and Overmyer testified that, during this first ses-
sion, Younger asked when Robert Forster, who is vice
president of Technicolor and is on CSTA's board of direc-
tors, was coming to these meetings, and CSTA advised
Younger that Forster had nothing to do with the collective
bargaining at CSTA. For demeanor reasons, I credit
Younger's testimony that Forster's name was not men-
tioned during this meeting.
On an undisclosed date in August 1975, in response to
CSTA's request, the Union submitted what Sharpe de-
scribed as "supposedly a complete proposal, but it was sim-
ply a restatement or retyping of what they had provided
before." 6 Sharpe testified without contradiction or elabo-
ration that, in early August 1975, "there was a very definite
strike threat." No such strike took place.
The parties conducted a negotiating session on August
21, 1975, at the Hyatt Regency Hotel Airport, near the
O'Hare Airport in Chicago, Illinois. CSTA's representa-
tives at this session were Counter, Sharpe, and Overmyer.
The meeting broke up about 5 or 6 p.m. Counter flew back
to Los Angeles that night. However, Younger wanted to
check with Union Attorney Mamet, whose office is in Chi-
cago, about language proposed by CSTA to cover certain
matters to which the parties had agreed in principle. He
asked Sharpe and Overmyer to be available at the Hyatt
Regency on the following day, August 22, to negotiate fur-
ther after he was able to talk with Mamet, and these two
company representatives agreed. On the following day,
Younger telephoned Mamet about the matter, then tele-
phoned Sharpe and Overmyer at the Hyatt Regency, and
thereafter went out there, where the parties negotiated fur-
ther for 2 or 3 hours. Sharpe and Overmyer then flew back
to the Washington area.
My findings in the foregoing paragraph are based on a
composite of credible portions of the testimony of Young-
er, Overmyer, and Sharpe. I do not accept the suggestion in
Younger's or Overmyer's testimony that the first session
occurred on August 20, which makes no sense on any ver-
sion of the substance of the parties' conversations and con-
duct. Also, for demeanor reasons, I do not credit
Younger's testimony that part of the first session was held
at the Union's Chicago office, or that Counter was briefly
present a! the August 22 session. For demeanor reasons, I
do not credit Overmyer's or Sharpe's testimony (credibly
denied by Younger) that Younger asked them not to leave
that day because the employees thought that the parties
were engaging in lengthy negotiations. In this connection,
for demeanor reasons, I discredit Overmyer's testimony
that Younger had previously told him that Younger had
told employee Michael Cassidy that the parties were going
to be in "round the clock negotiations for as much as three
or four days." and accept Younger's denial of this remark.
6 lThis document is not in the record.
in which respect he was indirectly corroborated by Cassi-
dy. For demeanor reasons, and in view of the probabilities
of the situation, I do not credit Sharpe's testimony, not
specifically corroborated by Overmyer, that Sharpe sug-
gested to Overmyer that he not return to the shop on the
following day "to honor Mr. Younger's request." Also for
demeanor reasons, I do not credit Sharpe's and Overmyer's
testimony that on August 22 Younger reached them by
having them paged at the airport. and credit Younger's
testimony that he telephoned them at the Hyatt Regency.
On November 1, 1975, at the request of employee Wil-
liam Fierstein, five bargaining-unit employees-including
Fierstein, Cassidy, Gerald Gleason, and Chappelli-asked
to meet with then Personnel Manager Kolom to discuss
various "concerns ... in the shop." Sharpe decided to at-
tend this meeting. In addition to discussing these matters,
the employees questioned whether collective bargaining
was actually taking place, and whether they should not
have a right to participate in collective bargaining. Sharpe
said that CSTA was bargaining with the Union. The em-
ployees told Sharpe they did not believe him. Sharpe said
that it was up to the Union whether or not they partici-
pated in the bargaining. They asked Sharpe whether he
could intercede on their behalf with the Union and write a
letter asking for them to attend the bargaining sessions.
Sharpe declined to write the letter.
Later that same day, the unit employees met together to
find out from employee Cassidy whether they could do
anything to help negotiations. They were upset about the
negotiations and felt that getting a contract was taking a
long time. After some discussion, the employees decided to
send some employees to the negotiating sessions to see
what was going on. During this employee meeting, the em-
ployees elected four "officers" consisting of Cassidy as
president, Fierstein as director of communications, Glea-
son as secretary-treasurer, and Alan Guy as ways and
means committee chairman. Also during this meeting, the
employees decided to put on a demonstration to show sup-
port for the Union to CSTA. The union representatives did
not attend this meeting, nor had they been invited to at-
tend, because the employees had not anticipated that the
meeting would reach a decision to attend bargaining ses-
sions.
On November 3, 1975, Sharpe received a copy of the
following letter from Mamet to Counter dated October 28,
2975:
I've had it. Apparently your client mistakes courtesy
for weakness, so let me tell it as it is. We either get a
deal or you have got a strike-and soon. I am sick and
tired of being required to accommodate everybody's
schedule, including yours. The people just took a vote
on their own and by letter received today they are
asking to have a walk-out sanctioned. It is also clear
that they will even walk out without a sanction from
us and we are not going to let this happen. By that I
mean any walk-out will be sanctioned and we are al-
ready in the process of laying the preparatory work.
When we get together next, I will expect us either to
reach an agreement in troto or an impasse.
By letter dated November 4, 1975, Fierstein advised
268
COMPUTER SCIENCES-TECHNICOLOR
Mamet that 43 "members" of the "Greenbelt Chapter of
Local 780" had held an "open meeting" whose "main pur-
pose was to elect officers" to represent the membership
during contract negotiations. After naming the officers, the
letter stated, "Also discussed . . . was our legal right to
have a 'Rank and File' member of the bargaining unit pres-
ent as a nonparticipating observer at the negotiation table.
It was in his capacity as president of the chapter that Mi-
chael Cassidy was elected to represent us at the table dur-
ing the [November 11] negotiation session."
On November 10, between 7 a.m. and 5:30 p.m., a group
of bargaining-unit employees conducted a public demon-
stration against CSTA without giving the Union prior no-
tice. At any given time during this period, 3 to 25 employ-
ees were present, the largest number being present at the
end of the day shift, While they were engaging in this activ-
ity, the local police periodically came by and assured the
employees that they were within their legal rights as long as
they stayed on public property. Employee Kenneth Smith
testified without objection that employee Gleason, one of
the demonstrators, told Smith that Gleason had got in
touch with the police, who said what the employees were
doing was legal. Pursuant to Supervisor Davis' instructions.
photographs of this demonstration were taken by Assistant
Photo Manager Murl Fleenor, who was present continu-
ously from I to 4 p.m. and periodically at other times, and
by Photo Maintenance Manager John Wright, who was
there periodically.7 On December 18, 1975 (see infra. fn. 8),
Supervisor Davis sent Kahler the following memorandum
about this incident:
Subject: Incident Report
On the morning of November 10, 1975, photo and
quality assurance personnel listed within the bargain-
ing unit staged a one-day protest at GSFC. The pro-
test was set up on Greenbelt Road across from the
main gate. A few employees had requested vacation
for the 10th at an earlier date and most were present
throughout the day at the site. The protest consisted of
pickets holding two large signs. One sign read "We're
Ready" and the other read "Dry Run." Small blank
signs were also carried.
Most people seen on the picket line worked their
normal scheduled shifts and picketed during their
lunch period and before and/or after their regular
work shifts.
Photographs are attached.... Individuals that can
be identified are listed on the back of the pictures.
The protest did not disrupt production as work
within the photo and QA sections continued as nor-
mal.
Ms findings that this incident occurred on November 10. 1975, is basled
on Davis' testimony. For demeanor reasons, I conclude that employee
Smith was mistaken in testifying that this incident occurred in Januar)
1976. The parties stipulated that. in Januar' 1976. Wright was a superli..r.
There is no evidence about his status in November 1975 As to Fleenor,
Smith's uncontradicted evidence shows that. for more than a year before the
spring of 1976, Fleenor hired and fired employees and exercised authorits to
grant time off and to have employees work overtime. I conclude that, as of
the date of the demonstration. Fleenor was a supervisor wlthin the meaning
of Sec. 2( 11) of the Act. However, because he and Wright acted pursuant to
the instructions of Davis, who was concededly a supervisor. Fleenor's and
Wright's status makes little or no difference for purposes of this case
The protest ended after the traffic from the day shift
left the center which was around 5:00 or 5:15 p.m. 8
Davis testified that the purpose of the picture-taking was
"To record the events of the protest and in reference to
where [the demonstrators] were standing, by the gate." He
further testified that Fleenor or Wright had listed the
names of the pictured participants on the back of each
photograph, and that Davis did not know why such names
were there. In addition, he testified that he did not "really"
know the purpose of this demonstration. I do not believe
his testimony in this respect, for demeanor reasons and
because his memorandum described the demonstrators as
"listed within the bargaining unit."
The November 11 bargaining session was attended by all
of the "Greenbelt Chapter's" employee "officers" but Cas-
sidy. All of them, including Cassidy, attended the Novem-
ber 12 session. During discussion of contract provisions
regarding a stock purchase plan, employee Gleason ex-
pressed to CSTA concern with the status of his own stock
purchase arrangements under the plan. Some employees
answered questions put by CSTA. This activity aside, they
did not participate in negotiations. Younger credibly testi-
fied that, after this meeting broke up, CSTA said that the
employees were "awful rowdy" and that it hoped they
would not attend again. Sharpe testified that, when he and
Younger went out, Younger said, "You see why I don't like
employees to come to collective bargaining." For de-
meanor reasons, I credit Younger's denial. After attending
these meetings, the officers were all satisfied with the way
the Union was bargaining with CSTA. They all decided
that thev did not want to go to any more as observers, and
they did not. However, so far as the record shows, they
never advised the other employees of this decision.
Younger credibly testified that, between September 1975
through November 1975, several employees asked about
their observing or participating in negotiations. Still ac-
cording to Younger's credible testimony, he reminded
them of his statement during the organizing campaign that
the Union had a policy against employee participation in
negotiations, because it was the Union's experience that
heated arguments during negotiations caused employers to
retaliate later against employee negotiators. Similarly, em-
ployee Cassidy credibly testified that during the organiza-
tion period the Union told him that it had a policy against
employee negotiators because of possible "repercussions,"
which Younger did not specify. against them.
