Raytheon Co.

National Labor Relations Board - Board Decisions

Jan 28, 1963

140 N.L.R.B. 883 (N.L.R.B. 1963)

RAYTHEON COMPANY 883
tract, without first having complied with the requirements of
Section 8 (d) of the Act.
AMALGAMATED MEATCU'rTERS AND BT TCHER
WORKMEN OF NORTH AMERICA, LOCAL
#576,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City 6,
Missouri, Telephone No. Baltimore 1-7000, Extension 731, if they have
any question concerning this notice or compliance with its provisions.
Raytheon Company and Jane Reikard . Case No. 1-CA-3580.
January 28, 1963
DECISION AND ORDER
On March 26, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief, and the General Counsel filed
a brief in support of the Intermediate Report.'
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and, briefs, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations to the extent consistent with our Decision herein.2
'The Respondent 's request for oral argument is denied inasmuch as the positions of the
parties are adequately set forth in the record , exceptions , and briefs.
2 We do not agree with the Trial Examiner that interest on backpay should not be
awarded Interest at the rate of 6 percent per annum shall be added to the backpay to
be computed in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716.
For purposes of this decision, Member Rodgers has agreed to be bound by the majority
decision in Isis.
140 NLRB No. 84.
681-492-63-vol. 140-57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner concluded that it would not accord with Board
policy to give effect to the arbitration award which upheld the dis-
charges of Reikard and Fish. We agree with that conclusion.
A review of the transcript of the arbitration hearing reveals that
in his opening argument counsel for Respondent defined the scope of
the arbitrator's jurisdiction by stating:
Therefore if you find on the basis of the evidence that will be
introduced today that the two grievants in question engaged in
conduct violative of Article 23 [no-strike, no-lockout provi; ions],
then it is submitted that you have no choice but to sustain the dis-
charge, that your jurisdiction does not extend any further than to
such a determination. [Emphasis supplied.]
The arbitration transcript further discloses that, consistent with the
foregoing statement, no evidence was introduced before him by union
counsel directed toward establishing that Reikard and Fish were in
fact discharged for protected union or concerted activities rather than
for their asserted conduct in violation of article 23. Furthermore,
Robert Hare, the company official who was responsible for the dis-
charges and whose testimony at the Board hearing is most heavily re-
lied upon by the Trial Examiner in the Intermediate Report herein to
support the Section 8(a) (1) and, (3) findings, was not even called to
testify at the arbitration hearing. Under all of these circumstances
the arbitrator necessarily addressed himself, in making his award,
solely to the contractual issue litigated before him.
In the Monsanto Chemical case 3 the issue of whether or not the dis-
chargee's union or concerted activities had played a part in his dis-
charge was presented to the arbitrator by the parties. He refused to
consider the issue and decided the case on other grounds. The Board
refused to honor the arbitration award because :
It manifestly could not encourage the voluntary settlement of
disputes or effectuate the policies and purposes of the Act to give
binding effect in an unfair labor practice proceeding to an arbitra-
tion award which does not purport to resolve the unfair labor
practice issue which was before the arbitrator and which is the
very issue the Board is called upon to decide in the proceeding
before it.
It is apparent that this case falls within the principles enunciated
in Monsanto. Here, as in Monsanto, the record is clear that the arbi-
trator did not even purport to consider the unfair labor practice issue
which "the Board is called upon to decide . ..." And here also, as
in Monsanto, the assigned cause for discharge was an obvious pretext
to mask the true reason-union or concerted activities-for the dis-
a Monsanto Chemical Company , 130, NLRB 1097
RAYTHEON COMPANY 885
charges. Under these circumstances we do not regard the award of
the arbitrator as controlling.
In their dissent our colleagues state that "the underlying factual issue
in both the arbitration and the unfair labor practice proceedings was
whether the dischargees engaged in a walkout or in conduct inciting a
walkout." We do not agree. The only factual issue before the arbi-
trator was whether or not the dischargees had violated the no-strike
clause of the contract. He received no evidence of Respondent's ani-
mus against them because of their protected union or concerted activi-
ties in other respects nor could he have done so in the frame of ref-
erence in which the arbitration proceeding was conducted. Thus he
could not and did not pass upon either the possibility that the dis-
charges were for union or concerted activities or upon the "pretextual
or spurious" nature of the discharges. But these are the precise issues
presented to the Trial Examiner and the issues which this Board must
decide if it is to extend to the union and concerted activities of em-
ployees the protection accorded by our Act.
Despite the differences in the issues presented at the arbitration and
unfair labor practice hearings, our dissenting colleagues maintain that
the arbitrator did not "... resolve the matter in vacuo. He consid-
ered, all the facts presented to him which would ameliorate the dis-
chargees' alleged misconduct or temper their penalty, and he took into
account any circumstances which might indicate that the discharges
were pretextual or spurious." 4 We do not agree with our colleagues
that such evidence was presented to the arbitrator. As we have already
stated (1) the scope of the arbitration hearing was limited to the ques-
tion of contract violation at the very outset, and union counsel made
no effort to exceed this limit, and (2) Superintendent Hare, who d^s-
charged Reikard and Fish, was not called as a witness at the arbitra-
tion proceeding.
