Boeing Airplane Co.

National Labor Relations Board - Board Decisions

Nov 22, 1948

80 N.L.R.B. 447 (N.L.R.B. 1948)

In the Matter of BOEING AIRPLANE COMPANY, A CORPORATION,
SUCCESSOR TO BOEING AIRCRAFT COMPANY , A CORPORATION , AND ITS
AGENT WILLIAM M. ALLEN and AERONAUTICAL INDUSTRIAL
DISTRICT LODGE No. 751, INTERNATIONAL ASSOCIATION OF MACHINISTS
(IND.)
Case No. 19-CA-95.-Decided November 22, 194.8.
DECISION
AND
ORDER
On July 20, 1948, Trial Examiner William E . Spencer issued his
Intermediate Report in the above -entitled proceeding , finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and 8 ( a) (5) of
the National Labor Relations Act, as amended by the Labor Manage-
ment Relations Act, 1947, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto . Thereafter the
Respondent filed exceptions to the Intermediate Report and a sup-
porting brief. The Union filed a brief in support of the Intermediate
Report.
On October 19, 1948, the Board heard oral argument at Washing-
ton, D. C., in which the General Counsel , the Respondent , and the
Union participated ? Thereafter the Respondent and the Union filed
supplemental briefs.
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
Intermediate Report , the exceptions and briefs , the contentions ad-
vanced at the oral argument , and the entire record in the case, and
hereby adopts the findings , conclusions , and recommendations of the
Trial Examiner insofar as they are consistent with this Decision and
Order.
3 Board Member Houston , who was not present at the oral argument , has read the tran-
script of that proceeding.
80 N. L. R. B., No. 88.
447
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The effect of Section8 (d)
The Trial Examiner found, and we agree, that on and after April
25,1948, the Respondent refused to bargain with the Union in violation
of Section 8 (a) (5) and Section 8 (a) (1) of the amended Act. With
respect to the contention of the Respondent 2 that at the time of its
refusal to bargain the strikers had lost their status as "employees"
because of the failure of the Union to comply with Section 8 (d),
the Trial Examiner found, inter alia, that the Union had substantially
complied with the requirements of Section 8 (d)3 of the amended
Act before it resorted to strike action on April 22, 1948. However,
we do not pass upon the question of whether the Union had met the
requirements of Section 8 (d), inasmuch as we are of the opinion that
under the particular circumstances involved herein compliance with
Section 8 (d) was not required.
We find, as the record shows,4 that on March 16, 1946, the Union
and the Respondent entered into a collective bargaining agreement
which provided that the contract "shall be and remain in full force
and effect from the 16th day of March 1946 to the 16th day of March
2 The Resnondent's position may be summarized as follows : (1) Section 8 (a) (5) makes
it an unfair labor practice for an employer "to refuse to bargain collectively with the repre-
sentatives of his employees, subject to the provisions of Section 9 (a)." (2) Under Section
9 (a) a labor organization can only he representative of "employees." (3) The Union
failed to comply with the requirements of Section 8 (d), inter alia, by engaging in a strike
within the 60-day waiting period specified in 8 (d) (4), as a result of which the employees
lost their status as "employees" for the purposes of Sections 8, 9, and 10 of the amended
Act. (4) Since the Union no longer represented its "employees," it no longer possessed
representative status, and the Respondent was free to refuse to bargain with it. (5) Such
refusal does not violate Section 8 (a) (5).
8 The relevant provisions of Section 8 (d) of the Act, as amended, provide that :
Where there is in effect a collective bargaining contract covering employees in an industry
affecting commerce, the duty to bargain collectively shall also mean no party to such con-
tract shall terminate or modify such contract, unless the party desiring such termination
or modification-
(1) serves a written notice upon the other party to the contract of the proposed termina-
tion or modification sixty days prior to the expiration date thereof, or in the event such
contract contains no expiration date, sixty days prior to the time it is proposed to make
such termination or modifications ;
(2) offers to meet and confer with the other party for the purpose of negotiating a new
contract or a contract containing the proposed modifications ;
(3) notifies the Federal Mediation and Conciliation Service within thirty days after such
notice of the existence of a dispute. and simultaneously therewith notifies any State or
Territorial agency established to mediate and conciliate disputes within the State or Terri-
tory where the dispute occurred, provided no agreement has been reached by that time;
and
(4) continues in full force and effect, without resorting to strike or lockout, all the terms
and conditions of the existing contract for a period of sixty days after such notice is given
or until the expiration date of such contract, whichever occurs later
r â–º s r * r s
Any employee who engages in a strike within the sixty-day period specified in this sub-
section shall lose his status as an employee of the employer engaged in the particular labor
dispute, for the purposes of Sections 8, 9, and 10 of this Act, as amended, but such loss of
status for such employee shall terminate if and when he is reemployed by such employer.
The flnd;ngs herein are based upon an all-party stipulation received in evidence.