At the end of the November I I bargaining session, the
Union told CSTA that the Union was going to break up
and take a strike vote. The employees then registered an
"overwhelming" vote to strike within 60 days unless a bar-
gaining agreement was consummated. The following day,
Younger advised Sharpe that the employees had voted to
strike within 60 days absent an agreement. In the spring of
1975, the employees had also voted to strike. No strike
took place on either occasion. The Union has a policy
against strikes on Government installations such as that
s Davis testified that he waited until December 18 to, forward his memo-
randumrn of Ihis Nosember 10 incident because he was awaiting receipt of
the pholographs. which were noll proescd In ( ST 's lahbrators
269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in this case, and had advised CSTA of that policy.
Between 1957 and the March 1977 hearing, the Union had
had a total of 50 contracts, with 6 different employers, at
the Kennedy Space Center; and had conducted a total of
two work stoppages there, one of which resulted in a loss of
about 1-1/2 working hours. During about the same period,
the Union had engaged in about 10 additional strikes, 3 or
4 of them on Government installations.
3. The 1976 negotiations
Between January 1976 and July 1976, Younger held at
least two, and probably about three, meetings among
CSTA's employees. At all these meetings, the employees
told Younger not to sign a contract without retroactivity,
and said that they wanted to strike.
During a negotiating session held about December 1975,
CSTA promised to provide a revised contract proposal 2
weeks before the next meeting, which was scheduled for
Chicago on January 12, 1976. Prior to this meeting, CSTA
had provided an initial and three revised contract propos-
als. On December 31, 1975, CSTA mailed the promised
fourth revised contract proposal from Los Angeles to
Mamet in Chicago. So far as the record shows, Mamet
received this material in the ordinary course of the mail.
Younger did not receive it until January 11, 1976. As of
January 1976, the parties were separated by most of the
economic package, union security, functions of manage-
ment, seniority, layoff and recall, and the duration of the
contract.
At the January 12, 1976, meeting, CSTA was represented
by Counter, Sharpe, and Overmyer. At the outset of the
meeting, when Younger and Reynolds were the Union's
sole representatives present, CSTA asked them whether
they had read its latest proposal. They replied no, and did
not say when they had received it.9 At the end of the Janu-
ary 12 session, which lasted about 8 hours, CSTA asked the
Union whether the parties were going on the wages, and
said that CSTA felt the Union had never given a full and
complete proposal. Younger testified without objection
that Mamet, who had come in late, prepared a wage pro-
posal by copying on a piece of paper, which he gave to
CSTA across the table, wage figures for each CSTA job
classification as set forth in one or the other of three union
"most-favored-nation" contracts (the Blue Book contracts
which had been attached to the Union's initial contract
proposal in February 1975, and a Houston contract which
had also been previously submitted to CSTA). Sharpe testi-
fied that the proposed wage rates exceeded those in the
Union's initial proposal, but, upon the General Counsel's
objection on best-evidence grounds, I received this testi-
mony solely to show Sharpe's state of mind.'0 Sharpe testi-
fied without specific contradiction that this was the parties'
initial wage discussion, but see CSTA's January 14 letter to
9 When asked why they had not read it, Sharpe testified, "I imagine they
didn't have time. I don't know. They didn't say why they hadn't read it, hut
this had happened before. It didn't surprise us."
I°CSTA counsel stated on the record that he had the Union's inillal.
February 1975 proposal, and the General Counsel stated that he thought he
had the Union's Janualry 12. 1976, proposal, but neither document was
produced
the Union, set forth infra. CSTA's representatives then said
that they were returning to their hotel and would meet with
the Union the next day to present their "best offer." On the
following morning, they returned and stated that the
Union was "completely unreasonable and out of the ball
park," and that CSTA did not want any more discussions
until the Union got more reasonable. Mamet then said that
the Union was going to "war."
At this point, the Federal mediator who had attended
these sessions conferred privately with CSTA's representa-
tives. He then told them that he wanted the parties to have
a joint session, and asked CSTA's representatives to wait
while he conferred privately with the Union's representa-
tives. The Union asked CSTA's representatives to wait in
the outer offices, and they agreed to do so. After conferring
with the Union's representatives, the mediator went to get
CSTA's representatives, and was informed by the Union's
secretary that they had decided to leave and not have a
joint session, and that they would call the mediator from
their hotel room. After waiting about 2-'12 hours, the medi-
ator received a telephone call from Counter, who said he
was calling from the airport. Using "some rather strong
words," the mediator demanded why he had not been
there.
After this January 13 meeting broke up, Attorney Mam-
et telephoned Technicolor Vice President Forster, with
whom Younger had bargained in connection with
Technicolor's Blue Book and who is also a member of
CSTA's board of directors, and asked him to intervene in
the matter in order to draw it to a conclusion. Forster sug-
gested that Mamet talk to Kahler. Mamet then telephoned
Kahler that negotiations were reaching a critical stage and,
unless a settlement was reached, the Union was going to
take "certain actions" against CSTA. Mamet further ex-
pressed the opinion that the parties would reach a settle-
ment if Kahler would come to future negotiations, and
asked Kahler to come to Chicago for the next session and
then to attend future negotiations. Kahler said that he
would come to the next session if Mamet would provide
him with his "full proposals" so Kahler could participate in
a "meaningful way." Mamet said that he would provide
Kahler with a proposal by January 21, if Kahler would
provide him by January 19 with certain personnel policies.
Kahler agreed to mail this material to Mamet. Kahler also
said that he would call Mamet the next day "to firm up on
a time and place." During a telephone conversation on the
following day, Mamet and Kahler agreed to meet in Chica-
go on January 27 and 28. During this conversation, Mamet
stated that he was not particularly interested in repre-
senting the other people at Goddard, and had only come
there initially to put pressure on Technicolor, with which
he was conducting negotiations in Houston.'
By letter to Mamet dated January 14, Counter stated:
This will confirm the position of CSTA as stated to
you at our meeting on January 13, 1976.
Representatives of CSTA are prepared to meet with
you as soon as you have forwarded to us a total writ-
ten proposal for resolving our remaining differences
I This finding is based on a composite of Kahler's testimony on direct
examination and on cross-examination.
270
COMPUTER SCIENCES-TECHNICOLOR
(just as we have done on six different occasions which
you requested) demonstrating the Union's willingness
to negotiate in good faith as to those issues. We are
particularly concerned about the Union's latest pro-
posal as to wages, which admittedly was a step back-
wards and was the very antithesis of your position at
our meetings in December. In short, your last proposal
represented a substantial increase in dollar cost over
and above the Union's first proposal some 11 months
ago.
Again, let me reiterate CSTA's desire to meet and
negotiate an agreement with your client as long as that
agreement is negotiated, not dictated by your negoti-
ating posture elsewhere.
Please forward to me the Union's proposal for re-
solving the remaining issues, together with your next
available dates. We are prepared to meet in Chicago
once again in the interest of facilitating final agree-
ment.
Kahler mailed Mamet the promised personnel informa-
tion on January 16. About January 23, Mamet's secretary
telephoned Kahler that Mamet might not be able to make
the January 27 and 28 meetings because his mother was in
the hospital. Kahler asked her to remind Mamet that Kah-
ler had not received the contract proposals Mamet had
promised by January 21. The January 27 and 28 meetings
were never held. On January 28, Mamet called Kahler and
requested that they set another negotiating date. Kahler
said that he had not yet received Mamet's contract propos-
al. Mamet said that Kahler would have it by February 2.
Kahler said that, as soon as he received it, he would tele-
phone Mamet to arrange for a Chicago negotiating session
to be attended by Kahler. Also on January 28, Mamet told
Forster that Mamet would not participate in current nego-
tiations with Technicolor until either his mother got better
or "something happened."
Sometime before mid-February, Mamet told Younger
that Mamet would prepare the contract proposals request-
ed by CSTA. However, Mamet never sent any contract
proposals to Kahler. In February and March 1976,
Mamet's mother was in the hospital in critical condition
because of cancer, of which she died in March 1976. In
April 1976, Younger was assigned the job of preparing the
contract proposals requested by CSTA. Younger testified
without objection that, during the period when Mamet's
mother was in the hospital, "I talked to [Mamet] on several
occasions and he told me he had talked to the employer
and had explained the condition of his mother and that it
would hold up any meetings and so forth, that he was
spending quite a bit of his time at the hospital because of
her condition and there seemed to be no objection on their
part." Between January and May 1976, Younger had about
four conversations with CSTA officials. In April 1976,
Younger told Silarpe that Younger wanted to sit down and
meet immediately. Sharpe said that CSTA would not meet
until the Union gave it a complete counterproposal. Youn-
ger told him that it was to CSTA's best interest to conclude
a contract so CSTA did not have an outstanding labor
dispute while bidding on a NASA contract in Florida, and
took Sharpe to NASA's Florida head of labor relations to
receive his views on the "posture" of a bidding firm that
was having labor disputes elsewhere. Also, on at least three
occasions, Younger told CSTA board member Forster,
who is vice president of Technicolor, that Younger wanted
to sit down and meet immediately and asked Forster to
intervene in the situation. Younger testified without objec-
tion that Forster eventually told him that Forster "had a
conversation with Kahler," who before taking over his
CSTA position had worked with Computer Sciences Cor-
poration. and "was told that [Technicolor was] the minori-
ty company in this venture and that there was some decer-
tification activity taking place at Goddard and because of
this, to keep his big mouth out of the situation, that they
would handle all of the labor relations." Kahler testified
that in the spring of 1976 he had not discussed the negotia-
tions with Forster in any detail, that he had never asked
Forster to discuss negotiations on CSTA's behalf with
Younger, and that Kahler had never discussed with Forster
that there was a decertification petition going around
CSTA. Forster did not testify. Younger testified, over ob-
jection on hearsay grounds, that Forster did not identify by
what method CSTA had received its information, but told
Younger that the decertification was of prime consider-
ation to CSTA as far as concluding the union contract.
