Raytheon Company v. NLRB

• Decision Date: 07 January 1964
• Docket Number: No. 6126.,6126.
• Citation: 326 F.2d 471
• Parties: RAYTHEON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

326 F.2d 471 (1964)

RAYTHEON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 6126.

United States Court of Appeals First Circuit.

Heard November 4, 1963.

Decided January 7, 1964.

Robert L. Molinar, Lexington, Mass., for petitioner.

James C. Paras, Atty., N.L.R.B., Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Marion L. Griffin, Atty., N.L.R.B., Washington, D. C., were on brief, for respondent.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

This case involving a finding of violations of sections 8(a) (1) and 8(a) (3) of the Labor Management Relations Act as a result of the discharge of two employees has, after an arbitration proceeding and a Board hearing, resulted in a record appendix before us of some 235 printed pages and 90 pages of briefs. We regret that our review requires comparable detail.

The employer, Raytheon Company, had a collective bargaining agreement with Local 1505, IBEW, AFL-CIO, the presently pertinent provisions of which were Article XXIII, providing, inter alia, that there should be "no stoppage of work," and that "the Union shall not question the right of the company to discipline or discharge employees for engaging in, participating in, or encouraging such unauthorized action * * * subject to the grievance procedure hereunder;" and Article XXI, outlining the grievance procedure, which was to culminate in arbitration. In addition the company had certain implementing rules regarding work stoppages, Rules 5 and 13, hereinafter referred to. On September 13, 1961 Raytheon indefinitely suspended, and on September 19 discharged, allegedly for violation of these provisions, the charging parties, Jane Reikard and Mary Fish, two employees assigned to the grid department at its Quincy, Massachusetts plant. Reikard until a year before had been chief steward for the union and both she and Fish had had lengthy employment. For "a long time" the grid department, which contained furnaces, had been displeasingly hot to the employees, who had several times asked that something be done. The matter had not, however, reached the stage of a formal grievance. On September 6 the department employees had unanimously signed an informal petition asking that the situation be remedied. Reikard had drafted the petition, had been the first to sign, and had delivered it to the secretary of Wills, the plant manager. Her testimony that she had been requested by another employee to do the drafting,¹ and that she had obtained "four or five" signatures, but had not been responsible for its circulation, was not contradicted. On September 12 the grid department was particularly hot. No reply had been made to the petition. Employee activity, hereinafter considered, took place on that morning which led to the two suspensions and discharges. Its nature, and whether it was not the cause is the primary issue in the case.

Reikard and Fish after suspension invoked the grievance procedures, and also filed unfair labor charges. The initial grievance procedures were unproductive and they requested arbitration. On October 12 they were notified by the union business manager by telephone that the hearing would take place on October 16. Reikard did not state whether or not she would attend. Fish said that she would call back shortly as to her intentions, but when she did not, both grievants were notified by telegram, apparently on the morning of the 16th, that the hearing was postponed to October 18. Later, on the 16th, Reikard wired the business manager that she was "unable to attend on October 18 because of poor health. Mary Fish still in Maine * * * will advise you when I am able to go to arbitration." The manager wired in reply on the 17th that the hearing was postponed to October 19, and that the parties were expected to appear. The grievants did not attend, request further postponement, or offer any additional explanation for their absence. Experienced union counsel represented their interests and introduced evidence, including their own statements denying improper involvement. The arbitrator's subsequent report concluded, "The evidence here is clear and convincing that the grievants instigated and led a walkout happily thwarted by the Chief Steward. For this gross breach of the Agreement, management may discipline and disciplinary penalty of discharge for the leaders was not improper."