BOEING AIRPLANE COMPANY 449
1947 and thereafter until a new agreement has been reached by the
parties either through negotiation or arbitration." By letter dated
October 24, 1946, 10 months before the effective date of Section 8 (d),
the Respondent notified the Union that it wished to change certain
provisions in the existing agreement and submitted a draft of a
proposed revision of the agreement. The Union, in its written reply
of December 6, 1946, suggested that negotiations be deferred until
30 days prior to the expiration of the contract so that the parties
would be in a position to consider all items involved in a new contract.
In its letter of December 11, 19461 the Respondent agreed that the
parties negotiate the terms of a new contract, and added : "However,
due to the fact that our present agreement expires on March 16, 1947,
and further, that our experience had shown that it takes a consider-
able time to work out these agreements , the Company suggests that
negotiations start not later than the middle of January." On Decem-
ber 16, 1946, the Union wrote to the Respondent suggesting that the
parties meet " as soon as possible after the middle of January 1947"
to negotiate a new contract.
Actual negotiations on the terms of a new contract began on Jan-
uary 29, 1947, and, as fully set forth in the Intermediate Report,,' con-
tinued beyond March 16, 1947, with little interruption until April 21,
1948, when the Respondent rejected the Union's final proposal for a
new contracts On and after August 22, 1947, the effective date of the
amended act, the Union invoked and the Respondent complied 7 with
6 The Intermediate Report contains certain misstatements of fact and inadvertences.
We note the following corrections : ( 1) The complaint alleges that the Union filed a peti-
tion for certification on May 31, 1937, and was designated as the collective bargaining
representative of the Respondent 's employees in an appropriate unit on June 17, 1937 The
Trial Examiner erroneously referred to the complaint as having alleged May 31, 1947, as
the date of designation of the bargaining representative . ( 2) The Trial Examiner inad-
vertently referred to the conciliation efforts of the U S. Conciliation Service in the strike
period involved herein. Actually , by that time that agency had been replaced by the Fed-
eral Mediation and Conciliation Service.
6 The Respondent excepts to the Trial Examiner's denial of its motion to strike those
paragraphs in the complaint pertaining to negotiations between the parties before August
22, 1947, and to the Trial Examiner ' s admission in evidence of those paragraphs of the
stipulation relative to negotiations between the parties prior to the same date. An iden-
tical motion as to the paragraphs in the stipulation pertaining to negotiations after August
22, 1947, and before April 1948, was made by the Respondent and rejected by the Trial
Examiner. The Respondent ' s motion and exceptions proceed on the theory that only
certain of the collective bargaining negotiations subsequent to August 22, are relevant
herein , I e , the events of April 1948 . However, the issue raised by this proceeding
necessarily involve, for their proper resoluton , an examnation of the entire course of
negotiation and correspondence between the parties relative to a new contract commencing
in October 1946. Accordingly, the Trial Examiner 's rulings are hereby affirmed.
T The record is silent as to the action taken by the Respondent in connection with the
Union 's requests for performance under the terms of various clauses of the collective bar-
gaining contract . The Trial Examiner presumed compliance on the part of the Respondent.
In the absence of exception to this finding by and of the parties, we find that the Respond-
ent complied with these requests.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the preferential hiring," seniority,9 grievance, and safety committee
provisions of the 1946 agreement. In a letter to its members, dated
August 26, 1947, the Union stated : "The Council analyzed the situation
and decided that it would not be advisable to jeopardize the Labor
Relations Agreement now existing between the parties; that the Union
should maintain its present agreement until a new one has been nego-
tiated that can be acceptable to the membership." 10
In view of all the foregoing circumstances, we find that prior to
August 22, 1947, the Respondent and the Union had opened the 1946
collective bargaining contract for negotiations leading to the execu-
tion of a new agreement. We further find that on August 22, 1947,
there was in effect between the Respondent and the Union an interim
collective bargaining contract, i. e., the opened 1946 agreement extended
for the period of negotiations on the terms of a new contract. We find
no merit in the Union's contention that there was no contract in exist-
ence on August 22, 1947, and that the parties were merely utilizing the
terms of the 1946 agreement as a modus operandi. To adopt this
view would be to ignore the language of the 1946 contract's duration
clause, and the clear evidence that the parties continued to operate
under the terms of this agreement after it had been opened for negotia-
tions. There was an interim agreement in effect on August 22, 1947.
However, the issue presented herein is whether the procedural require-
ments of Section 8 (d) are applicable to an interim agreement in exist-
ence on August 22, 1947, but based upon a contract which on that date
had already been opened for negotiations leading to termination. We
believe not.
In our view, where the parties on August 22, 1947, were already
engaged in the very contract negotiations that Section 8 (d) was
designed to encourage, no useful purpose would be served by requiring
8 Each of the 1,943 employment reference applications filed by the Union with the
Respondent from January 1, 1948, to April 20, 1948, stated: "In accordance with Article
III, Section d, paragraph 1, of the current Labor Relations Agreement, the Aeronautical
Industrial District Lodge No 751 requests that the Boeing Airplane Company give prefer-
ence of employment to the person whose name is contained on this application "
9 In invoking the seniority and safety committee clauses, the Union referred to "our pres-
ent Labor Relations Agreement " The final letter of the Union to the Respondent, dated
April 20, 1948, stated "the union proposes that Article III, Seniority, shall contain the
same language that is now existing in the contract between the parties.