At the unfair labor practice proceedings, however, Hare was asked
if Reikard had been known to give the Company a "hard time" and
replied that he "had certainly heard of her before" he assumed his re-
sponsibilities at Quincy. He also admitted that in his direct dealings
with her he found her guilty of "unreasonableness," describing her as
"aggressive," and furthermore, he conceded that he may have told a
Board agent that she was "a thorn in the Company's side." All these
4 In attempting to support this statement our colleagues state that the strongly worded
petition protesting against working conditions which was drafed by Reikard and next
signed by Fish-just 1 week before they were discharged by Superintendent Hare-was
introduced at the arbitration hearing and was referred to in the arbitration award
However , this petition , which admittedly came to Hare ' s attention , was not introduced
by the Union in an effort to point out a protected concerted activity of the dischargees
which, together with Hare ' s attitude toward Reikard ' s union activities (infra) m•ght
have motivated Hare's discharge of them Rather, it was introduced by the Company to
establish a pattern of incitation on the part of the dischargees and there is nothing in
the arbitration transcript or in the award to indicate that it was even remotely con-
smdered for any other purpose
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressions of animosity toward Reikard were in reference to her per-
formance of her duties as a union steward, a clearly protected activity.
No effort was made at the arbitration proceeding to show that, at the
time Hare discharged Reikard and Fish, he had almost no evidence
of misconduct on their part, nor was any effort made to show the cur-
sory nature of the investigation made by Hare of the incidents leading
up to the discharges. This is evidence which we find clearly establishes
the pretextual nature of the allegation that the two women were dis-
charged for violation of the contract.
Thus, we cannot agree with our dissenting colleagues that the differ-
ence between the two proceedings is to be found in the differences in
credibility resolutions by the arbitrator and the Trial Examiner. To
us the difference lies in the necessity of considering evidence pertaining
to an unfair labor practice later adduced before the Trial Examiner
which had not, and could not, be presented to the arbitrator. Phrased
otherwise, the difference lies in the fact that the two proceedings posed
different issues , and hence different evidentiary considerations.
Our decision in this case in no way conflicts with the Board's "hos-
pitable acceptance (given) to the arbitral process" in International
Harvester Company (Indianapolis Works) 5 as the dissent suggests.
In International Harvester, unlike here, the arbitrator did have before
him essentially the same facts and the same legal issue which later came
before the Board, and the Board majority held that his legal conclu-
sions were not clearly repugnant to the purposes of the Act. On the
other hand, in this case the arbitrator did not, and was advised that he
could not, even consider evidence that protected concerted and union
activities were possible causes for the discharges. Therefore he neces-
sarily ignored the unfair labor practice now in issue before the Board.
We cannot, in giving effect to arbitration agreements, neglect our
function of protecting the rights of employees granted by our Act.
The record also shows that Reikard requested a postponement of the
arbitration proceeding because of her own illness and because Mary
Fish, the other dischargee, was visiting in the State of Maine. They
were granted only a 1-day continuance. In Gateway Transportation
Co.,6 the Board found the failure to grant a request for continuance to
be a factor in deciding that the Board's requirement that arbitration
proceedings be "fair and regular" had not been met? Considering the
reasons given for the requested continuance, we find the 1-day con-
tinuance granted the grievants to be inadequate. To speculate, as our
dissenting colleagues do, that the reasons given were spurious, would
conceivably justify an outright denial of the request. But obviously
6138 NLRB 923 (Members Rodgers and Fanning dissenting).
6137 NLRB 1763.
7 Spielberg Manufacturing Company, 112 NLRB 1080 In Spieiberg the Board held that
it would give effect to arbitration awards if certain conditions were satisfied ; one of
.these conditions is that proceedings be fair and regular.
RAYTHEON COMPANY 887
that was not the view of those most directly concerned, for a continu-
ance was granted. In our view, however, a 1-day continuance was,
under all the circumstances, tantamount to no continuance at all. In
International Harvester, supra, the Board held that the grievant's
presence was not essential to the fairness of the arbitration hearing
because the common issue before the arbitrator and the Board was
"fully and fairly litigated" and "the grievant's interests were vigor-
ously defended." Unlike our dissenting colleagues, we do not view
representation as "vigorous" or the case as "fully and fairly litigated"
where the entire basis for the charge before the Board is left untouched
before the arbitrator. For this reason also we shall not give effect
to the award.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Raytheon Com-
pany, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in and activity on behalf of Inter-
national Brotherhood of Electrical Workers, AFL-CIO, or in any
other labor organization, by discharging, suspending, refusing to re-
instate, or in any other manner discriminating in regard to the
hire or tenure of employment of employees or any term or condition
of employment.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer employees Jane Reikard and Mary Fish immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
and make whole said employees for any loss of pay, plus 6 percent
interest per annum, in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy," as modified herein.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
and the right of reinstatement under the terms of this Order.
(c) Post at its plant in Quincy, Massachusetts, copies of the at-
tached notice marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director for the First Region, shall, after
being duly signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
MEMBERS LEEDO-al and BROWN, dissenting :
Two employees of the Company, Reikard and Fish, were discharged
on September 19, 1961, for the asserted reasons that they incited and
encouraged other employees in conduct violating certain applicable
provisions of the collective-bargaining agreement.' They initiated
written grievances through the proper officers of the Union as required
by the agreement, and they participated in the first five stages of the
grievance machinery through which their grievances were processed
without resolution. The Company and the Union agreed to move
the grievances to arbitration. Both employees were present when,
B In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
"Article XXIII of collective-bargaining agreement reads as follows :
The Union and the Company, respectively, agree that there shall be no stoppage of
work either by strike or lockout, and no intentional and concerted ',lowdown of
work or production, because of any dispute arising during the life of this Agreement,
or under the terms of this Agreement or any proposed modifications or amendments
thereof . . . .
