Raytheon Co.

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