10 In the same letter, the parent body of the Union, also party to the 1946 contract, was
reported as having stated on August 18, 1947, that "neither party could unilaterally break
the contract before its expiration date." The Union objected to the admission in evi-
dence of the letter to the membership on the ground that the statements contained therein
were not communicated to the Respondent. The Trial Examiner overruled the objection
and received the letter in evidence. However, the Trial Examiner did not include these
statements in his findings to which omission the Respondent excepts. We base our finding
of a continued contract on the invocation of the clauses of the contract by the Union and
the Respondent's compliance therewith. We do not regard these statements by the Union
standing alone as sufficient evidence of the existence of a contract inasmuch as they were
not communicated by one party to the other. They may, however, and we so find, be
considered as evidence that during the period covered by these statements, the Union
believed that a contractual relationship existed between the parties.
BOEING AIRPLANE COMPANY 451
compliance with the notice and waiting provisions of that section of
the Act. However, we need not rely upon such policy considerations.
It is dispositive of the issue presented that to apply Section 8 (d) in
the circumstances of this case would give that provision a retroactive
application contrary to the statutory scheme of the amended Act which,
like the original Act, is prospective in effect 11 As part of the duty
to bargain collectively, Section 8 (d) of the amended Act requires
adherence to the procedure indicated therein by the party desiring
contract termination or modification on or after August 22, 1947.12
Stated otherwise, contracts opened on or after August 22, 1947, for
negotiations leading to termination or modification, fall within the
purview of Section 8 (d). To interpret Section 8 (d) as affecting a
collective bargaining contract opened, as in this case, before the effec-
tive date of the amended Act for negotiations leading to termination
or modification, would be to give to the amended Act a retroactive
application which clearly was not intended by Congress." Inasmuch
as the 1946 contract was opened on January 29, 1947, for negotiations
leading to termination, and on August 22, 1947 the contract remained
an interim agreement while the Respondent and the Union endeavored
to reach a new agreement, we find that the Union was not obligated to
comply with the requirements of Section 8 (d) .14
2. The no-strike clause
The Respondent argues that without regard to the issue of compli-
ance with Section 8 (d), by engaging in strike action on April 22,1948,
11 Cf, Jeffrey-De Witt Insulator Company v. N. L R. B., 91 F. (2d) 134 (C. C. A. 4),
cert. den. 302 U. S. 731 ; Matter of Marshall and Bruce Company , 75 N. L R B. 90 ; Matter
of Briggs Manufacturing Company, 75 N. L. R. B. 569; Matter of Union Products Company,
75 N. L. R B 591, citing U. S. v. Saint Louis, San Francisco d Texas Railway Company, 270
U. S 1, where Mr. Justice Brandeis , speaking for the Court , stated : "That a statute shall
not be given a retroactive effect unless such construction is required by explicit language
or by necessary implication is a rule of general application .. . Section 102 of the
amended Act states : "No provision of this title shall be deemed to make an unfair labor
practice any act which was performed prior to the date of enactment of this Act which did
11not constitute an unfair labor practice prior thereto. .. .
12 Section 104 of the amended Act provides : "The amendments made by this title shall
take effect sixty days after the date of the enactment of this Act... .
1e Legislative intent consistent with the view that the relevant provisions of Section 8
(d) operate prospectively is indicated in Senator Taft's discussion of Section 8 (d) on the
floor of the Senate. Senator Taft stated : "We have provided in the revision of the collec-
tive bargaining procedure , in connection with the mediation process, that before the end
of the contract , whether it contains such a provision or not, either party who wishes to
open the contract may give 60 days' notice in order to afford time for free collective bar-
gaining, and time for the intervention of the Mediation Service." [Italics supplied.]
(Cong. Rec , April 23, 1947 p. 3955.)
14 The Respondent urges that the Board accord "great weight" to the opinion and judg-
ment of the Court in Graham v. Boeing Airplane Company, 22 L. R. R. M . 2243, denying a
petition for injunctive relief under Section 10 ( j) of the amended Act on the ground that the
Union violated Section 8 ( d). With great respect we adopt the Trial Examiner ' s ruling
herein that "The decision of the court , . . . as that court duly recognizes in its opinion,
has no binding effect whatever on the Board in a proceeding on the complaint in this case."
817319-49-vol. 80-30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union breached the no-strike clause in the contract 15 with the result
that the Respondent was no longer obligated to bargain. The Trial
Examiner found that the strike terminated rather than breached the
collective bargaining contract. While we agree with the Trial Exam-
iner's ultimate conclusion, we do so on somewhat different grounds.
In the previous section of this Decision, the issue was whether on
August 22, 1947, there was a contract "in effect" within the meaning
of Section 8 (d) of the Act. Here we are concerned with whether at
the time the strike occurred on April 22, 1948, the parties were bound
by the terms of the 1946 agreement including the no-strike clause.