(c) the Union shall not question the right of the Company to discipline or dis-
charge employees for engaging in, participating in, or encouraging such unauthorized
action and shall agree that such discipline and discharge shall not be considered a
violation of this Agreement by the Company , provided that an issue of fact as to
whether or not any particular employee has engaged in, participated in, or en-
couraged any such unauthorized action may be subject to the grievance procedure
hereunder
Company rules 5 and 13, which were involved in the grievance hereinafter discussed,
prohibit:
Interfering with, obstructing or otherwise hindering production or work perform-
ance Leaving work area without permission, wasting time, loitering or sleeping
during working hours.
RAYTHEON COMPANY 889
at the fifth step, agreement was made to invoke arbitration; neither
protested nor made any objection. Consulting the arbitrator's con-
venience, the representatives of the Union and Company fixed Octo-
ber 1S as the date for the arbitration proceedings. Both employees
were notified on October 12 of the scheduled date. On October 16,
Reikard sent the Union a telegram requesting that the arbitration
hearing be postponed until a later date because of her own poor health
and because Fish, the other dischargee, was in Maine. The Union
arranged a 1-day postponement and notified Reikard and Fish by
telegram.
On October 19 the arbitration hearing was held before Saul Wallen,
a well-known and respected arbitrator, with neither Reikard nor Fish
putting in an appearance; nor did they further explain their non-
appearance. The Union called witnesses and presented the employees'
case as it had in all stages of the grievance machinery. The. proceed-
ings reveal that Reikard's and Fish's written statements were accepted
in evidence by the arbitrator. In overruling the Company's hearsay
objection to the admission of these statements, the arbitrator stated:
It's quite obvious that the grievants had notice of this hearing
and they failed to appear, but I think because they failed to ap-
pear it's incumbent upon us to make sure that their cause has
every opportunity to be presented, even at the risk of taking what
you characterize as hearsay evidence.
The arbitrator, in a detailed written decision, found against Reikard
and Fish, and explained in part :
The offense committed by the grievants was of the first magni-
tude. A relationship, whatever its difficulties, that has been free
of wildcat strikes should be preserved from the ill effects of those
who think that something can be gained by this wasteful, illegal
and unproductive way of solving problems. The contract between
the union and the company was designed to insure the union a
mechanism for handling grievances ending in outside review of
management decisions about contractual rights without loss of
time and pay. It was designed to insure the company continuous
production unmarred by stoppages. The employee who instigates
or leads a wildcat strike destroys the very meaning of the Agree-
ment for both parties. To the people in the Union he brings an
irrational, costly and dangerous method of solving problems which
the parties recognized should be solved by peaceful means even
if they take longer to produce results.
Our colleagues refuse to honor the arbitrator's award on two
grounds: (1) the arbitrator did not consider whether Reikard and
Fish were discharged for concerted activity; and (2) the arbitration
proceedings did not meet the Board's requirement that they be "fair
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and regular" in view of the failure to grant a longer continuance than
1 day.10
The underlying factual issue in both the arbitration and the unfair
labor practice proceedings was whether the dischargees engaged in a
walkout or in conduct inciting a walkout. If they had, their action
was a breach of the no-strike provisions of the contract, and their
conduct was not protected under the Act. In finding that the Com-
pany had sufficient cause for terminating these employees, the arbitra-
tor did not resolve the matter in va(wo. He considered all the facts
presented to him which would ameliorate the dischargees' alleged
misconduct or temper their penalty, and he took into account any cir-
cumstances which might indicate that the discharges were pretextual
or spurious. This is shown by the introduction of evidence before
the arbitrator concerning the dischargees' activity with regard to the
circulation of the petition and the arbitrator's reference in his decision
to this petition and to the fact that the first two signatures on the peti-
tion were those of Reikard and Fish. It is clear, then, that the
arbitrator credited certain witnesses while the Trial Examiner ap-
parently credited other witnesses and therefore drew contrary in-
ferences from the testimony.
Moreover, the arbitrator, by virtue of his long arbitral experience
under contracts between the Company and the Union, possessed inti-
mate knowledge of the labor relations setting of this particular shop
and an understanding of the relationship of the parties involved.
The import of such specialized knowledge in this field has been
recognized by the Supreme Court's decision in Warrior cf Gulf."
Referring, inter alia, to Lincoln Hills 12 and the trilogy of Steel-
workers cases 13 decided by the Supreme Court and to Section 203(d)
and related provisions of the Labor-Management Relations Act, the
Board recently acknowledged that "effectuation of the Federal policy"
in this field requires the Board to give "hospitable acceptance to the
arbitral process as `part and parcel of the collective bargaining proc-
ess itself' ...." 14 We participated in that decision and fully sub-
scribe to the principles expressed therein, and we therefore regard
the treatment accorded the arbitral process as somewhat less than
hospitable where, as in the present case, our colleagues withhold their
acceptance because they disagree with the arbitrator's decision on the
merits of what is essentially a factual matter.
Under the circumstances present here, we would honor the arbitra-
tor's award even though the majority of the Board disagrees with
to Here the majority cites Gateway Transportation Co , 137 NLRB 1763
"United Steel Workers of America v Warrior & Gulf Navigation Co, 363 U.S. 574.
la Textile Workers Union of America, AFL-CIO v. Lincoln Mills of Alabama, 353
U S. 448.