Younger concluded from this conversation that CSTA
had no desire to conclude a contract because of the sup-
posed decertification activities at Goddard. Because of this
conclusion, he arranged for the distribution, to each bar-
gaining-unit employee, of a letter dated May 24, 1976,
which stated, infer alia:
. . .your local representatives are trying hard to se-
cure a union contract for you. However, because of
certain activities on the part of some of your fellow
employees to circulate a petition for decertification,
our activities have been greatly hampered. If it is the
interest of the unit to decertify, so be it. But if, on the
other hand, you feel as strongly today as you did on
the date of the election, you can demonstrate the same
by notifying your supervisors. If the company believes
that you will decertify, what incentive do they have to
negotiate now, or in the future? 12
After sending out this letter, Younger had a meeting in
Rosslyn, Virginia (which--like Greenbelt, Maryland-is in
the metropolitan Washington, D.C., area), with about 25
members of the bargaining unit. He told them that if they
wanted to decertify the Union he could not do much to
stop it and did not want them to. The employees told him
that one or two employees had been going around to see
what support they could muster for such a petition, but
that there was little or no interest and no formal decertifi-
cation petition ever materialized. All the employee witness-
es who testified-Cassidy, Smith, Garland, Kerns, and
Chhabara--credibly testified that they had never seen a
piece of paper which indicated that any employees wanted
to decertify or get rid of the Union. There is no direct
evidence in the record of any decertification activity.
"' This letter was not received to show the truth of the matter asserted
therein.
271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Withdrawal of Recognition; the Prounion Petitions
On July 7, 1976, Younger forwarded to Kahler a com-
plete revised collective-bargaining proposal, together with
a covering letter stating, inter alia, "Please advise us as to
your earliest availability for a negotiation session." On
Monday, July 19, while in the Washington area on other
business, Younger telephoned Kahler and asked how soon
they could set up a meeting to conclude the negotiations.
Kahler acknowledged having received the proposed con-
tract, and said that he had to "get with his people" and
would get back to Younger as soon as possible. Younger
said that he would be leaving town Wednesday, July 21,
and asked whether Kahler could get back to him by then.
Kahler said he would try, but Younger received no com-
munication from him during Younger's Washington visit.
On July 23, Younger telephoned Kahler to get a negotiat-
ing date. Kahler said that he had had "discussion with legal
counsel and that because they believed that [the Union] no
longer represented a majority, he was going to refuse to
meet with [the Union] further."
Thereafter, the Union decided that if CSTA had a "legit-
imate distrust" of the Union's majority, the "easy way" to
resolve that was to go to an election. At Younger's request,
on July 27, 1976, Cassidy went to the Board's Regional
Office, with authorization cards I to 1-1/2 months old, and
filed on the Union's behalf a representation petition, dock-
eted as Case 5-RC-9794, which described the unit as "All
laboratory employees involved in photographic processing,
quality assurance, and maintenance employees employed
by the employer at NASA's Goddard Space Flight ('enter
located in Greenbelt, Md.," excluding "All office clerical
employee[sic], professional employee [sic], guards and su-
pervisors as defined in the National Labor Relations Act,
as amended, and all other employees." Maintenance em-
ployees were not mentioned in the Union's October 1974
certification, although they were included in the unit de-
scribed in the Union's July 7, 1976, proposed collective-
bargaining agreement. Younger had instructed Cassidy to
get the certification from the Board and to use the unit
language therein. The variance is unexplained in the rec-
ord. CSTA raised a unit issue and sought to go to a hearing
thereon. The hearing was set at a date when Younger,
Mamet, and Reynolds all had to attend an International
convention in Minneapolis. The agency refused to change
the date of the hearing. In consequence. on August 9, 1976,
the Union requested leave to withdraw its petition without
prejudice. The petition was withdrawn about 2 days later.
Thereafter, CSTA caused to be circulated among the
employees the following memorandum, dated August 12
and signed by Kahler:
Today we were notified by the National I.abor Re-
lations Board that [the Union] no longer wishes to par-
ticipate in a secret ballot election, and it has with-
drawn the election petition. This is unfortunate
because the Union seeks to deny you, the employees.
the opportunity to express your true desires regarding
Union representation through a secret ballot election.
We can only speculate why the Union took this ac-
tion. Perhaps they believed that once you had the op-
portunity to hear and consider all the facts, you would
vote against union representation. Knowing this, the
Union decided to withdraw its petition rather than
proceed with the election. In any event, one fact is
clear. since October 1974 [the Union] has been unable to
deliver on any of its promises.
As we recently stated, we believe that a democratic
vote is the best way to resolve the Union's claim for
recognition. We remain ready to participate in an elec-
tion and to discuss all the issues that are of concern to
you. We think you should be asking "What is the
Union afraid of'?"
We shall continue to keep you advised of further
developments.
Meanwhile, on August 10, 1976, employee Cassidy draft-
ed a petition in which Younger made "minor changes" be-
fore Cassidy typed it, which read, "We continue to be rep-
resented by [the Union] and request that you resume
bargaining immediately." 13 On August 10 and I 11, this doc-
ument was circulated among the employees by employees
Cassidy, Smith, Singh Chhabara, and David Garland. Cas-
sidy told the employees that "since the Company feels .
the Union no longer [represents] a majority, Mr. Younger
and I felt that perhaps a petition of this nature would again
demonstate that the majority does exist within the bargain-
ing unit." Garland told them "that the Company felt that
we no longer had a majority for the I nion and that we
were trying to show them that we did . . . and that we
wanted to continue negotiating immediately." Of about 43
employees in the bargaining unit. some of whom were on
vacation, 31 (including Cassidy and (;u') signed this docu-
ment. Cassidy and Garland told the employees whom theN
solicited that there would be no hard feelings if they did
not sign. Of the unit employees approached to sign. two
refused.
Younger told Cassidy to make a carbon copy of this
document, to deliver the original to Kahler, and to have
Kahler initial the carbon copy. On August 12, after the end
of Cassidy's work shift, he went to the reception room out-
side Kahler's office with the signed petition and a xerox
copy which included all the signatures. Cassidy introduced
himself to Kahler's secretary, Queen. and told her that he
had some union material and wanted to see Kahler. Queen
then went into Kahler's office and told him that Cassidy
was outside and would like to see him to deliver a paper to
him. Kahler told her to tell Cassidy that Kahler was in-
volved in a meeting and to ask him to come back in an
hour. She went out, told Cassidy that Kahler was in a
meeting. and said that he could either wait for an hour or
come back in an hour. Leaving Cassidy in the reception
room,'4 she returned to Kahler's office to say that Cassidy
would come back in an hour.
At this point, Kahler telephoned Sharpe. Sharpe testified
that, of CSTA's 700 or 720 employees at Goddard outside
the certified unit, all are unorganized. Sharpe further testi-
fied that CSTA's formal supervisory training program in-
i ( assid? could not recall whether he suggested the petlion to Younger
or Younger suggested the petiltion to him.
l4 le waied half the tinme and then left
272
COMPUTER SCIENCES-TECHNICOLOR
cludes a course which "deals with union sensitivity and
discusses with supervisors things that they should be doing
in the shop to preclude employees from seeking outside
assistance from unions. It's a union prevention or union
sensitivity type of course [which discusses] cases . . . where
supervisors have been misled by employees into recogniz-
ing the union." Still according to Sharpe, these courses had
included "discussions based on previous cases that there
were various techniques used to achieve . . . defacto recog-
nition and we were well acquainted with all these tech-
niques . . . such as presenting petitions to supervisors, or
management when [the supervisors] are unaware of the
documents being presented and then making a case that
the company recognized the union.... For instance an
[employee] would walk up to a supervisor and hand that
supervisor a piece of paper or ... a stack of authorization
cards and the supervisor would accept them not realizing
what he had accepted. The legal precedent that he was
establishing by accepting those cards." Kahler told Sharpe
that Cassidy had said that he had something to give Kahler
personally. Kahler testified that he and Sharpe knew that
Cassidy had filed the representation petition on the
Union's behalf and were aware that what Cassidy wanted
to give Kahler "personally' might be "cards or a petition
or some sort of document like that." Kahler asked whether
he should see Cassidy. Sharpe said yes, but to be "very
alert for Mr. Cassidy presenting some union papers that we
were not to receive," and not to take any written docu-
ments or cards from Cassidy. Sharpe explained to Kahler
that Sharpe was afraid that, if Kahler accepted material he
should not accept, "This could be considered as recogni-
tion of the bargaining unit." After hanging up, Kahler told
CSTA Controller Henry Leidemer and CSTA Business
Manager Jack Bailey, who were in Kahler's office, that, if
Cassidy attempted to deliver a document to any of the
three of them, none of them was to accept or read it.
Thereafter, Queen admitted Cassidy into Kahler's office.
Cassidy introduced himself and said that he had a petition
that was signed by people in the bargaining unit indicating
their desire to be represented by the Union and requesting
that CSTA resume bargaining. Kahler asked what it said.
Cassidy read aloud the typewritten material on the peti-
tion, but not the names. Cassidy said nothing about how
many employees had signed it. Kahler made no comment.
Cassidy asked Kahler to sign a copy of what Cassidy had
in his hand, acknowledging that he had received it. Kahler
said no. Cassidy put the document on the coffee table in
front of the couch where Kahler, Leidemer, and Bailey
were sitting, and in such a position that it faced Kahler.
Kahler lowered his head, in such a position that if his eyes
were open he was looking at the petition, and kept his head
in that position for 10 to 30 seconds. The signatures on the
petition were easily readable by someone who was looking
at the petition with his head in that position. Cassidy left
the petition on the table, said goodby, and went out of the
office. While Cassidy was in the office, Kahler did not indi-
cate to him that Kahler had seen or looked at the names.
Kahler testified that he did not see Bailey or Leidemer pick
up the document or lean forward to examine it. Leidemer
testified that he never looked at the document. and did not
see Bailey look at it. Bailey did not testify. 5
Kahler then called Queen into the office and asked her
to prepare an office envelope, put the document in it, and
mail it to the Union. She went out of the office, returned
with the envelope, put the document in the envelope, and
asked Leidemer to assign someone to take it to the post
office. She did not look at the document. Leidemer ar-
ranged for the mailing of the document, return receipt re-
quested.
That same day, August 12, Cassidy told Younger about
the petition and its delivery to Kahler. Later that same day,
after unsuccessfully trying to get through to Kahler,
Younger telephoned Sharpe and asked him whether, hav-
ing received the petition from the employees. CSTA was
prepared to negotiate. Sharpe said that CSTA had not re-
ceived a petition. Younger said that he understood that
Cassidy had delivered a petition to Kahler personally.