The Respondent contends that the 1946 contract, including the
no-strike clause, was binding upon the parties "until a new agreement
was reached." This conclusion, the Respondent asserts, follows from
the language of the duratior clause in the agreement under which
the contract continues in effect to the 16th day of March 1947 and
thereafter until a new agreement has been reached by the parties either
through negotiation or arbitration." While we are of the opinion
that the contract became one of indefinite duration on March
16, 1947,18 we cannot accept the conclusion which is implicit in the
Respondent's contention, i. e., that the contract called for perpetual
adherence to its terms in the absence of agreement on the provisions of
a new contract. So construed, either party could compel negotia-
tions without end, if for reasons best known to itself, it found per-
petuation of the existing contract to its advantage. It is an estab-
lished principle of law that contracts such as the agreement in issue,
which by their terms call for perpetual performance, will be inter-
preted "as intending performance in a reasonable time." 17 We regard
this principle as applicable in the instant case. In so finding, we do
not in any way impair the validity of no-strike provisions in col-
15 The 1946 contract provided : "During the life of this agreement no strikes shall be
caused or sanctioned by the Union , and no lock-outs shall be made by the Company."
16 Where the contracting parties undertake to continue the old contract in effect pending
the completion of a new one , we have held that "such action rendered the old contract, at
best, one of indefinite duration , and therefore not a bar to a present determination of
representatives " See Matter of Stewartstown Furniture Company, 75 N. L. R. B. 344.
17 In discussing contracts calling for perpetual performance , Williston states :
It is not often that a promise will properly be interpreted as calling for perpetual
performance . Only in such negative promises as to forbear suit or not to carry on a
business or occupation is so broad an interpretation likely to be permissible. More
commonly , the true interpretation will mean some period short of infinity ; and partly
in order to carry out supposed actual intention of the parties and partly , doubtless, in
order to prevent an offer or an agreement from being ineffectual because too indefinite,
courts will , where the contract contemplates a single act or exchange of acts unless
the circumstances show a contrary intention , interpret a promise which does not in
terms state the time of performance as intending performance in a reasonable time.
1 Williston , Contracts ( Revised Edition ), 102, see Bullock v. Parsons, 193 Wash. 79;
Merchant8 Bank of Canada v. S7ms, 122 Wash. 106.
BOEING AIRPLANE COMPANY 453
lective bargaining agreements.- However, under the circumstances
herein, to construe the duration clause of the 1946 agreement as com-
pelling the Union to forego strike action for an indeterminate period
would be, in effect, to impair "its efficacy as a collective bargaining
agency," in derogation of the public policy expressed in the Act 19
We find, contrary to the contention of the Respondent, that the 1948
agreement bound the parties to continued observance of its terms,
including the no-strike clause, for a reasonable period on and after
March 16, 1947, during which time negotiation and arbitration efforts
continued. Accordingly, we are confronted with the question of
whether by April 1948, a reasonable period 20 for negotiations had
elapsed so that either party was thereafter free to terminate the con-
tract at will upon notice given to the other.
The details of the unsuccessful negotiations between the parties
from January 1947 to April 1948 are fully set forth in the Intermediate
Report. On the basis of these facts we find that certainly by April 1948,
if not earlier, it became abundantly clear that the parties had in
good faith reached a bargaining deadlock over provisions of the new
contract critical to its successful conclusion. After more than 14
months of substantially, continuous negotiations on the provisions of
a new contract, a period in itself longer than the 1-year initial term
of the 1946 contract,21 there existed no significant area of agreement
on the disputed issues from which the expectation could reasonably
arise that additional negotiation sessions would serve to break the
impasse. Indeed, the repeated failure of the Respondent and the
Union to agree on a method of arbitration or the issues to be sub-
mitted, pointed to the hopelessness of the situation as it existed prior
to the outbreak of the strike. In these circumstances, we find that a
reasonable period for adherence to the terms of the 1946 contract as
embodied in the interim agreement, including the no-strike provision,
elapsed by April 1948, when negotiations between the Respondent and
the Union reached an impasse ; and that thereafter, the 1946 contract
was terminable at the will of either party. We further find that the
letter of the Union to the Respondent, dated April 20, 1948, stating
that it "reserves the right to take appropriate action including a
11 Cf, Matter of Fafnir Bearing Co., 73 N L. R. B. 1008 ; Matter of Joseph Dyson & Sons,
Inc, 72 N . L. R. B. 445; Matter of Scullin Steel Company, 65 N. L. R. B 1294.
19 Cf , Matter of J. I. Case Company , 71 N. L R B 1145.
80 "What is a reasonable time may vary greatly with the type of case, the circumstances
then existing, and intent of the parties.... 11 1 Williston , Contracts ( Revised Edition),
102, footnote 5.
21 That the Respondent envisioned an early expiration of the 1946 agreement is evidenced
by its letter to the Union of December 11, 1946, in which it stated : "However, due to the
fact that our present agreement expires on March 16, 1946 , and further, that our experience
has shown that it takes considerable time to work out these agreements , the Company sug-
gests that negotiations should start not later than the middle of January."