13 United Steelworkers of America v. American Manufacturing Company, 363 U S 564;
United Steel Workers of America v Warrior & Gulf Navigation Co , 363 U.S 574; United
Steelworkers of America v. Enterprise Wheel & Car Corp, 363 U.S. 593
11 International Harvester Company (Indianapolis Works), 138 NLRB 923.
RAYTHEON COMPANY 891
his decision. Essentially the issue here springs from the collective-
bargaining agreement and the arbitration process is designed to make
the agreement serve the parties' specialized needs.15 The Board, as
well as the courts, must not frustrate congressional policy by failing
to give full play to the settlement of the differences of parties by the
means chosen by them under their collective-bargaining agreement."
Our colleagues' second finding that the arbitration proceedings did
not meet the Board's standard of being "fair and regular" is even more
surprising on the basis of the actual facts revealed by the record.
Unlike the facts in Gateway Transportation relied upon by the Board
majority, the grievants, here, received complete and vigorous repre-
sentation. Moreover, they fully participated in all five steps of the
grievance machinery. Their request for a continuance was granted.
Neither grievant explained her nonappearance nor did Fish explain
her presence in Maine when she knew the date of the arbitration hear-
ing. Reikard's unproved claim of bad health impresses us as merely
an expression to avoid the hearing, and not a bona fide attempt to
secure postponement until she was able to attend. In this posture
the failure of the grievants to appear in person cannot reflect on the
fairness and regularity of the arbitration proceeding. Especially is
this so when the arbitrator admitted their written statements in
evidence.17
In view of the foregoing, we would dismiss the complaint in its
entirety.
15 United Steel Workers of America v. Warrior & Gulf Navigation Co., supra, at 582
16 United Steelworkers of America v. American Manufacturing Company, supra , at 566.
17 See International Harvester Company (Indianapolis Works), supra
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in, and activity on behalf
of, International Brotherhood of Electrical Workers, AFL-CIO,
or any other labor organization, by discharging, suspending, refus-
ing to reinstate, or in any other manner discriminating in regard
to the hire or tenure of employment of employees, or any term or
condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activi-
ties, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL offer employees Jane Reikard and Mary Fish immedi-
ate and full reinstatement to their former or substantially equiv-
alent positions, and make them whole for any loss of earnings they
may have suffered by reason of the discrimination against them,
plus 6 percent interest per annum.
RAYTHEON COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 24 School Street, Boston, Massachusetts, Telephone No. La-
fayette 3-8100, if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge in the above-entitled case was filed by Jane Reikard on September 18,
1961. A complaint and notice of hearing thereon was issued and served on Novem-
ber 28, 1961, by the General Counsel of the National Labor Relations Board. An
answer was filed by the Respondent Raytheon on December 6, 1961. Pursuant to
notice, a hearing involving allegations of unfair labor practices in violation of Sec-
tion 8 (a)(1) and (3) of the National Labor Relations Act, as amended, was held in
Boston, Massachusetts, on January 10, 11, and 12, 1962, before Trial Examiner
C. W. Whittemore.
General Counsel and the Respondent were represented by counsel at the hearing
and were afforded full opportunity to present evidence pertinent to the issues, to
argue orally, and to file briefs . Both counsel argued orally and have filed briefs.
Disposition of the Respondent 's motion to dismiss the complaint , upon which ruling
was reserved at the hearing , is made by the following findings, conclusions, and
recommendations.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Raytheon Company is a Delaware corporation It maintains an office and place
of business in Quincy , Massachusetts , and various other plants and offices in Massa-
RAYTHEON COMPANY 893
chusetts, New Hampshire, California, Tennessee, and Illinois. At said plants it is
engaged in the manufacture, sale, and distribution of electronic parts and equipment.
During the calendar year 1960 the Respondent made, sold, and distributed, at and
from its various plants, products valued at more than $5 million which were shipped
directly to points outside the State wherein the respective plants are located.
The complant alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
Only the Respondent's Quincy, Massachusetts, plant is here involved.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza-
tion, its Local No. 1505 being under contractual agreement with the Respondent as
representative of employees in its Massachusetts plants.
III. THE UNFAIIR LABOR PRACTICES
A. Setting and major issues
The one major issue is whether or not the Respondent on September 13, 1961,
discriminatorily discharged employees Jane Reikard and Mary Fish to discourage
union membership and activity or other concerted activities for "mutual aid or
protection."
There is no dispute that the two employees were in fact indefinitely suspended on
September 13 or that they were formally notified on September 19 of permanent
discharge.
Although the Respondent's answer specifically denied that the two discharges were
for the reasons alleged by the complaint, it contains no affirmative allegations as to
why the summary action was taken. Nor at the hearing did the Respondent call
any management representative responsible for the discharges to proffer his reasons
therefor 1 The only formal claim, which might be considered as an affirmative
"pleading," is contained in a motion to dismiss, filed 5 days before the hearing opened,
wherein it is alleged that the Respondent discharged the two employees "for instigat-
ing and fomenting a stoppage of work" in violation of the no-strike clause in the
contract between it and Local 1505, IBEW.
The chief ground upon which the Respondent urges its motion to dismiss is the
fact that an arbitrator, on December 15, 1961, issued his decision finding: (1) that
Reikard and Fish had violated certain company rules; and (2) that the "disciplinary
penalty of discharge" was "not improper." It is counsel's claim that the Board
decision in Spielberg Manufacturing Company, 112 NLRB 1080, is governing and
that because of the arbitrator's decision the issues are improperly before the Board.
The point will be fully discussed in a separate section of this report
The specific events immediately preceding the discharges occurred on the morning
of September 12 in the unventilated "grid room" at the Respondent's Quincy plant
where, the evidence is overwhelming, the heat had become increasingly a matter of
the employees' concern.