Sharpe replied that Cassidy had brought in a "cockamamie
piece of paper that we didn't bother to read. We folded it
up and mailed it back to you." Younger asked how CSTA
knew to mail it back to Younger if CSTA did not know
what it was. Sharpe said, "Anything Cassidy would bring
in would have to be union trash, and you receive all union
trash, so we mailed it back to you. In any event, we don't
believe that you have a majority and our position remains
the same." 16 By letter to Younger dated that same day,
August 12, Kahler stated:
Mr. Sharpe has informed me of your telephone con-
versation with him today in which you advised him of
L.ocal 780's desire to bargain on behalf of CSTA photo
lab employees in Greenbelt, Maryland. As I told you
on July 23, 1976, we doubt that your Union continues
to represent a majority of CSTA employees in an ap-
propriate bargaining unit. This is particularly true in
light of the confusing circumstances regarding your
withdrawal of the Representative Petition filed by Mi-
chael Cassidy.
We believe, as does the United States Supreme
Court, that the best way to determine your representa-
tive status is through a secret ballot election. Accord-
ingly we have authorized our counsel to file a Repre-
sentative Petition with the National Labor Relations
Board.
Please direct all further correspondence regarding
this matter to our attorneys, Jackson, Lewis, Schnitz-
ler & Krupman, Attention: Mr. Victor Schachter, 261
Madison Avenue, New York, New York... .7
' Ms findings In the foregoing paragraph are based on credible portions
f ( assids's. Kahler'-. and I eidemer's testimony For demeanor reasons. I
do not credit Kahlt's tcstimon., or L.eidemer's parti) corroborative testi-
mnonN, that Kahler did not look at the document Nor do I accept CassidN's
initial testimotn. which he suhsequentls withdrew. that Kahler at one point
had the petition in hi, hand
'i i finding, as trl this c,,nersatiomn are based on Younger's iestimonyf
which for demeanor reasons I accept to the hmnited extent it is inconsistent
with Sharpe's iestirnons Sharpe testified. inter alia, that he told Younger
that "we don't knos w hat that uas.' referring to the paper left bh C(assidy.
and "''u dln't expecl us to fall for thatu old trick, do you." referring to "a
recognized techniqlue of ai uillon ti, surprise management with cards and
petlo, an d s things i th.at are suppoedls developed to get management
to recognlze the unllon-
In view oIf the contcnts and date of this letter. I do not accept Kahler's
Continued
273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 16, 1976, Younger filed an 8(a)(5) charge,
docketed as Case 5-CA-8120, which alleged that, on Au-
gust 12, Respondent had unlawfully refused to continue
bargaining. That same day, Kahler signed the following
memorandum which CSTA distributed to the employees:
As you know, CSTA believes there is reasonable
doubt as to whether [the Union] represents a majority
of the photo lab employees. CSTA also believes that
the correct way to resolve this issue is through a secret
ballot election under the supervision of the NLRB.
While CSTA is quite willing to participate in such
an election, and to address the real issues of whether a
union is in the best interests of our employees, [the
Union] is not. Accordingly, we have filed a petition
with the NLRB requesting a secret ballot election.
We look forward to the opportunity to discuss all
the issues with you. We shall continue to keep you
advised for further developments.
On August 18, CSTA filed a representation petition with
the Board. In the blank on the form for the description of
the unit involved, CSTA entered "As alleged by Union"
and then the unit as set forth in the Union's July 7 pro-
posed contract and in its withdrawn representation peti-
tion. As previously noted, these units, unlike the certified
unit, set forth maintenance employees as included therein.
Thereafter, Kahler and Younger were both advised
(Kahler by CSTA counsel and Younger by someone from
the Regional Office) that the Regional Director would
probably dismiss the August 16 charge. By letter to the
Regional Director for Region 5 dated September 20, 1976,
Younger stated. "I am hereby withdrawing without preju-
dice, case number 5-CA 8120 so that the Board can pro-
ceed as rapidly as possible on case number 5 RM-806,"
CSTA's election petition. There is no evidence that CSTA
received a copy of this letter. By letter to CSTA's counsel
dated September 23, 1976, the Regional Director stated
that the charge had been withdrawn with his approval.
Thereafter, CSTA requested the Director for leave to with-
draw its petition. By letter to CSTA's counsel dated Octo-
ber 6, 1976, with a copy to Younger, the Director stated
that he had approved the withdrawal of the petition with-
out prejudice. Kahler testified that CSTA decided to with-
draw its petition because the Union withdrew its petition
"which was evidence to me that they didn't have support
for an election and then the Union filed an unfair labor
practice . . . charge [which] was investigated by the Board
and I was told that the charge was going to be dismissed.
[The Union's withdrawal of the petition] more strongly
confirmed the doubt in my mind, and there was evidence
to me that the Board agreed that the Union no longer rep-
resented the bargaining-unit employees so as a result of
that we felt there was no reason to have the election." Kah-
ler could not "recall" the "exact reason" which CSTA
counsel had given for the projected dismissal of the charge,
"I guess it was a result of the [Board's] investigation."
On a date not clear in the record, CSTA orally told the
testimony that he sent it because Sharpe told him that he had refused a July
28 bargaining demand from Younger and Younger asked for the letter.
employees that it had withdrawn its petition because "we
had been advised, as a result of the Board investigation
they were going to dismiss the charge if the Union did not
withdraw it, so since they did withdraw it, this reconfirmed
my doubts, that it wasn't necessary any more." After being
so advised in a meeting with other employees, Cassidy
remarked to Supervisors Davis and Vogel, "I'm glad it's
over. It's a relief. Now, I can get back to being an employ-
ee.... I've gone to some expense for phone calls and
meetings that I have paid out of my pocket and the union
never reimbursed me."
In view of the Union's information regarding Kahler's
August 12 and 16 letters to the employees, the Union in-
ferred from CSTA's October 6 withdrawal of its petition
that CSTA did not really doubt the Union's majority. Be-
cause of this inference, by letter to Kahler dated October 7,
1976, Younger requested an immediate meeting with
CSTA for the purpose of resuming collective bargaining.
The Union received no response to this letter. When
Younger tried to reach Kahler by telephone, Younger was
shifted to Sharpe, who said that his position remained the
same, that CSTA would not bargain with the Union, and
that Younger should get in touch with CSTA Attorney
Schachter. On October 26, Younger filed the charge in the
instant case.
On November 6, 1976, Cassidy drafted (with minor
changes by Younger) and typed a second petition to Kah-
ler, which bore no date and stated, "We continue to be
represented by [the Union] and request that you resume
bargaining immediately." 18 Cassidy, Garland, and Chhab-
ara circulated this document among their fellow employees
and asked them to sign it. Cassidy told the employees that
CSTA felt the Union no longer represented a majority and
the employees would display the contrary to CSTA. Gar-
land told the employees that there would be no hard feel-
ings if they did not sign. Of about 43 employees in the unit,
some of whom were on vacation, 28 (including Cassidy and
Guy) signed the petition.19 In compliance with instructions
by Younger, Cassidy mailed this document by certified
mail to Kahler, who received it on November 26, 1976.
Kahler testified that, when he opened the envelope which
contained this document, he had no idea what would be in
the envelope, and that after reading the document he im-
mediately called counsel, to whom Kahler sent it at
counsel's request. Kahler further testified that the docu-
ment did not alter his doubt as to the Union's continued
majority status because "I had no idea under what condi-
tions those signatures had been obtained," and because of
the considerations "I stated previously [infra, II,D,2], the
series of events that took place, submittal of an election
petition, the withdrawal of it, dismissal of an unfair labor
practice charge, the Board's investigation of it, their deci-
sion and then the resubmitting of the same unfair labor
practice [charge] by the Union after they had withdrawn it
and I just assumed this was some more union games and
disregarded it." There is no evidence and no claim that
CSTA ever resumed recognition of the Union.
18 Cassidy could not recall whether the petition was proposed by him or
by Younger.
·9 A 29th purported signature on the document was unauthenticated.
274
COMPUTER SCIENCES-TECHNICOLOR
C. Alleged Interference, Restraint, and Coercion
I. Alleged statement by Overmyer at meeting attended by
bargaining-unit personnel
Employee Garland testified that, during May and/or
June 1976, Overmyer conducted two meetings, about a
month apart, which each lasted 45 to 60 minutes, were each
attended by 25 to 30 bargaining-unit employees, and at
which the employees brought up such problems as working
conditions, breaktime, and signing out timecards for lunch.
Garland named six day-shift employees and four supervis-
ors (including Davis and perhaps Setty) who attended.
Garland testified that, at one of these meetings, Overmyer
said that CSTA would never negotiate a contract with the
Union. According to Garland, this matter "likely" came up
toward the end of the meeting. He thought the discussion
was brought up by employee Gleason, but did not recall
what question he asked, or what Overmyer replied.20 Gar-
land could not recall the context of Overmyer's statement,
and was unsure about what else Overmyer said.2' Over-
myer testified that the only employee meeting he had held
during 1976 which was attended by only bargaining-unit
personnel occurred on June 10, when he told them about a
new Department of Labor wage determination which af-
fected them but did not discuss the status of negotiations. 22
Overmyer further testified that the only two employee
meetings during this period when he did discuss the status
of negotiations were held in May and early June and that
only one or two bargaining-unit employees attended each
of these meetings. He initially testified that "employees"
outside the bargaining unit "would ask the status of the
bargaining, not the company's position"; and that "The
response to the questions at the meeting in May was that
we are negotiating, that we are waiting for a complete pro-
posal from the Union before we return to the negotiating
table." Later, he testified that just one question was raised
by "individuals outside the bargaining unit." He denied
telling the May meeting that CSTA would never settle the
contract with the Union. He did not testify about his re-
marks at the early July meeting to which his testimony
alluded. Davis testified that no questions were raised about
the Union during the June 1976 meeting where the Depart-
ment of Labor wage determination was discussed, and that
he never heard Overmyer state that CSTA would not nego-
tiate with the Union. Setty testified on CSTA's behalf, but
20 There is no record evidence to support the assertion in CSTA's brief
that Gleason's separation occurred in February 1976. The record fails to
show the date.
21 Garland first testified that Overmyer said the Union had been request-
ing retroactivity as a condition for settling the contract. Then. Garland
testified that this was one of the conditions, but he did not recall Overmser's
saying that. Garland first testified that Overmyer "may have" mentioned
that an election petition was pending and that the Union had withdrawn its
petition, then that he recalled some discussion about the Union's withdraw-
ing its petition, and then that he did not recall any such discussion. (As
previously noted, the Union filed its petition in late July and withdrew it in
early August. Garland dated the meeting described in the text as May or
June.)
22 Garland denied that, at the meeting described in Garland's testimony,
Overmyer mentioned that CSTA had just entered into a new contract with
the Government for the project.
was not asked about this matter.