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work stoppage," constituted notice of termination of the 1946 agree-
ment; and that the strike which began on April 21, 1948, terminated,
rather than breached, the 1946 contract.
The Respondent concedes that an impasse in bargaining existed
prior to the strike; but contends that this impasse removed any obliga-
tion it may have had to bargain collectively with the Union thereafter.
We find no merit in this contention. An impasse does not constitute as
license to avoid the statutory obligation to bargain collectively where
the circumstances which led to the impasse no longer remain in status
quo. The impasse was broken by the strike which began on April 22,
1948.22 What seemed a rigidity of bargaining positions before strike
action, afterward might very well have become a model of flexible com-
promise. It was then incumbent upon the Respondent to explore the
changed situation arising from strike action by resuming negotiations
with the Union.23 Inasmuch as the striking employees retained their
status and inasmuch as the Union continued to represent the majority
of the employees, the Respondent remained legally obligated to con-
tinue to bargain with the Union.24
We are of the opinion, therefore, and find, upon the entire record,
that at all times material herein no requirement existed that the Union
comply with Section 8 (d) ; and that as a result the striking employees
did not lose their status under the Act, as amended. We further find
that the Union did not breach the no-strike provision in the 1946
agreement; and that the Respondent by refusing to bargain with the
Union on and after April 25, 1948, violated Section 8 (a) (5) and
Section 8 (a) (1) of the Act, as amended, and thereby prolonged the
strike, converting what had been until April 25, 1948, an economic
strike, into an unfair labor practice strike thereafter. In view of our
findings, we shall adopt the Trial Examiner's recommendations and
order that all employees who struck on April 22, 1948, who have not
already been reinstated, be offered, upon application, immediate and
full reinstatement, with back pay for the period from 5 days after the
date on which the application is hereafter made for reinstatement to
the date of the Respondent's offer of reinstatement, less net earnings
during this period .245
22 See Matter of Craddock -Terry Shoe Corporation , 73 N. L. it. B. 1339; Jeffrey-De Witt
Insulator Company v . N. L. R. B., 91 F. ( 2d) 134 ( C. C. A. 4 ), cert. den ., 302 U. S. 731.
23 Cf. Matter of Times Publishing Company, 72 N. L. it. B . 676. We find, as did the
Trial Examiner , that the Union indicated its willingness to resume negotiations by agreeing
to attend a joint meeting with the Respondent requested by the Union 's parent body on
April 30, 1948 , and by agreeing to attend joint meetings requested by the Federal Mediation
and Conciliation Service on or about the first week in May. The Respondent refused to
attend, reiterating the view it took in its letter to the Union of April 25 , 1948, i. e., the
Union violated Section 8 ( d) and no longer possessed representative status.
19 Cf . N. L. B. B. v. Reed & Prince Mfg . Co., 118 F. ( 2d) 874 ( C. C. A. 1 ), cert . den., 313
U S 595.
25 See Matter of Tiny Town Togs, Inc., 7 N . L. R. B. 54, 69.
BOEING AIRPLANE COMPANY
ORDER
455
Upon the entire record in the 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, Boeing Airplane
Company, a Corporation, Seattle, Washington, its officers and agents,
including William M. Allen, and its successors and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Aeronautical Industrial
District Lodge No. 751, chartered by the International Association
of Machinists (Independent), as the exclusive representative of all
production and maintenance employees at the Respondent's Seattle
plants, excluding guards, truck drivers operating equipment on the
public highways, power plant operators, professional employees, and
supervisors as defined in the Act, as amended, with respect to rates of
pay, wages, hours of employment, and other conditions of employment;
(b) Engaging in like or related acts or conduct interfering with,
restraining, or coercing its employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist Aero-
nautical Industrial District Lodge No. 175, chartered by International
Association of Machinists (Independent), or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Aeronautical Indus-
trial District Lodge No. 175, chartered by International Association
of Machinists (Independent), as the exclusive representative of all the
employees in the aforesaid appropriate unit, with respect to rates of
pay, wages, hours of employment, and other conditions of employ-
ment, and if an understanding is reached, embody such understanding
in a signed agreement;
(b) Upon application, offer immediate and full reinstatement to
their former or substantially equivalent positions,26 without prejudice
to their seniority or other rights and privileges, to all those employees
who went on strike on April 22, 1948, and who have not already been
reinstated to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, dismiss-
26 See Matter of The Chase National Bank of The City of New York, San Juan, Puerto
Rico, Branch , 65 N. L . It. B. 827, 829.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing if necessary any persons hired by the Respondent on or after
April 25, 1948, who were not in the Respondent's employ on that date;
(c) Make whole the employees specified in paragraph 2 (b) above,
for any loss of pay they may suffer by reason of the Respondent's
refusal, if any, to reinstate them in the manner provided in paragraph
2 (b) above, by payment to each of them of a sum of money equal to
that which he normally would have earned as wages during the period
from five (5) days after the date on which he applies for reinstate-
ment to the date of the Respondent' s offer of reinstatement, less his net
earnings,27 if any, during said period;
(d) Post at its Seattle, Washington, plants, copies of the notice
attached hereto marked "Appendix A." 28 Copies of the said notice,
to be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material;
(e) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL BARGAIN collectively upon request with AERONAUTICAL
INDUSTRIAL DISTRICT LODGE No. 751, chartered by INTERNATIONAL
ASSOCIATION OF MACHINISTS (INDEPENDENT ), as the exclusive
bargaining representative of all employees in the unit described
herein, with respect to wages, rates of pay, hours of employment,
or other terms or conditions of employment , and if an understand-
ing is reached , embody such understanding in a signed agreement.