B. Facts relevant to the discharges
In the main the following facts rests upon uncontradicted testimony:
(1) Both Jane Reikard and Mary Fish had been employed by the Respondent for
more than 10 years at -the time of the discharges Both were quality control inspec-
tors in the "grid" department.
(2) For 8 years Reikard was chief steward for the IBEW local at the Quincy
plant, having been relieved of these duties in August 1960. The following month she
was elected by her departmental fellow employees, by a vote of 59 to 1, as their de-
partmental steward. For reasons unexplained in the record, however, the business
manager of the local declined to abide by the employees' wishes and appointed to this
position the employee who had received the one vote.
(3) No doubt because of her long experience as chief steward for the plant and
in spite of the local's refusal to permit the 60 "grid" department employees to be
represented by a steward of their own choice, Jane Reikard continued frequently to
be consulted by her fellow employees regarding departmental problems.
(4) Management resented Reikard's leadership. Robert Hare, divisional labor
relations manager, who admitted as a witness (called not by the Respondent but by
General Counsel) that it was he who made the decision to terminate the employment
of Reikard and Fish, further testified-
1 Such testimony on this point as does appear In the record was adduced when certain
management officials were called, after the Respondent rested, by General Counsel
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) I certainly had heard of Mrs. Reikard before [taking over his current
position in April 1960];
(b) My own dealings with Mrs. Reikard [as chief steward] I would say at
times there was some unreasonableness in her as far as my own feelings were
concerned;
( c) She was what one might call an aggressive woman.
When asked if he had not told a Board agent that Reikard was "a thorn in the side of
the company," he finally admitted, "I might have said that."
(5) For a considerable period before September 12 the employees of the "grid"
department had been complaining about the excessive heat and lack of ventilation.
Most of the employees in this department are female. A floor plan prepared by the
Company which is in evidence indicates no windows in this area
(6) Early in September, at the request of room steward E. McDonald, Reikard
drafted the following petition:
The employees of the Grid. Dept. (2234) in Quincy strongly urge that the
Personnel Dept., the Safety Engineer, and the Plant Doctor and Plant Manager
look into & remedy the abominable working conditions in this department-
particularly pertaining to the intense heat and lack of proper ventilation. Man-
agement has not yet taken steps to change this department over from warehouse
operation to a production department operation insofar as the ventilation and
air space is concerned . Request that management take an interest in their em-
ployees who are making a profit for them & reciprocate by immediate action
to alleviate the working conditions & allowing us to go home ( if we so desire)
until such steps are taken.
(7) The signatures of Jane Reikard and Mary Fish head those appearing on the
petition, which was signed by all "grid" department employees and quality control
inspectors who were at work on the day of its circulation. During the lunch period
the same day, Reikard delivered the petition to the secretary of Plant Manager Wills.
(8) As a witness the labor relations manager, who assumed full responsibility for
the suspension and discharge of the two employees , admitted that this petition came
to his attention.
(9) It is uncontradicted that management completely ignored this petition from all
its "grid" department employees.
(10) When employees reported for work at 7:30 the morning of September 12, a
number of them remarked and complained that it was already 88°. It is undisputed
that by 8:15 the same morning the thermometer at the machine of employee Ann
D'Amico registered 101 °.
(11) Disturbed by the increasing beat and management's failure even to acknowl-
edge their unanimous petition, during the first 2 hours of work that morning em-
ployees openly discussed what measures could be taken to obtain from management
some recognition of their problem.
(12) It is undisputed that mechanic Bob Millett proposed to one group of em-
ployees that "everybody in the department walk off the floor and if that doesn't
work, then tomorrow half the department stay out, and the next day the other half
stay out." He added : "You have an ex-chief steward in this department , you have
an ex-president, it takes a mechanic to give you a bright idea. That would kind
of make them realize how the working conditions are." 2
(13) It is also undisputed that during the 12-minute coffee break that morning,
beginning at 9:25, employees Mary Fish, Sadie Eaton, Alice Gallant, and Ann
D'Amico, together with "grid" department forelady Jennie May Loud, discussed
what measures would bring the distressing conditions to management's attention.
D'Amico urged that they get in touch with the chief steward, instead of "one at
a time going and complaining ." It was apparently, in Loud's presence, informally
decided to ask the chief steward to come to the department .3
(14) While Reikard and Fish were returning, separately, from the coffee break
they were informed by two employees that employee Nellie Coleman had told
Supervisor Loud that the department employees were planning to "walk out" that
morning. The two approached Coleman and asked her why she had lied. Coleman
replied that she thought it was her duty.
(15) Of the entire department Coleman was the single witness to be called by the
Respondent, whose account of the morning's events involving Reikard and Fish came
2 The finding rests upon the testimony of employee Sadie Eaton , corroborated by that
of Ann D'Amico.
3 The Respondent neither called Supervisor Loud as a witness nor offered any explana-
tion for not doing so
RAYTHEON COMPANY 895
to management's attention before the summary action against them. As a witness,
Coleman admitted having told Loud of the "walk out" on her way back from the
coffee break. She quoted Loud as replying that she did not believe it-that such
rumors had been talked about "right along." Although, as noted above, Loud was
not a witness, that she thus brushed aside Coleman's accusation, is reasonable and
credible, since undisputed testimony establishes that the supervisor had just come
from the cafeteria where she had been in the group of employees who had, in effect,
agreed to send for the chief steward.
(16) Also, shortly after the coffee break, Millett came to D'Amico's machine,
which another mechanic was repairing, and asked him if he was "walking off the floor
at 10:30." D'Amico intervened, demanded to know what he meant and added, "I
haven't heard of anything about that. I know we are going to send for the chief
steward; we all want to talk to him."