The demeanor of Overmyer and Davis cast doubt on
their reliability as witnesses, whereas Garland impressed
me as an honest witness. Furthermore, although Garland
was unable to recall or was uncertain about some of the
statements made at the meeting, he did specifically recall
some of the subjects discussed there and the names of a
number of those who attended. Moreover, Overmyer did
not deny making at an employee meeting held by his own
testimony in early July the statement to which Garland
attached a May or June date, and Overmyer's testimony
that questions or a question about the status of negotia-
tions proceeded only from nonunit employees seems some-
what unlikely. Accordingly, I credit Garland as to the inci-
dent described in this section.
2. Alleged statements by Setty to Kerns
In January, February, and March 1976, employee Kerns
occasionally wore to work a T-shirt with the Union's name
and logo on it. In June 1976, Setty, Kerns' immediate su-
pervisor, gave Kerns his semiannual performance review.
Kerns' written performance review stated that in every ca-
tegory he met the expectations of the job, without being
above or below requirements. Kerns asked why he was rat-
ed only average in all these respects. Setty said that, under
the circumstances, all he could rate Kerns was as an aver-
age employee. Kerns said that he thought his 14-cent in-
crease was too low. Setty said that it was better than most
people Rot and the most he could expect under the circum-
stances. 3
Kerns testified on direct examination that Setty also said
that Kerns did not have the right attitude, the Union was
screwing him, CSTA was screwing him, and Kerns would
be better off somewhere else, would make more money
somewhere else. On cross-examination, Kerns did not dis-
pute the assumption expressed in CSTA counsel's exami-
nation that this conversation with Setty concerned the
Union, but Kerns' own account of the conversation on
cross-examination does not allude to the Union, and when
CSTA counsel asked whether this was all he remembered
of the conversation, he said, "Yes, I think so." Setty denied
Kerns' testimony about the reference to the Union. Setty
further testified that Kerns wanted to know whether he
would be able to advance, and Setty replied that Kerns was
doing an average job and there was no reason why he
could not advance.
Kerns further testified that, on a Saturday when he was
working overtime, Setty told him that he was working up to
his full potential but did not have the right "attitude."
Kerns dated this conversation as September 23, 1976,
which was a Thursday. When asked whether Setty had any
discussion with Kerns about his employment, Setty replied,
"Not on the 23rd." Setty further testified that Kerns "could
have" worked on a Saturday in September 1976. 1 credit
Kerns' essentially undenied testimony as to the content of
21 Kerns testified that he later asked a few of his fellow employees what
their increases were, and their replies squared with what Setty told him.
CSTA's counsel subsequently examined Kerns' personnel file. There is no
other evidence regarding how his increase compared with those given other
employees.
275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this conversation, which I find occurred about Saturday,
September 25.
CSTA's brief contends that Kerns' testimony should be
rejected because of Supervisor Davis' testimony that in late
May or early June Kerns asked him what "proceedings the
people could go through to decertify the Union." 24 How-
ever, because Kerns signed both the August and November
prounion petitions, because he wore prounion insignia in
the plant in January through March, and for demeanor
reasons, I accept Kerns' denial of the inquiry Davis attrib-
uted to him, and discredit Davis' testimony in this respect.
CSTA's brief also points to a "promotion" which Kerns
later received to "class A Photo Technician." However.
employee Smith credibly testified without contradiction
that this classification did not exist until November or De-
cember 1976, and Kerns did not receive this classification
until December 1976, 5 or 6 months after his first conversa-
tion with Setty and 4 or 5 months after CSTA withdrew
recognition from the Union.25 For demeanor reasons, I
credit Kerns as to this first conversation, notwithstanding
his failure on cross-examination to allude to Setty's refer-
ence to the Union.
3. Alleged Statement by Setty to Chhabara
In late June or early July 1976, Supervisor Setty had one
or two conversations with Chhabara about his dissatisfac-
tion with his job.26 Setty testified that such a conversation
occurred in connection with Chhabara's semiannual re-
view, that he said that he was "very concerned about his
position at work," that Setty explained to him why he was
receiving "just an average review," that Chhabara "seemed
to be happy," that he wanted to know "where he could go
within the company," and that he said "he was basically as
high as he could go in his position and it was financial
from there on as far as promotion to the-the next promo-
tion would have been to a supervisory level." Setty went on
to testify that later, but still about late June or early July.
Chhabara told him that Chhabara "was unhappy, that he
wanted to leave the shift and go to another shift,27 or was
looking for another job [with] another company . . . he
was considering that, that he didn't feel he was getting
ahead.... I told him, if he wished to go out, there was
nothing I could do about it." Setty denied ever telling
Chhabara that he was being screwed by the Union and
CSTA and he would be better off looking for another job.
Chhabara testified that he told Setty that he was not get-
ting anywhere with "this job" and that Setty said that
Chhabara "was being screwed by the Union, by the com-
pany and [he] should be better off looking for another job."
Chhabara wore a union tie, pin, and T-shirt around the
shop, but the record fails to show when he did this. He also
24 On cross-examination, Davis testified that Kerns used the word "decer-
tify;"
When asked the date on cross-examination. Kerns gave December
1976. In view of Smith's testimony summarized in the text. I accept this dale
even though Kerns then answered "Yes" to the question on cross-examina-
tion. "So you received a promotion in September of '76?"
26 My finding as to the date is based on Setty's testimony. Chhabara
testified to a conversation in 1976. prior to August of that Near,
z7 Chhabara's shift began about 4 p.m. and ended about midnight
signed and helped circulate the prounion petitions in Au-
gust and November 1976.28
I regard as somewhat incongruous Setty's testimony that
Chhabara was, concomitantly, "happy" with his average
review, concerned with "where he could go within the com-
pany," and considering "getting ahead" by changing shifts.
For this and demeanor reasons, I credit Chhabara even
though, when being interviewed by a Board agent before
the hearing, he did not refer to this incident when asked if
anyone had ever threatened or discriminated against him
because of his union activities.2 9 Although Chhabara did
testify that he had told "people in the lab" that "the pres-
sure of being a supervisor was too much to take," 30 there is
no evidence that Setty knew this; Setty's version of
Chhabara's statements is inconsistent with any such views
by Chhabara, and Chhabara had not reached the maxi-
mum pay level for senior technician, the highest paid non-
supervisory classification.
4. Alleged statement by Overmyer to Garland
Garland testified that, from time to time before about
August 1976, he asked Overmyer what was going on with
the Union, and he replied nothing, that CSTA was waiting
for the Union to send its proposals. Still according to Gar-
land, on a date between August 3 and 9, 1976, when he
again asked Overmyer this question, Overmyer said that
CSTA "would never negotiate a contract with the Union or
pay any retroactive pay," and "probably." or "may have,"
said that, as long as the Union insisted on retroactive pay,
CSTA could not agree to the Union's proposals. Garland
credibly testified that he did not feel "personally threat-
ened" by the statement that CSTA would never negotiate a
contract with the Union, but did feel from this statement
that "what the hell is the use of pursuing anything further
.... Overmyer ... is one of the key people that makes
decisions. He has the authority to negotiate. Now if that is
his opinion what can we do to come up with a negotiation.
The job we have is such that we can't go on strike. It
wouldn't hurt anybody, we can't force them to negotiate."
Overmyer testified that on a "half dozen" occasions Gar-
land asked him about the status of negotiations: that dur-
ing one of these conversations in late January Overmyer
mentioned retroactive pay; that he did not discuss this with
Garland in either July or August; that during conversa-
tions with Garland before July 23 he told Garland that
"from the January 13 date on, [CSTAJ had taken the posi-
tion ... that litl would not return to the bargaining table
until the Union had submitted to us a formal contract pro-
posal"; and that, after July 23, he told Garland that CSTA
2' Supervisor Michael Taylor testified without contradiction that, about
Juls 1976. Chhabara told Taylor that he was dissatisfied with both the
Union's and C(STA's conduct during negotiations. Taslor did not report this
conversation to Kahler or other members of management
21 Chhabara also replied in the affirmative to the questions. on cross-
examination. "Isn't it a fact that Mr. Setty did tell you that you had gone as
far as you're going to go in the company [and] if you are not satisfied with
the classification that you have now, you would be better off looking for
another job?" Ilowever, counsel's question set forth an accurate. although
incomplete. summary of Chhabara's prior version of the conversation
' tle had been a supervisor while working for a prior contractor at the
Center. tie denied preferring not to be a supervisor because of that pressure
276
COMPUTER SCIENCES-TECHNICOI.OR
had withdrawn recognition from the Union and negotia-
tions were not going on. Overmyer denied ever telling Gar-
land that CSTA would never negotiate a contract with the
Union. and denied telling him in July or August that
CSTA would never pay retroactive pay.
Because no contract negotiations took place after Janu-
ary and CSTA withdrew recognition in late July, I con-
clude that Garland was mistaken in attributing to a date as
late as early August Overmyer's statements concerning ret-
roactive pay, and I conclude that they were made during
earlier conversations between the two. However, for de-
meanor reasons, I credit Garland's testimony that Over-
myer said in early August that CSTA would never negoti-
ate a contract with the Union.
5. Alleged statements by Setty to Smith and Chhabara
On August 16, 1976, employees Smith and Chhabara,
both of whom were working on the same 4-p.m.-to-mid-
night shift, had a discussion between themselves in the lab-
oratory about which one would attend a union meeting
scheduled for 5:30 p.m. that day and which would cover
the work station. Supervisor Setty came into the laboratory
and told them that "the people across the hall" thought
that both should attend the meeting as long as there was no
immediate work pressing. Setty said that they would be
"docked" for the time they spent at the meeting. Both em-
ployees did attend, and then came back to work. When
they returned, they found Setty, whose regular quitting
hour was 4 p.m. but who on occasion worked late. Sett)
started to make factual allegations about the Union, and
Smith responded by telling Setty about types of strikes.
Setty did not in terms ask him what happened at the meet-
ing.