The bargaining unit is:
n See Matter of Crossett Lumber Co., 8 N. L R. B. 440, 497-498.
28 In the event that this Order is enforced by decree of a United States Court of Appeals
there shall be inserted in the Notice , before the words, "A DECISION AND ORDER," the
words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
BOEING AIRPLANE COMPANY 457
All production and maintenance employees, excluding guards,
truck drivers operating equipment on the public highways, power
plant operators, professional employees, and supervisors as de-
fined by the Act, as amended.
WE WILL NOT in any manner interfere with the efforts of the
above-named Union to bargain with us or refuse to bargain with
said Union as the exclusive representative of all our employees in
the above-described appropriate unit.
BOEING AIRPLANE COMPANY, A CORPORATION
AND ITS AGENT, WILLIAM M. ALLEN,
Employer.
By ---------------------------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Messrs. Patrick H. Walker, Seattle, Wash., and Walter N. Moldaaver, Wash-
ington, D. C., for the General Counsel.
Messrs. DeForest Perkins, James E. Prince, and Francis B. Holman, Seattle,
Wash., for Respondent.
Messrs. L. Presley Gill, Harold J. Gibson, John J. Sullivan, and John V. Car-
ruth, Seattle, Wash., for Lodge 751.
Samuel B. Bassett, Esq., Seattle, Wash., appearing for the purpose of filing a
motion for intervention on behalf of Warehousemen's Union Local No. 117,
affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, (A. F. of L.).
STATEMENT OF THE CASE
Upon an amended charge duly filed on April 30, 1948, by Aeronautical In-
dustrial District Lodge No. 751, International Association of Machinists (Ind.),
herein called Lodge 751 or the Union, the General Counsel of the National
Labor Relations Board, called respectively the General Counsel and the Board,
by the Regional Director of the Nineteenth Region (Seattle, Washington), issued
his complaint dated June 18, 1948, against Boeing Airplane Company, a Corpo-
ration, Successor to Boeing Aircraft Company, a Corporation, and its agent,
William M. Allen, herein called Respondent or Respondent Boeing, alleging
that Respondent had engaged in, and was engaging in, unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section
2 (6) and (7) of the National Labor Relations Act, as amended June 23,
1947, by Public Law 101 (known as The Labor Management Act of 1947),
80th Congress, Chapter 120, First Session, herein called the Act or the amended
Act. Copies of the complaint, with amended charge attached, were duly served
upon Respondent and Lodge 751.
With respect to unfair labor practices, the complaint alleged in substance:
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. That Lodge 751 was on May 31, 1947, and at all times thereafter, and now
is, the duly designated representative for purposes of collective bargaining of
Boeing employees in an appropriate unit composed of all production and main-
tenance employees, excluding guards, truck drivers operating equipment on
the public highways, power plant operators, professional employees and super-
visors as defined by the Act ;
2. That on April 25, 1948, and at all times thereafter, Respondent Boeing
has refused , and continues to refuse, to recognize and bargain with Lodge 751,
as the representative of its employees in the appropriate unit described above ;
3. That Respondent Boeing's said refusal constituted a violation of Section
8 (a) (5) of the amended Act and interfered with, restrained and coerced its
employees in the exercise of rights guaranteed them in Section 7 of the Act,
in violation of Section 8 (a) (1) of the Act.
In its duly filed answer, Respondent Boeing admitted that it was engaged
in commerce within the meaning of the Act ; that Lodge 751 was a labor organi-
zation within the meaning of the Act; that since April 25, 1948, it has refused
to recognize Lodge 751 as the collective bargaining representative of its em-
ployees, but denied that it has engaged in any of the alleged unfair labor prac-
tices and averred as defense to the refusal to bargain that employees repre-
sented by Lodge 751 lost their status as employees when on April 22, 1948,
they engaged in a strike in violation of Section 8 (d) of the amended Act.