(17) Acting apparently upon D'Amico's statement, Millett went to Reikard and
asked for the location of the office of Frank Shea, the chief steward. She told him.
Millett asked if she did not think Shea should be called over regarding the heat situa-
tion. She told him she had already tried unsuccessfully to telephone someone at the
local's office and was about to call Shea. Millett left, returned in a few minutes,
and said he had knocked on Shea's door but received no response. Reikard thereupon
dialed Shea's office on the plant telephone. He answered She asked him to "please
come over right away," explaining that "all the people are disturbed about the
heat." 4
(18) Within a few minutes employee Sadie Eaton came to Reikard and asked if she
did not think "we should get the steward, get the union in here?" Reikard replied that
she had already called Shea, but he had not arrived.
(19) Eaton decided to, and did, go directly to Shea's office, and shortly returned
to the department with him.
(20) Shea's testimony is undisputed that he came to the department, went di-
rectly to the department foreman's office, and asked for and received from Fore-
man Carbury permission to talk to "several" of the department employees.
(21) Having received management permission, Shea accompanied some 12 or 15
employees down the aisle to an open area adjoining the department
(22) During the 5 or 10 minutes Shea talked with the employees he answered their
questions as to plans he understood management was making to alleviate the intoler-
able heat and ventilation conditions. The record reveals no credible evidence to re-
fute his statements: (a) that at no time were there more than 15 or 20 of the 60
department employees in the group around him; and (b) that no one urged a "walk
out " He explained to them that it was his understanding that one "work order"
to remedy conditions had been turned down by management because of "far
too much money," and that a second was awaiting approval of a vice president.
(23) Shortly after the girls had gathered around Shea, General Foreman Cram
came into the department, apparently for the first time that morning. He walked up
to the gathering, but according to his own testimony heard nothing, made no inquiry,
and neither asked nor ordered any employee back to work. Although in charge of
the department and presumably acquainted with employees working for him, as a
witness he identified only Reikard as participating in the group. Also, according
to his testimony, without making any effort to ascertain what had occasioned the
group conference he hastened to the foreman's office where Plant Manager Wills,
Plant Production Manager Iseman, and Foreman Carbury were in discussion. His
further uncorroborated testimony is to the effect that he told Wills, in Carbury's
presence, "Tt looks like a walkout" and added, "The supervisor said this is the walk-
out they were talking about " He also claimed that Carbury said nothing when he
made this announcement and "apparently he was not aware of this." 5
' Shea confirmed this call
5 Cram identified Jennie Loud as the "supervisor" who had told him, upon his coming
into the department, that it was a "walkout " His testimony 1s incredible on its face.
As noted, Loud was not a witness at the hearing. It has been found, above, that witness
Coleman testified that shortly before this Loud had told her she did not believe her accusa-
tion of an impending "walk out," and it is undisputed that Loud had been present when
it was decided to send for Shea. Assuming, however, that Loud did tell Cram that a
"walkout" was occurring, then we confront the incomprehensible spectacle of a general
foreman approaching a group of employees who lie believed had without permission left
their jobs, yet neither inquiring as to the circumstances nor making any effort to order
them back to work. Moreover, it is wholly unbelievable that in the office, Foreman
Carbury, who had just given Shea permission to talk to the employees, should have sat
mute while Cram announced a general walkout
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(24) As the group of employees broke up and returned to work, it is undisputed
that Mary Fish suggested to Shea that the two of them go to Wills and ask to have
a barrier of boxes, piled up alongside the area, moved as a temporary measure to
provide some ventilation. The two went to Wills, made the request, it was granted,
and workmen immediately moved the boxes.
(25) Testimony is in agreement that with the barrier of boxes removed, ventila-
tion in the department considerably eased the heat situation-a noncost partial
remedy which an employer more concerned with personnel morale than with contract
clauses might well have effected as soon as the unanimous petition was received
more than a week earlier.
(26) About 10 o'clock the next morning, September 13, Reikard and Fish were
summoned to the personnel office. Chief Steward Shea accompanied them. Fish
was instructed to remain outside. Hare and various other plant officials, including
Foreman Carbury, were present, none of whom were called as witnesses by the
Respondent.
(27) The testimony of Shea and Reikard as to the interview is undisputed. In
substance, either Hare or his superior, Dionne, declared that they believed there
had been a work stoppage, or walkout, the day before which was regarded in a
"very serious light" and that an investigation was being made. Reikard asked what
work stoppage they were referring to, and if they meant "the situation where Frank
Shea came into the department and took us outside?" Hare looked bewildered,
according to Reikard, and asked Shea if this was true. Shea replied that it was,
and that he had been given permission to talk to some of the employees and had
done so. There is no evidence that Carbury, who was present, contradicted Shea.
After some discussion, Reikard and Fish-the latter not having been questioned at
all-were permitted to return to work.
(28) Later the same day Reikard and Fish were again called to the same office
and both were summarily suspended "indefinitely." Hare told them they had been
"investigating" the incident the day before. Fish asked why she was being suspended
without having been asked any questions, and Hare told her she could take the
matter up through the grievance procedure. Reikard asked what they were accused
of. He replied that they had violated rules Nos. 5 and 13, and that he "felt" the two
employees had "incited a walkout."
(29) Company rules Nos. 5 and 13, respectively, call for disciplinary action when
employees violate the prohibition against "interfering with, obstructing, or otherwise
hindering production or work performance," and "leaving work area without permis-
sion, wasting time, loitering or sleeping during working hours."