On the following day, Supervisor Mike Taylor 3 came
up to Smith and said that "for every grievance or for ev-
erything the Union was asking for, there was somebody in
the lab who had a legitimate grievance and a right to ask
for that." Setty said that the Union would never get the
contract settled because CSTA would not settle the con-
tract that the Union was asking for, that the Union had
"screwed [the employees] over and they' were never going
to get anything again" and that the Union "had [obscenity]
him over and always would." Setty further said that the
CSTA lawyers were glad the unfair labor practice charge
had been filed because it would be an immediate 6-month
delay in which they would not have to negotiate. Setty also
said that CSTA had "hired a very professional law firm
and it would be very hard for the union membership." Set-
ty said that he had been told by management to get infor-
mation from Smith and Chhabara about what had hap-
pened at the union meeting and to feed it back to
management. Smith said that the employees had discussed
some of the things they were asking for, including a guar-
anteed 40-hour week. 32
My findings as to this conversation are based on a com-
l The transcript erroneously refers to him as "Mike Kahler" (Kahler
rh[mes with Taylor.)
Smith testified that "at that particular moment" he did not feel threal-
ened by Sett)ys questioning. but that Smith "felt he was prevailing upon a
fnendship to find out what happened"
posite of Smith's and Chhabara's testimony.33 Setty testi-
fied that he and Smith were talking "about the ruling
which was made by the Labor Board about whether the
Labor Board ruled in favor of the pending action which
was in front of them and whether they could legally strike;
if they struck and the ruling was against them, that they
could be replaced.... I told him it had been explained
that if they struck, if it was illegally, that they could be
replaced and that was my knowledge of the matter." Tay-
lor testified that Smith and Setty discussed whether a per-
son striking without union or NLRB sanction could be re-
placed, and that Setty said he did not know. In view of the
inconsistency between their versions of what was said, I
discredit both versions. For demeanor reasons, I discredit
Setts's denials that he told Smith that Setty was told to
pump him about what happened at the union meeting, that
the Union had screwed the employees over, that the attor-
neys were happy that the Union had filed charges because
now it would take 6 months to negotiate, or that CSTA
would not negotiate a contract with the Union." To the
extent inconsistent with Smith's testimony, I discredit for
demeanor reasons and, in view of indirect corroboration of
Smith by Cassidy (see infra), Setty's denial that he said
CSTA had hired a professional law firm and it would be
hard for the Union to negotiate, and his testimony that he
merely said that CSTA had a law firm with a "very good
reputation." 3s
6. Alleged statements by Setty to Cassidy
Employee Cassidy' credibly testified, with some corrobo-
ration from Setty. that in the latter part of August 1976
Setty told Cassidy that CSTA's New York law firm "was a
very competent and capable organization and that if we
ever settled our matters with the Union," that law firm
would be a very competent and a very difficult organiza-
tion to deal with. Cassidy further credibly testified that
during this same conversation Setty said that the Union's
wage demands could not be paid because the employees'
wages were ultimately paid by NASA, which was on a rela-
tively tight budget. On direct examination, Cassidy testi-
fied that Setty said that, because of the "union situation,"
it would be better for the employees to seek other employ-
ment. On cross-examination, he testified that Setty said, in
substance, that the possibility of Cassidy's job going on for
any period of time was slim, and that perhaps in I or 2 or
3 Chhabara wsas present during only part of the conversation He credl-
hbl testified that he was "in and out .going backwards and for, ards.-
and was about 2 feet away from Settw's desk during the part or the conversa-
tion which Chhabara overheard For demeanor reasons. I do not credit
Tayllor's testimony that during this conversation (Chhabara was sitting in a
chair and not working.
14 Ilnlike C'ST . I see no inconsistency between Smith's testimony that
Setts started to make factual allegations about the Union on the employees'
return from the meeting and Smith's further testimony that, after this tactic
failed to stimulate any informatlon from the employees about it. Setty told
theim on the following daN that he had been told to "pump" them about it
.' I.lalor testified that he did not "recall" discussing grievances. or Setty's
saying that he x as told to "pump" employees about what had happened at
a inion meeting. or that the company lawsers were glad the Union had filed
the charges. or that CSI A would not negotiate with the Union However.
Taslior via absent during part of this consersation In any event. for de-
meanor reaslns. I regard Smlith's and Chhabara's unequivocal testimons as
more rehahbl Ihan Tal!lor's equivocal denials.
277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 years there would not be a job there, but further testified,
in effect, that Setty did not in terms attribute such poor job
prospects to the Union.3 6 In describing this conversation,
Cassidy's prehearing affidavit does not refer to any re-
marks concerning his job prospects. Setty was not asked
about this aspect of the conversation. As to the portions of
the conversation dealt with after the first two sentences of
this paragraph, I accept Cassidy's version on cross-exami-
nation. Cassidy credibly testified that Setty was a friend of
his, that Cassidy's leadership in the union movement was
openly displayed throughout the plant, that his union sym-
pathies were common knowledge to everybody, and that
Setty had previously discussed the Union with him. Setty
did not deny awareness of Cassidy's union leadership.
7. Alleged statements by Setty to Smith
When first taking over the job in May 1973, Respondent
announced that nobody could be promoted to the job of
senior photo technician without 8 years' experience. On
August 28, 1976, employee Steven Monk and Fred Pierce
were promoted from class B photo technician to senior
photo technician.3 7 At or around this time, both Monk and
Pierce had vocally expressed themselves to employee Smith
as opposing the Union; but there is no contention or evi-
dence that CSTA knew this or in fact discriminated against
Smith to discourage union activity. Smith, who was then a
class B photo technician, approached Supervisor Setty and
said that Smith did not think that Monk had the 8 years'
experience requisite for the promotion. The testimony con-
flicts as to the substance of the rest of their discussion.
Smith testified as follows: Setty replied that Monk's
qualifications had nothing to do with his promotion and
that he had been promoted because of the job that he was
doing at the time. Smith asked if his own qualifications
were lacking in any manner. Setty replied no, that within a
few days he would be firing another employee, who was a
senior photo technician, and that Setty would be putting
Smith up for the dischargee's slot for promotion. Smith
asked what future he had with Respondent. Setty said that,
because of the situation with the Union, Smith would never
get any further than he was and would be better off look-
ing for another job, for instance, a company called "E Sys-
tems" which had previously hired a number of Respon-
dent's employees.
Setty testified that, when Smith asked about Monk's ex-
perience, Setty replied that the previous supervisor had
brought this to Setty's attention and he would look into it.
Still according to Setty, Smith's future with CSTA was not
discussed at that time. Setty went on to testify that, a day
or two later, Smith said that he felt he was not going any-
where with CSTA and would perhaps have to look else-
where; to which Setty replied that, if this was his feeling,
maybe he should look elsewhere. Setty denied any conver-
36 Cassidy testified ItI a "suspicion" that the laboratory would he elimi-
nated because of some new and improved methods.
My finding as to the date is based on the testimony of Supervisor Setly.
the production control supervisor of the photo lab. For demeanor reasons, I
do not accept the testimony of employee Smith that these promotions oc-
curred in late July or early August.
sation with Smith about advancing with CSTA, or telling
him that, because of the union situation, he would not get
anywhere and would be better off looking for another job.
Further, Setty testified that Monk did indeed have the re-
quisite 8 years' experience.
Smith testified that he knew E Systems had been hiring
but never applied for a job there. It is undisputed that, in
December 1976, Smith was promoted to the newly created
classification of class A photo technician, a job which pays
more than class B technician although less than senior
technician.
Because Smith's testimony that he was told he would get
no further with CSTA is inconsistent with his further testi-
mony that during the same conversation he was promised a
promotion when a senior technician was fired, and is to
some extent rendered questionable by Smith's subsequent
conduct and employment history, as to the foregoing inci-
dents I credit Setty to the extent his testimony conflicts
with Smith's.
D. Analysis and Conclusions
1. The alleged independent violations of Section 8(a)(l)
I agree with the General Counsel that CSTA violated
Section 8(a)(1) of the Act when (a) Supervisor Overmyer,
in May or June 1976, told a meeting of the bargaining-unit
employees that CSTA would never negotiate a contract
with the Union; 38 (b) in June 1976, Supervisor Setty told
employee Kerns, in effect, that his union activity had ad-
versely affected or might adversely affect his performance
rating, and that he did not have the right attitude, the
Union was screwing him, CSTA was screwing him, and
Kerns would be better off somewhere else, would make
more money somewhere else; 39 (C) Setty told Kerns in late
September 1976, after Kerns had signed the August pro-
union petition, that he was working up to his full potential
but did not have the right "attitude"-which I interpret as
essentially a reiteration of Setty's statement to Kerns in
June; 40 (d) Setty told employee Chhabara, in late June or
early July 1976, that he was being "screwed" by the Union
and CSTA and would be better off looking for another job
(supra, fn. 39), and (e) Setty attempted on August 16 to lure
employees Smith and Chhabara into revealing information
about the union meeting they had just attended, and told
I3 American Building Components Company, 203 NLRB 811, 815 (1973).
3 Ramar Dress Corp.; Samuel Todaro Individuall., 175 NLRB 320. 327
(1969); Padre Dodge, 205 NLRB (1973); Roman Catholic Diocese of Brook-
lvn and St. Leo's Parish, etc.. 221 NLRB 831 (1975), enfd. 535 F.2d 1387
(C.A. 2. 1976); Carter Lumber, Inc.., 209 NLRB 929, 934 (1974), enfd. 89
L.RRM 2421, 76 ¶110,785 (C.A. 6, 1975).
40 The complaint as amended alleges that CSTA violated Sec. 8(aX){) by.
inter alia, "The conduct of Paul Setty on various occasions in August. 1976,
and on or about September 23rd. 1976. the exact dates being unknown to
the undersigned, in interrogating employees concerning their activities on
behalf of the Union.' (par. 64a) ), and by "the conduct of Paul Setty in June.
July and/or August 1976, the exact date being unknown to the undersigned.
in telling employees that because of the situation with the Union, they
would be better off looking for other employment." (par. 6(c).) I find that
what was said during the September 1976 Setty-Kerns conversation was
fully litigated, and that it does not constitute a violation under par. 6(a) but
does constitute a violation under par. 6(c). I regard as insubstantial the
variance between the August 1976 date alleged in the complaint and the
September 1976 date of the event.
278
COMPUTER SCIENCES-TECHNICOLOR
them on the following day that Setty had been told by
management to get information from them about what
happened at the union meeting and to feed it hack to man-
agement.4 ' Because of my finding infra that CSTA violated
the Act by withdrawing recognition from the Union in late
July 1976, I further find that CSTA violated Section 8(a)(1)
by telling Garland in early August that CSTA would never
negotiate a contract with the Union, and by telling Smith
and Chhabara in mid-August that CSTA would never get
the contract settled because CSTA would not settle the
contract that the Union was asking for (see supra, fn. 38).