Pursuant to notice, a hearing was held on June 30 and July 1, 1948, at Seattle,
Washington, before the undersigned Trial Examiner duly designated by the
Chief Trial Examiner. All parties were represented by counsel, participated
in the hearing, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues. At
the opening of the hearing, Samuel B. Bassett, Esq., appeared on behalf of
Warehousemen's Union Local No. 117, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (A. F. of
L.), for the purpose of filing a motion to intervene for that organization. The
grounds stated were that Lodge 751 lost its status as bargaining representative
because it struck in violation of Section 8 (d) of the amended Act; that the
striking employees lost their status as employees ; that the organization on
whose behalf he appeared thereupon began organizing the non-striking em-
ployees of Boeing and those subsequently rehired, in certain listed categories;
that the said organization is now the bargaining representative of the said
employees who constitute a craft unit appropriate for the purpose of collective
bargaining. The motion to intervene was denied. Also at the opening of the
hearing, Respondent Boeing moved to strike certain allegations of the com-
plaint. By consent of the parties ruling was deferred. The motion is now
denied'
After the evidence had been taken, the parties were advised that they might
argue orally before the Trial Examiner and submit briefs and/or proposed find-
ings of fact and conclusions of law. All parties waived oral argument and availed
' Near the close of the hearing, Respondent Boeing moved to file as a part of the record
of this proceeding, although not for purposes of evidence, a copy of the opinion and judg-
ment of the Federal District Court for the Western District of Washington, Northern
Division, in the Matter of Graham v. Boeing Airplane Co., Case No . 2034. In this case the
court denied the injunctive relief sought by the Petitioner, a Regional Director of the
National Labor Relations Board, under Section 10 (j) of the amended Act. The motion
was denied. The decision of the court, reported in 22 L. R R. M 2243, as that court
duly recognizes in its opinion, has no binding effect whatever on the Board in a proceeding
on the complaint in this case.
BOEING AIRPLANE COMPANY 459
themselves of the privilege of filing briefs. The briefs were duly mailed or
delivered on or before the stipulated date : July 12, 1948.
Upon the entire record in the case and from my observation of the one wit-
ness who testified, and after careful consideration of the briefs filed with me, I,
the undersigned Trial Examiner, make the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT AND ASSUMPTION BY IT OF THE OBLIGATIONS OF
EXISTING LABOR AGREEMENTS OF ITS PREDECESSOR CORPORATION
Until December 31, 1947 , Boeing Aircraft Company, a Washington corporation,
maintained its principal place of business at Seattle , Washington , where it owned
and operated two plants for the purpose of aircraft manufacture . From 1940
to 1947 said corporation annually purchased and had shipped to its Seattle plants
from points outside the State of Washington , materials and supplies valued in
excess of $1,000,000 , and annually produced and shipped to points outside the
State of Washington from its Seattle plants finished products valued in excess of
$1,000,000.
On or about December 31, 1947 , Respondent Boeing, a Delaware corporation,
acquired and succeeded to all the rights , title and interest in and to the business,
assets and liabilities of Boeing Aircraft Company and assumed the obligations of
the latter under its existing labor agreements and became the employer of the
personnel previously employed by Boeing Aircraft Company . Since that date,
Respondent Boeing has continued the business then acquired ; has maintained its
principal office and place of business in Seattle , Washington , and owns and oper-
ates two plants in said city and a plant in Wichita , Kansas; has been and now
is engaged at said plants in designing , manufacturing and servicing of commer-
cial and military aircraft and aircraft products.
Respondent Boeing now manufactures at its Seattle , Washington , plants, air-
craft and aircraft parts for the United States Government and for commercial
airlines , a portion of which ( valued in excess of $500,000 for the period from
January 1 , 1948, to April 22, 1948 ) was shipped to points outside the State, and
materials and supplies valued in excess of $500,000 for the period from January 1,
1948, to April 22, 1948, used in such manufacture , originate outside the State
of Washington.
William M. Allen, president and agent of Respondent Boeing, is , and at all times
subsequent to December 31, 1947, has been, engaged at Seattle, Washington, in
actively managing and directing the affairs and business of Respondent Boeing.
and prior thereto and subsequent to September 5, 1945, of its predecessor corpo-
ration, Boeing Aircraft Company.
Respondent Boeing admits that it is engaged in commerce within the mean-
ing of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Aeronautical Industrial District Lodge No. 751, herein called Lodge 751,
chartered by International Association of Machinists (Independent), is an unin-
corporated association and a labor organization within the meaning of Section
2 (5) of the National Labor Relations Act. Lodge 751 has its principal office in
Seattle, Washington.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The facts 2
On April 22, 1948, after more than 14 months of negotiations on a contract
by their collective bargaining representative, Lodge 751, and Boeing, and fruit-
less attempts at settlement of disputed issues through arbitration and concilia-
tion, the some 14,500 employees of Respondent Boeing represented by Lodge 751
went on strike. The strike was still in progress on the date of the bearing.
The issues of the case arise out of this strike action. Insofar as is practicable,
the material events are stated in the chronological order of their occurrence.
On June 17, 1937, pursuant to a petition for certification filed by Lodge 751
on or about May 31, 1937, and following an investigation of the petition, the
Board certified Lodge 751 as the collective bargaining representative of Boeing
employees in the following unit which the Board found to be appropriate for
purposes of collective bargaining:
All production and maintenance employees at Boeing's Seattle, Washington,
plants, excluding guards, truck drivers operating equipment on the public high-
ways, power plant operators, professional employees and supervisors as defined
in the Act.