(30) On September 19 Hare sent the following wire to both employees:
A thorough investigation of circumstances leading to your suspension on
Sept. 13th 1961 [hlas disclosed that you violated Company Rules #5 (inter-
fering with obstructing or otherwise hindering production work performance)
(and the obligation imposed upon you by article #23 of the company union
contract.) You are accordingly hereby discharged from the employ of the
company.
C. The arbitration issue
On September 18, the day before the two employees were informed that their
"indefinite" suspension was permanent, they filed grievances with the Union. The
same day, as noted in the "Statement of the Case" above, Reikard filed with the
Board's Regional Office a charge alleging violation of Section 8(a)(1) and (3) of
the Act on the part of the Respondent for its action in suspending both herself and
Fish. The Respondent concedes, in its answer, the receipt by it of that charge.
At the hearing, General Counsel and the Respondent stipulated that the Union,
acting as their representative and without objection on their part, moved for arbitra-
tion after the fifth level of grievance proceedings had been completed. An arbitration
hearing was set down for October 18. On October 16 Reikard wired the Union
as follows:
Please cancel our arbitration case on Wednesday October 18 unable to attend
because of poor health. Mary still in Maine. If you proceed it is against my
wishes and I will not be held responsible for same. Outcome will not be
legal and binding for me as I shall not be able to defend myself which is my
constitutional right. Will advise you when I am able to go to arbitration
The hearing was postponed until October 19, and the Union sent the following wire
to her:
We expect you to be present with any witness you wish to be heard. The
case will have to be heard as stated date and time.
RAYTHEON COMPANY 897
The arbitration hearing was held before a single arbitrator on October 19, neither
of the grievants being present although counsel for the Union participated in the
hearing. On December 15 the arbitrator issued his decision, finding that the em-
ployees had violated the rules cited by the company, that they had "instigated and
led a walkout happily thwarted by the Chief Steward," and that "For this gross
breach of the Agreement, management may discipline and the disciplinary penalty
of discharge for the leaders was not improper."
In his brief counsel for the Respondent urges that court and Board decisions
require dismissal of the complaint because of the arbitration award. In support
of his position counsel cites, among other cases: United Steel Workers of America
V. Warriors & Gulf Navigation Co., 363 U.S. 574; United Steelworkers of America
v. American Manufacturing Company, 363 U.S. 564; United Steelworkers of America
v. Enterprise Wheel & Car Corp., 363 U.S. 593; Spielberg Manufacturing Company,
112 NLRB 1080; and Max B. Ascherwitz, et al., Co-Partners doing business as
I. Ascherwitz and Sons, 130 NLRB 1078.
In the opinion of the Trial Examiner none of the cases cited by the Respondent
is governing here. He reads none of them as vacating the succinct decision of the
Ninth Circuit Court of Appeals in a case heard by him many years ago, in which
the court said: 6
Clearly, agreements between private parties cannot restrict the jurisdiction
of the Board . we believe the Board may exercise jurisdiction in any
case of an unfair labor practice when in its discretion its interference is neces-
sary to protect the public rights defined in the Act.
The Trial Examiner does not view this case as a "labor dispute" between the two
employees, the Union and the Employer, as a contest between parties to a contract
with the public interest insulated by its terms, or a question as to which of two
forums is more appropriate, for any reason, wherein it should be heard and decided.
This is an unfair labor practice case. The Board's jurisdiction is exclusive.
Section 10(a) of the National Labor Relations Act states specifically:
The Board is empowered . . . to prevent any person from engaging in any
unfair labor practice ... affecting commerce. This power shall not be affected
by any other means of adjustment or prevention that has been or may be
established by agreement, law, or otherwise ... .
When the General Counsel of the Board served upon the Respondent the charge
filed on September 18 by employee Reikard, the Respondent was properly notified
that both employees were invoking their right, accorded by Federal law, to claim
violation of that law. At no time thereafter was the Respondent notified of with-
drawal of the charge. It was aware of the investigation being conducted by the
Regional Office. On November 28 with his issuance of the complaint General
Counsel specifically put the Respondent on notice that it must appear before an
agent of the Board and answer to allegations of violation of the same Federal
statute. At no time since September 18, 1961, so far as the record shows, has the
Board, its General Counsel, or any agent of the one Federal agency accorded
exclusive jurisdiction expressly or by implication informed the Respondent, the Union,
or the employees involved, that it was yielding or would yield to any arbitrator or
other party the duty imposed upon it by Congress.
The Trial Examiner does not presume to comment upon the arbitrator's decision,
or the evidence upon which apparently it was based, except to note that the issue
of violation of a Federal statute was not before him, and to venture the belief that
his findings are no more binding upon the Board than those of the Trial Examiner.
In short, the Trial Examiner is unable to find merit in the Respondent's contention
that the arbitration award is dispositive of the issues before him.
D. Conclusions
In quick summary, the findings of fact in section B, above, establish beyond doubt
that on September 12 there was no actual "walkout" by any employees. Nor was
there any work stoppage except that which, it is uncontradicted, was implicitly per-
mitted by Foreman Carbury when he told Chief Steward Shea that he could talk to
the employees.