The first question presented to the trial examiner, and thereafter to the Board was the effect to be given to the arbitrator's award. The examiner stated that "the issue of violation of a Federal statute" was not before the arbitrator, and that his other findings were not "dispositive" because the Board's jurisdiction was exclusive. By "dispositive" he meant, as will hereafter appear, entitled to any weight. On this issue the Board (by 3-2 majority) affirmed. As its primary reason it agreed that the arbitration proceeding did not go into the question of the company's motive, viz., whether the assigned cause was a "pretext to mask the true reason." In the light of certain statements made by counsel at the hearing it is debatable whether the arbitrator did go into the company's motive, and we could not call the Board plainly wrong. It does not follow that the Board should not have accepted the arbitrator's findings on the issue concededly litigated. The Board did not reach this question because it found the hearing unfair in that on a request for a general continuance the arbitrator had granted only one day.²

Passing the fact that there had been not one, but two, continuances, we note at the outset that it was not the company, but the grievants' own representative, the union, that insisted there be no further continuance. There is nothing in the record to indicate that the union was processing the arbitration halfheartedly. The only reasonable conclusion as to Fish was that she absented herself voluntarily. Reikard's showing is little better. Seemingly her indefinitely disabling "poor health" developed very suddenly. We might doubt, like the minority Board members, if the indisposition was physical. In any event, we cannot think the Board would have expected us to rule it unfair if a trial examiner, rather than an arbitrator, had refused to grant a further continuance on this record.³ See, e. g., N. L. R. B. v. Somerville Buick, Inc., 1 Cir., 1952, 194 F.2d 56; N. L. R. B. v. Algoma Plywood & Veneer Co., 7 Cir., 1941, 121 F.2d 602. The Board's only cited case of Gateway Transp. Co., 1962, 137 N.L.R.B. 1763, is so different as not to warrant discussion. In view of the importance the Supreme Court lays upon the value of arbitration proceedings in effectuating the national labor policy we have strong doubts whether the Board should have rejected the arbitrator's finding that Reikard and Fish violated Article XXIII and company rules 5 and 13. However, we do not need to reach this question because the Board's decision on the merits must fall for lack of evidence to support it.

There are no findings of the Board, as such, to review, as the Board affirmed the intermediate report without modification. The trial examiner's principal summary findings were the following:

1. "Beyond doubt * * * there was no actual `walkout\' by any employees * * * nor * * * any work stoppage except that which, it is uncontradicted, was implicitly permitted, by Foreman Carbury when he told Chief Steward Shea that he could talk to the employees."

2. There is no "credible evidence in the record" that Reikard and/or Fish "`incited\' employees to engage in what as a fact did not occur."

3. Raytheon did not "offer any credible evidence tending to show that * * * Hare the management official invoking suspension * * * had * * * any reasonable ground to believe that Reikard and Fish had incited conduct which did not occur."

(1) Whether there was a "walk-out" or not may depend upon how the term is to be interpreted. However, merely on the Board's evidence unaugmented by the company's, there was on the morning of September 12 an extended disturbance in the grid department. Although it is disputed who were the moving parties, admittedly a substantial number of the employees gathered in the ladies room, and around each other's benches, openly discussing a walkout to which a number were fully agreeable; there was one fracas, and five attempts were made by employees to persuade the union's chief steward, Shea, to come to the area, not all of which were for pacific purposes.⁴ Shea testified that when finally he did come he obtained the foreman's assent to speak to "a few of his people outside the department." (Ital. supplied, see infra, fn. 11) "By the time we arrived * * * there a fairly large group of people had gathered, by guess, maybe 12 or 15, although people were leaving and coming * * *." As Reikard herself put it, "There were about, like I said, 16 or 17 at the time, although before he Shea was done talking, at sometime or another it seemed that the whole department some 40 women and 15 men had been there, just about the whole department." Although it is true that when Shea told the employees that management had plans under way to alleviate the heat they returned to work, the initial, uninvited,⁵ outpouring of nearly all to see him illuminates the other Board testimony of the nature of the insurgent unrest. Though there was no "walkout" in the sense of packing up and going home, only a highly indulgent finder of fact could conclude that there had been no "Interfering with, obstructing or otherwise hindering production or work performance," (Rule 5) or "* * * wasting time * * * during working hours," (Rule 13) prior to Shea's arrival. The examiner's prefacing his finding with the words "beyond doubt," suggests that he did not recognize that he was even generous.

(2) The second finding, that there...