However, I conclude that no violation of Section 8(a)(I)
occurred during Setty's late August conversation with em-
ployee Cassidy. In this conversation Setty did not say that
CSTA would never negotiate a contract with the Union,
but merely said that CSTA's new law firm would be hard
bargainers. Nor did Setty expressly or impliedly base on
the "union situation" his gloomy comments about
Cassidy's job prospects.
2. The withdrawal of recognition
In Pioneer Inn Associates, d b/a Pioneer Inn and Pioneer
Inn Casino, 228 NLRB 1263. 1265 (1977), the Board "reaf-
firmed the principles set forth in Terrell Machine Companv,
173 NLRB 1480, 1480-81 (1969), enfd. 427 F.2d 1088 (C.A.
4, 1970) Icert. den. 398 U.S. 920], where the Board stated:
It is well settled that a certified union, upon expiration
of the first year following its certification, enjoys a
rebuttable presumption that its majority representa-
tive status continues. This presumption is designed to
promote stability in collective-bargaining relation-
ships, without impairing the free choice of employees.
Accordingly, once the presumption is shown to be op-
erative, a prima facie case is established that an em-
ployer is obligated to bargain and that its refusal to do
so would be unlawful. The prima facie case may be
rebutted if the employer affirmatively establishes
either (1) that at the time of the refusal the union in
fact no longer enjoyed majority representative status;
or (2) that the employer's refusal was predicated on a
good-faith and reasonably grounded doubt of the
union's continued majority status. As to the second of
these, i.e., "good faith doubt." two prerequisites for
sustaining the defense are that the asserted doubt must
be based on objective considerations and it must not
have been advanced for the purpose of gaining time in
which to undermine the union. [This second point
means, in effect, the assertion of doubt must be raised
"in a context free of unfair labor practices." See Nu-
Southern Dyeing & Finishing, Inc., 179 NLRB 573, fn.
I (1969), enfd. in part 444 F.2d II (C.A. 4, 1971)1.
In the instant case, there is no evidence or claim that the
Union had in fact lost its majority status. On the contrary,
the August and November 1976 petitions establish that the
Union maintained the substantial majority it had demon-
strated in the September 1974 election. Rather, CSTA de-
41 Lutheran tlorpirtal [,f i, lr. In., 224 NL RB l176 178 (1976). enfd.
in pertinent part 564 t.2d 208, 211 212 (( 4A 7, 1977).
fends its July 23, 1976, withdrawal of recognition and its
August 12, 1976, refusal to resume recognition on the
ground that such action was predicated on "good faith
doubt" within the meaning of the Terrell class of cases. I
agree with the General Counsel that this contention is
without merit.
Vice President/General Manager Kahler testified that
CSTA withdrew recognition from the Union because,
There was a large turnover in the bargaining unit.
There was the dissatisfaction of the employees evi-
denced on several occasions . . . with the way the
Union was handling activities for them. There was the
circulation of a decertification petition and the
Union's own acknowledgement of this dissatisfaction
and decertification activity in a letter to the employ-
ees. There was the Union's indifference to the employ-
ees and to the negotiations themselves. The fact that
we went for a period of over 6 months and never
heard a word from them. There was the threat of
strikes, calling of strikes that never materialized. The
turnover in the employee committee and the reluc-
tance of the Union to let the employees participate in
the bargaining and the totality of everything that took
place from the time of certification.
In connection with the employee turnover contention,
Kahler and Overmyer testified that, in the latter part of
June 1976, Kahler asked Overmyer to prepare an analysis
of the turnover in the bargaining unit since the Board elec-
tion. Overmyer testified that, in accordance with Kahler's
instructions, he analyzed the number of people that were
eligible to vote in the September 1974 Board election and
the number "remaining employed under the contract." He
testified that he reported his findings to Kahler, but did not
testify about just what he found or just what he told Kah-
ler. Kahler testified that, on July 19, it was reported to him
that 70 employees were in the bargaining unit at the time of
the certifications and that as of July 19, 1976, 40 were no
longer there and 13 new employees had been hired. Kahler
testified that he did not know the identity of these 13 new
employees, or whether they had signed union authorization
cards.
However, although CSTA had the burden of affirma-
tively showing the objective considerations on which its
asserted doubt was predicated (Terrell, supra; Pioneer Inn,
supra), and although probative evidence of turnover was
peculiarly within CSTA's control, CSTA submitted no
such probative evidence, such as its payroll records, about
what its turnover actually was during this penod. Cf.
Teamsters Local Union 769 [Peoples Gas] v. N.L.R.B., 532
F.2d 1385, 1391-92 (C.A.D.C., 1976); International Union,
United Automobile. Aerospace and Agricultural Implement
Workers (UA W) /G'rodyne] v. N.L.R.B., 459 F.2d 1329,
1335-42 (C.A.D.C., 1972). Moreover, it cannot be pre-
sumed that the terminations consisted disproportionately
of union adherents and the new hires disproportionately of
employees who did not want union representation; rather,
4' Unlike (Oermser he did not couch his testimon) in terms of eligibility
to vote In the election. Employees hired between the eligibility date and the
electioln land. of course. those hired between the election and the certifica-
lion) would he ineligible About 65 emplovees had been eligible to vote
279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new employees are presumed to support the union in the
same proportion as those replaced.43 I note that 77 percent
of the opened ballots in the September 1974 election fa-
vored the Union.
Nor can the employees' failure to strike, notwithstanding
repeated strike threats and at least one overwhelming strike
vote, constitute a reasonable ground for doubting the
Union's majority, particularly because CSTA knew of the
Union's policy against strikes on Government installations
like the Goddard Space Flight Center. See Kentuckly Newas.
Incorporated, 165 NLRB 777, 779 (1967). Indeed, no infer-
ence of nonsupport can be drawn from employees' failure
to participate in a strike which their bargaining representa-
tive has actually called. Coca Cola Bottling Works, Inc., 186
NLRB 1050, 1053 (1970), enfd. in material part 466 F.2d
380, 393-394 (C.A.D.C., 1972). See also Terrell, supra, 173
NLRB at 1482, fn. 9.
As to the evidence of dissatisfaction with the Union, on
which evidence Kahler assertedly relied in withdrawing
recognition in late July 1976, Kahler testified that in the
late fall of 1975, when Supervisor Manning resigned be-
cause of illness and his employee wife also resigned, Mrs.
Manning (whose prior sentiments about the Union Kahler
did not know) said that she was inactive in bargaining unit
affairs; that the employees were confused and concerned;
that they were unhappy with the way the Union was han-
dling activities for them; that they wanted to get rid of the
Union but their representatives told them that, if they did,
the Company would take retribution against them; and
that employees whose number she did not state had ap-
proached another union.4 Still in connection with the basis
for his alleged doubt of the Union's late July 1976 majori-
ty, Kahler testified to (I) an alleged report made to him by
Supervisor Davis, prior to spring 1976 but Kahler could
not remember the year, that one employee had asked Davis
about how to go about obtaining a decertification; (2) a
November 1975 report from then Personnel Manager Ko-
lorn that one bargaining-unit employee had approached
management requesting a meeting for five others to discuss
complaints; (3) a report from Sharpe, to which Kahler did
not attach a date, that at that meeting the employees ex-
pressed a doubt that "any negotiations were taking place
and they expressed disbelief that the Company was partici-
pating in negotiations, and . . . they asked [Sharpe] if they
could be permitted to attend the meetings and he advised
them to discuss that with the Union"; (4) the fact that, as
of late July 1976, CSTA retained in its employ only two of
the five members of the committee which had attended the
November 1975 negotiations on the Union's behalf and, so
far as he knew, nobody had replaced the committee mem-
bers who had left; (5) an alleged spring 1976 report from
43 Strange and Lindsey Beverages. Inc. and Dr. Pepper Bottling Co., d b a
Pepsi-Cola-Dr Pepper Bottling Co, 219 NLRB 1200. 1201 (1975). V1 R.B.
v. Washington Manor, Inc., d/ba Washington Manor Nursing Center (Suth),.
519 F.2d 750, 753 (C.A. 6, 1975); Peoples Gas, supra, 532 F.2d at 1391. fn
20.
" Kahler also testified, wiithout giving dates, that "on occasion." emplou,-
ees would mention that they were "dissatisfied the way things were going"
Unlike CSTA's brief, I do not equate this testimony as "remarks by bargain-
ing unit employees that they had become disenchanted and dissatisfied with
the Union and the manner in which it had been representing their interests."
Overmyer, to which Overmyer did not allude although he
did testify that such an incident had occurred, that two
employees had asked him how to go about obtaining a
decertification; and (6) the Union's May 24, 1976, letter,
which Kahler first saw in late spring 1976, stating that
some employees were circulating a petition for decertifica-
tion.
Kahler further testified that, after July 23, his alleged
doubt of the Union's continued majority was reinforced by
the Union's action in filing a representation petition, the
Union's August 11 withdrawal of that petition, CSTA's
counsel's report to him that the Union's refusal-to-bargain
charge was going to be dismissed (on grounds which he did
not know and which are not shown by the record), and the
Union's September 10 withdrawal of the charge.4 5
However, some of the objective factors from which Kah-
ler allegedly inferred employee dissatisfaction did not real-
ly exist. Thus, the employees' November 1975 remarks to
Sharpe about the status of bargaining consisted of expres-
sions of skepticism about whether CSTA was bargaining
with the Union, and not expressions of dissatisfaction with
any conduct by the Union. Moreover, the Union in fact
permitted employees to attend collective-bargaining ses-
sions, the Union in fact had repeated contacts with CSTA
between January 1976 and July 1976, and Davis was not in
fact approached by any employee who wanted to learn
how to decertify the Union.' Because a member of man-
agement had accurate, firsthand knowledge of each of
these events, CSTA could not rest a claim of good-faith
doubt on any erroneous management report to Kahler
about what had happened. Jackson Sportswear Corporation,
211 NLRB 891, 902 (1974). Furthermore, an employer who
seeks to establish the existence of objective facts sufficient
to warrant doubt of continued majority is not privileged to
close his eyes to all objective facts pointing otherwise. Ter-
rell, supra (see infra, fn. 48). However, Kahler allegedly re-
lied on resigned employee Manning's late fall 1975 state-
ments to him about employee dissatisfaction with the
Union, without (so far as the record shows) affording any
weight whatsoever to the employees' November 10, 1975,
public demonstration in favor of the Union and the em-
ployees' display of union insignia in spring 1976.47 More-
over, Kahler allegedly relied on reports of decertification
activity which so far as the record shows never produced
any document of any kind, while refusing (admittedly for
the purpose of avoiding any obligation to recognize the
4" Under Board procedures. such withdrawal removed a bar to the con-
duct of the election requested by CSTA's pending petition. NLRB Field
Manual. Secs. 11730- 11730.2 (June 1971). However, there is no evidence
that Kahler knew about the effect of the charge or its withdrawal on the
availability of an election.