Nor is there any credible evidence in the record that Reikard and Fish, either or
both, "incited" employees to engage in what as a fact did not occur. Nor did the
Respondent, at the hearing, offer any credible evidence tending to show that on
6 N L R B. v. Walt Disney Productions, 146 F. 2d 44 (C.A. 9), cert. denied 324 U.S. 877
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 13, the date of the discriplinary action , the management official invoking
that discipline had before him any reasonable ground to believe that Reikard and
Fish had incited conduct which did not occur . As noted Fish was not even questioned
by management before her suspension . An "investigation" that ignores the accused
is repugnant both to the fundamentals of law and to the ethical practices of a
reasonable employer.
The I employee out of 60 in the department to be called as a witness by the
Respondent and whose version of the morning 's happenings may have been related
to management before the suspension of Reikard and Fish was Coleman, whose
demeanor as a witness and whose recorded testimony displayed bias and unreliability.
And as a witness called by General Counsel , Hare admitted that he had learned of the
"violent" argument between Coleman and Reikard on the morning of September 12,
and was aware of it at the time he "evaluated " her statement before the suspension.?
Although Hare claimed that he also had before him the account of employee
Millett before suspending the two employees , and although other testimony establishes
that this employee was available, counsel for the Respondent did not call him as a
witness. Uncontradicted testimony that Millett had , on September 12, urged that
employees "walk off the floor ," plus the admission by Industrial Relations Manager
Hancock that management had told Millett that it would "guarantee that his job
would be safe . . . in relation to . his testifying against a fellow union member"
establish a reasonable basis for the inference that counsel for the Respondent failed
to call Millett because of his doubtful credibility.
In conclusion , the Trial Examiner is convinced and finds that the minor incident of
September 12, permitted by Foreman Carbury and not interfered with by General
Foreman Cram , was seized upon by management as a pretext for ridding itself of
the two leaders of the move which resulted in the unanimous petition of grid depart-
ment employees , and particularly of Jane Reikard, whom Hare admitted he might
have characterized to a Board agent as "a thorn in the side of the company ," while
acting as chief steward for the Union . The preparation and circulation of the
petition was plainly protected activities , and Reikard 's long service as chief steward
constituted union activities The termination of their employment for engaging in
concerted and union activities was discriminatory , and violative of Section 8(a)(1)
and (3) of the Act.
Even if it were to be found that the two employees were discharged because they,
among others , participated in the discussion with Chief Steward Shea on the morning
of September 12, which management had permitted , the unlawful nature of the dis-
missals would not be altered.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , the Trial
Examiner will recommend that it cease and desist therefrom and take affirmative action
to effectuate the policies of the Act.
As the Respondent 's unlawful activities indicate a purpose to defeat the free self-
organizational rights of its employees , the Trial Examiner is convinced that they are
potentially related to other unfair labor practices proscribed by the Act and that the
dancer of their commission in the future is to be anticipated from the Respondent's
conduct in the past. The preventive purposes of the Act will be thwarted unless
the remedy is coextensive with the threat. Accordinely , in order to make effective
the interdependent guarantees of Section 7 and thus effectuate the policies of the Act,
9 The Trial Examiner considers it unnecessary here to appraise In detail the testimony
of employees Wuestefeld , Hayes, White. and Antonelli , called by the Respondent to teetifv
concerning the events of September 12. It Is clear that their accounts at the heanna
were contrary to statements they had made to management prior to the dismissal of
Reikard and Fish, and that management did not obtain from them their altered versions
until after the action had been taken. Even if their belated implication of the two em-
ployees were to be given face value , management ' s awareness of their new stories did not
come about until long after the terminations and obviously could not have motivated the
action.
MARSH SUPERMARKETS, INC. 899
it will be recommended that the Respondent cease and desist from in any manner
infringing upon the rights of the employees guaranteed in the Act.
It will be recommended that the Respondent offer Reikard and Fish immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make them whole
for any loss of pay they may have suffered by reason of the discrimination against
them by payment to each of a sum of money equal to that which she would have
earned as wages, absent the discrimination, from September 13, 1961, to the date
of offer of full reinstatement, less her net earnings during said period, and in a manner
consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289.
In his brief General Counsel urges that interest be added to the backpay award.
His argument is persuasive and well-documented. The Trial Examiner is in agree-
ment with it and urges that the Board give it full consideration in the event this
proceeding comes before it. In his opinion, however, it would be improper for him
to add to the usual recommended order a provision contrary to or inconsistent with
established Board policy.8 And so far as he has ascertained, the Board has not altered
its position on the interest issue since 1951, when it reversed on precisely the same
issue Trial Examiner Reeves Hilton in Earl I. Sifers, an individual doing business as
Sifers Candy Company, 92 NLRB 1220.
Upon the basis of the foregoing findings and conclusions of fact, and upon the
entire record in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By discriminating against employees Reikard and Fish to discourage membership
in and activity on behalf of the above-named labor organization and by depriving
them of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
8 Despite the Supreme Court's ultimate reversal of the Board on the merits of the case,
the Trial Examiner does not consider that he is absolved of the duty to follow Board
policy, of which he was specifically and pointedly reminded In Insurance Agents' Inter-
national Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB
768.
Marsh Supermarkets , Inc. and Retail Clerks International Asso-
ciation, Local Union No. 1441, AFL-CIO
Marsh Supermarkets, Inc. and Charles D. Dowling, Petitioner
and Local No . 1441, Retail Clerks International Association,
AFL-CIO
Marsh Supermarkets, Inc. and Local No. 1441, Retail Clerks
International Association , AFL-CIO. Cases Nos. 25-CA-1407,
25-RD-120, and 25-RC-1865. January 28, 1963
DECISION AND ORDER
On February 16, 1962, Trial Examiner Horace A. Ruckel issued an
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
140 NLRB No. 83.
681-492-63-vol. 140-88