Raytheon Co.

RAYTHEON CO. Raytheon Company and International Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case 20- RC-9168 February 1, 1971 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, dated March 6, 1970, an election by secret ballot was conducted by the Regional Director for Region 20 on April 17, 1970, in the stipulated unit described below. At the conclusion of the election, the parties were furnished a tally of ballots, which showed that of approximately 750 elegible voters, 686 cast ballots of which 293 were for the Petitioner and 393 against the Petitioner. There were no challenged bal- lots. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations , Series 8, as amended, the Acting Regional Director conducted an investiga- tion and, on June 12, 1970, issued and duly served on the parties his Report on Objections and Notice of Hearing. He found that substantial and material is- sues of fact existed which could best be resolved at a hearing. Accordingly, he ordered a hearing and di- rected that the Hearing Officer designated for the purpose of conducting the hearing prepare and cause to be served upon the parties a report containing reso- lutions of credibility, findings of fact, and recommen- dations. A hearing was held on August 11, 1970, before Hearing Officer Robert E. A. Lee. The Employer and Petitioner appeared and were given full opportunity to examine and cross-examine witnesses, and intro- duce evidence bearing on the issues. On September 24, 1970, the Hearing Officer issued and served on the parties his Report on Objections and Findings and Recommendations, in which he found that the Em- ployer had engaged in certain objectionable conduct, as alleged in Objections 1, 4, 7, and 8, and that the conduct warranted setting aside the election, and he therefore recommended that the election be set aside.' He also found that conduct set forth in the remaining objections did not interfere with the elec- tion and recommended that these objections be over- ruled.2 Thereafter, the Employer filed timely ' The Hearing Officer found that other conduct, alleged as part of Objec- tions I and 4, did not interfere with the election. 2 Petitioner withdrew Objection 3 at the hearing 311 exceptions to the Hearing Officer's report and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Section 9(c)(l) and Sec- tion 2(6) and (7) of the Act. 4. In accordance with the stipulation of the parties, we find that the following employees of the Employer constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees in- cluding plant clerical employees, final test set-up men, test and process equipment technicians- instrumentation, equipment technicians-me- chanical and leadmen, employed by the Employ- er at its semi-conductor facilities at 350 Ellis Street, 327 Moffett Boulevard and 346 Middle- field Road, Mountain View, California, exclud- ing all other technical employees, research, developmental and engineering employees, fore- men, office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. 5. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Hearing Officer's report, the Employer's exceptions and brief, and the entire record in this case, and, for the reasons set forth in said Report, hereby adopts the Hearing Officer's findings and recommendations' that Objec- tions 1, 4, 7, and 8 to be sustained and that the election of April 17, 1970, be set aside 4 Accordingly, we shall set aside the election and direct a second election. 3 In the absence of exceptions, we adopt pro forma the Heanng Officer's other findings, and his recommendation that Objections 2, 5, and 6 be over- ruled. Although our dissenting colleague agrees that Objection 7 should be sustained and the election be set aside, he nonetheless expresses the opinion that Objections 1, 4, and 8 should be overruled. We are of the view, however, that the Heanng Officer was correct in construing the total evidence sur- rounding the remarks of Foreman Fred Roselle and Vice President and General Manager Nevin Kather, which constitute the substance of Objec- tions 4 and 8, as clearly implying that Respondent would close its plant in the event the Union won the election. As to Objection 1, we think Supervisor Clark's threat of loss of benefit was not in the circumstances of this case too remote in time, and that it also constituted a proper ground for setting aside the election 188 NLRB No. 42 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER It is hereby ordered that the election conducted herein on April 17, 1970, be, and it hereby is, set aside. [Direction of second election I omitted from pub- lication.] CHAIRMAN MILLER, concurring in part and dissenting in part: It seems crystal clear to me that Objections 4 and 8 should be overruled. Objection 4 is based upon the Employer's predictions that engineers and supervisors might quit if the Union got in, and that prospective employees might be more attracted to a nonunion shop. How these remarks can be construed as threat- ening or coercive excapes me. It would take a hyper- sensitive employee with neurotic tendencies to read into these expressions of opinion any threat to close the plant. And even such an employee surely would have had his fears quelled by the employer's leaflet of February 27, 1970 (erroneously excluded from evi- dence but marked as Emp. Exh. 7(f)), which specifi- cally stated, inter alia: The Company has no intention of closing or sell- ing its facilities in Mountain View. Objection 8 is equally unfounded for like reasons. An employer's prediction that he will not be able to compete as effectively for business or for new employ- 3 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N.LR.B. v. Wyman-Gordon Company, 394 U.S. 759 According- ly, it is hereby directed that an eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 20, within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Direc- tor shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed ees is a clearly permissible statement of views and opinions. The evidence with respect to Objection 1 reveals a statement by Supervisor Clark which constitutes a threat of loss of the benefits available under the employee's insurance program. While this statement was improper, it occurred 2 1/2 months before the election, was never repeated by either Clark or any other representative of the Employer, and, in my view, thus isolated, would not constitute grounds for setting aside the election. Objection 7 relates to the Employer's solicitation of grievances. When an employer who has not previous- ly had a practice of regularly soliciting employee com- plaints suddenly embarks upon such a course during an election compaign, there is a strong inference that he is, in effect, promising to correct any inequities he discovers as a result of his inquiries, and impliedly urging on his employees that the combined program of inquiry and correction will make collective action unnecessary. His refusal to commit himself as to what corrective action he will take and the statement that he cannot in any event do anything until after the election is over do not cure this evil, and indeed may even heighten the employee's anticipation of good things to come if only the election can remove the unwanted union from the picture. It is true, as we indicated in ITT Telecommunica- tions, 183 NLRB No. 115, the seventh paragraph, that there is nothing illegal per se in employer solicitation of grievances. Neither, obviously, is there anything illegal per se in an employer's inproving the lot of his employees through granting increases in wages or fringe benefits. But when the timing of either is such as to coincide with the origination of employee union activity then, absent affirmative showing of some le- gitimate business reason for the timing, it is not unrea- sonable to draw the inference of improper motivation and improper interference with employee freedom of choice. For this reason, I would concur in setting this elec- tion aside, solely on the basis of Objection 7.