4 Setty testified that, in early June 1976, Kerns approached him and
"said (Kernsl was very uptight, that the people in his area were giving him a
had time. Thes even wanted him to know if I knew how he could go about
decertifying the Union." Setty further testified that he replied that he would
look into it or have someone get hold of Kerns In addition. Setty testified
that he reported this incident to Supervisor Davis. Kerns credibly denied
asking Settn about how to decertify the Union. and Davis did not testify
about Setty's alleged report. I discredit the testimony of Setty summarized
in this footnote.
7 In Terrell, 427 F.2d at 1090, the Fourth Circuit stated that the employer
could not support a "good faith doubt" claim by pointing to reports of
employee dissatisfaction, especially when the employer received contradic-
tory reports that all the employees wanted the union
280
COMPUTER SCIENCES-TECHNICOLOR
Union) to accept the employees' August prounion peti-
tion.4 8 Also, while assertedly relying (somewhat inconsis-
tently) on both the Union's action in filing the representa-
tion petition and its action in withdrawing that petition,
Kahler disregarded the November employee petition in
which an overwhelming majority of the employees request-
ed CSTA to resume recognition of the Union (cf. supra, fn.
48).
4 9
Furthermore, I conclude that, in determining whether
objective considerations warranted doubt of majority, little
or no weight should be accorded either to CSTA represen-
tatives' evaluation of the Union's conduct of the bargain-
ing to be of quality so poor that the employees must have
changed their minds about wanting the Union; 50 or to the
employees' failure to replace by late July 1976 members of
the bargaining-observation committee who had left CSTA,
where no committee had existed between the Union's Oc-
tober 1974 certification and November 1975, the commit-
tee had (so far as the record shows) been wholly inactive
after mid-November 1975, and no bargaining had taken
place after late January 1976.
For the foregoing reasons, I conclude that the record
fails to show objective considerations, either individually
or in totality, on which a good-faith and reasonably
grounded doubt of the Union's continued majority could
be based. The instant case is distinguishable on its facts
from Southern Wipers, Inc., 192 NLRB 816 (1971), where
there was no affirmative evidence of continued majority
status, there had been a turnover of 398 employees in a
unit of 100 since the certification election, and the em-
ployer had heard nothing about bargaining from the union
for more than 5 months before withdrawing recognition.
In any event, CSTA's professed doubt of the Union's
majority does not constitute a defense to its refusal to bar-
gain with its employees' certified representative, because
such doubt was not asserted in a context free of unfair
labor practices. Pioneer Inn, supra, 228 NLRB 1263. Begin-
ning about May 1976 and before CSTA's late July with-
drawal of recognition, management directed at bargaining
unit employees various unlawful statements consisting of a
statement to an employee meeting that CSTA would never
sign a contract with the Union, statements to employees
that because they were being badly treated by the Union
and CSTA they would be better off working elsewhere, and
a statement to an employee that his union activity had
adversely affected or might adversely affect his perfor-
mance rating. After the withdrawal, CSTA continued to
engage in unfair labor practices which included additional
statements that CSTA would never negotiate a contract
with the Union and an assertion that management was
41 In Terrell, supra, an employer was found to have unlawfully withdrawn
recognition from a certified union, and unlawfully refused to resume bar-
gaining, where during the interval between these two events the union of-
fered to submit to a card check and the employer refused to consider the
proffered showing.
49 CSTA's brief contends that this petition was unreliable because it was
undated. However. Kahler did not testimonially refer to this factor, and
there is no evidence that he ever asked the Union about the date.
50 This contention is somewhat difficult to reconcile with CSTA's further
contention that the Union was being unproperly secretive with the emplos-
ees about the negotiations.
trying to find out from employees what was happening at
union meetings. Such unfair labor practices after July 23
form part of the unfair labor practice context relevant to
precluding a good-faith-doubt defense as to the July 23
withdrawal of recognition, as well as to CSTA's subsequent
refusal to resume recognition. Terrell, supra; Cornell of Cal-
ifornia, Inc., 222 NLRB 303, 307 (1976); Boren Clay Prod-
ucts Co., 174 NLRB 895 (1969), enfd. 419 F.2d 385 (C.A. 4,
1970). Moreover, because the events on which Kahler
based his asserted good-faith doubt occurred as earl) as
November 1975, and because CSTA's action in photo-
graphing the participants in the November 1975 prounion
demonstration would have called for an unfair labor prac-
tice finding if alleged in a complaint based on a timely
charge," I regard the relevant context as including such
conduct even though it occurred more than 6 months be-
fore the service of the charge herein and, therefore, cannot
itself form the basis for an unfair labor practice finding.
Wanda Petroleum, Division of Dow Chemical Company, 217
NLRB 376, (1975) enfd. 90 LRRM 334 1976-77 CCH
NLRB ¶17,745 (C.A. 5, 1977).
For the foregoing reasons, I find that CSTA violated
Section 8(a)(5) and (1) of the Act by withdrawing recogni-
tion from the Union on July 23, 1976: by refusing to re-
sume recognition on August 12, 1976: and by withholding
recognition at all times after July 23, 1976.
CONCLUSION S OF LAW
I. CSTA is 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( i 1) of the Act.
3. CSTA has violated Section 8(a)(1) of the Act by tell-
ing employees that CSTA would never negotiate a contract
with the Union; by telling an employee that his union ac-
tivity had interfered with or might interfere with his perfor-
mance rating; by telling employees that because of the
Union's and CSTA's activities they would be better off
looking for another job; and by telling employees, after
unsuccessfully attempting to lure them into revealing infor-
mation about a union meeting, that management had is-
sued orders to get information from them about what had
happened.
4. The following unit is appropriate for collective bar-
gaining purposes within the meaning of Section 9(c) of the
Act: All laboratory employees engaged in photo processing
and quality assurance employed by CSTA at National Aer-
onautics and Space Administration's Goddard Space
Flight Center located in Greenbelt, Maryland, excluding
all other employees, all office clerical employees, guards,
and supervisors as defined in the Act.
5. At all times on and after October 4, 1974, including
all times on and after July 23, 1976, the Union has been the
exclusive and duly certified bargaining representative of
the employees in the above-described unit, within the
meaning of Section 9(a) of the Act.
6. By withdrawing recognition from the Union on July
1 L.erno IV ( ra,. Jr. Iernon E ('raw and Daniel (; l,oniard. d b a Cran
& Son. 227 Nl.RB 601 (1976). enfd in relesvnt part 565 F d 1267 (C.A 3,
1977)
281
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
23, 1976, as the exclusive bargaining representative of the
employees in the above-described unit and by thereafter
refusing to resume and withholding such recognition,
CSTA has violated Section 8(a)(5) and (1) of the Act.
7. The unfair labor practices set forth in Conclusions of
Law 3 and 6 affect commerce within the meaning of the
Act.
THt REMEDY
Having found that CSTA has violated the Act in certain
respects, I shall recommend that CSTA be required to
cease and desist from such conduct and like and related
conduct. Affirmatively, I shall recommend that CSTA be
required, on request, to bargain with the Union, and to
embody any understanding reached in a signed agreement,
and that CSTA be required to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 52
The Respondent, Computer Sciences Corporation, Tech-
nicolor Graphics Services, Inc. and Data Processing Asso-
ciates, d/b/a Computer Sciences-Technicolor Associates, a
Joint Venture, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain in good faith with International
Alliance of Theatrical Stage Employees and Moving Pic-
ture Machine Operators of the United States and Canada,
AFL-CIO, Local 780, as the exclusive collective-bargain-
ing representative of its employees in the unit here found
appropriate.
(b) Telling employees that it would never negotiate a
contract with the Union, that their union activity had inter-
fered with or might interfere with their performance rating.
that because of the Union's and Respondent's activities
they would be better off looking for another job, and that
management has issued orders to get information from
them about what happened at a union meeting.
(c) In any like or related manner interfering with, re-
straining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive bargaining representative of
its employees in the aforesaid appropriate unit, and em-
body any understanding reached in a signed agreement.
(b) Post at its Greenbelt, Maryland, facility copies of the
attached notice marked "Appendix." 53 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 5, after being duly signed by Respondent's representa-
tive, shall be posted by it immediately upon receipt thereof,
in conspicuous places, including all places where notices to
employees are customarily posted, and be maintained by it
for 60 consecutive days. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the said Regional Director in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
52 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
, 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to abide by the following:
WE WILL NOT refuse to bargain in good faith with
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United
States and Canada, AFL-CIO, Local 780, as the ex-
clusive representative of the following unit employees:
All laboratory employees engaged in photo pro-
cessing and quality assurance employed by us at
National Aeronautics and Space Administration's
Goddard Space Flight Center located in Greenbelt,
Maryland, excluding all other employees, all office
clerical employees, guards and supervisors as de-
fined in the Act.
WE WILL NOT tell employees that we will never nego-
tiate a contract with the Union, that their union activi-
ty had interfered with or might interfere with their
performance rating, that because of the Union's and
our activities they would be better off looking for an-
other job, and that management had issued orders to
get information from them about what had happened
at a union meeting.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
your rights under the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the appro-
priate unit described above and embody any under-
standing reached in a signed agreement.
Section 7 of the Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or other
mutual aid or protection
To bargain collectively through representatives of
282
COMPUTER SCIENCES-TECHNICOLOR
their own choosing
To refuse to do any or all of these things.
Our employees are free to exercise any or all of these
rights, including membership in Local 780, or any other
union. Our employees are also free to refrain from any or
all of such activities, except to the extent that union mem-
bership may be required by a collective-bargaining agree-
ment as a condition of employment in accordance with the
proviso to Section 8(a)(3) of the Act.
COMPUTER SC IENES CORPORAT ION, TE( HNI( OI.OR
GRAPHICS SERVICES, INC. AN[) DATA PR(KoESSING
ASSOCIATES, d/b/a COMPUTER SCIENC ES- TET HN I-
COI.OR ASSOCIATES, A JOINT VENTURE
283