The appropriateness of the unit found by the Board is admitted.
From June 17, 1937, until April 22, 1948, the date of the strike, Lodge 751,
served as collective bargaining representative of employees in the above-described
appropriate unit. It is Respondent Boeing's position that on this latter date
Lodge 751 lost its representative status because of its failure to comply with
Section 8 (d) of the amended Act. Since April 25, 1948, Respondent Boeing
has refused to recognize and bargain with Lodge 751 as the representative of
its employees. The complaint alleges that Lodge 751's representative status has
continued uninterruptedly to the present and that Respondent's refusal since
April 25, 1948, to recognize and bargain with Lodge 751, constitutes a violation
of Section 8 (a) (1) and (5) of the amended Act.
Section 8 (d) of the amended Act, in its application to the issues of this case,
provides:
That where there is in effect a collective-bargaining contract covering
employees in an industry affecting commerce, the duty to bargain collec-
tively shall also mean that no party to such contract shall terminate or
modify such contract, unless the party desiring such termination or modi-
fication-
(1) serve a written notice upon the other party to the contract of the
proposed termination or modification sixty days prior to the expiration
date thereof, or in the event such contract contains no expiration date,
sixty days prior to the time it is proposed to make such termination or
modification ;
2 Findings of fact are based upon an all -party stipulation entered into at the hearing and
received in evidence as General Counsel exhibit 2. Each of the parties objected to the
receipt in evidence of certain portions of the exhibit. All of these objections were over-
ruled. Harold J. Gibson, president of Lodge 751, the sole witness called in the proceeding,
testified credibly and without contradiction. All facts necessary to a determination of the
issues having been included in the stipulation , no reliance has been placed on his testimony.
Boeing is the term used to designate Respondent 's predecessor corporation , and includes
Respondent also where the period covered includes dates both before and after December
Si, 1947.
BOEING AIRPLANE COMPANY 461
(2) offers to meet and confer with the other party for the purpose of nego-
tiating a new contract or a contract containing the proposed modifications ;
(3) notifies the Federal Mediation and Conciliation Service within thirty
days after such notice of the existence of a dispute, and simultaneously
therewith notifies any State or Territorial agency established to mediate
and conciliate disputes within the State or Territory where the dispute
occurred, provided no agreement has been reached by that time; and
(4) continues in full force and effect, without resorting to strike or lock-
out, all the terms and conditions of the existing contract for a period of
sixty days after - such, notice is given or until the expiration date of such
contract, whichever occurs later ;
Section 8 (d) further provides:
Any employee who engages in a strike within the sixty-day period spec-
ified in this subsection shall lose his status as an employee of the em-
ployer engaged in the particular labor dispute, for the purposes of Section
8, 9, and 10 of this Act, as amended, but such loss of status for such em-
ployee shall terminate if and when he is reemployed by such employer.
In the further recital of facts which follows, attention may properly be
focused on two propositions, either of which may be determinative of the issues
herein :
1. Was there a collective bargaining contract in existence within the
meaning of the Act on'the'date of the strike, April 22,1948?
2. Did Lodge 751 comply with Section 8 (d) of the Act?
On or about March 16, 1946, Lodge 751 and Boeing executed a basic collective
bargaining agreement revising and amending a prior contract executed by them
and dated January 4, 1944. This is the last such basic labor agreement entered
into between Lodge 751 and Boeing. It provides in its Article XIII that it
"shall be and remain in full force and effect from the 16th day of March, 1946
to the 16th day of March, 1947 and thereafter until a new agreement has been
reached by the parties either through negotiation or arbitration." [Italics
supplied.] It further provides, in its Article XI, Section A, that "During the
life of this agreement no strikes shall be caused or sanctioned by the Union."
[Italics supplied.]
On or about October 24, 1946, Boeing notified Lodge 751 in writing that it
wished to modify or cha.nge• certain provisions in the existing contract and
submitted a draft of a proposed revision of the said contract.
On or about December 6, 1946, Lodge 751 replied that "due to the nearness
of the expiration date" of the existing contract, "little would be accomplished
at this time," and suggested that actual negotiations be deferred until 30 days
prior to "the expiration of our contract, and at that time the Union and the
Company go into negotiation on the proposals for a new contract covering
all items." This communication was by letter.
By letter dated December 11, 1946, Boeing accepted Lodge 751's "suggestion that
the Union and the Company go into negotiations for proposals for a new con-
tract," and added : "However, due to the fact that our present agreement expires
on March 16, 1947,8 and further, that our experience has shown that it takes
8In the original document, this date, because of typographical error, appears as March
16, 1946.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerable time to work out these agreements , the Company suggests that
negotiations should start not later than the middle of January."
By letter dated on or about December 16, 1946 , Lodge 751 advised Boeing that
it was in accord with Boeing's suggestion that the parties meet "as soon as pos-
sible after the middle of January , 1947" for negotiations on a new contract.
Negotiations on a new contract to replace the contract of March 16, 1946, actu-
ally began on January 29, 1947 , and during the period from this latter date to
April 7 , 1947 , representatives of the parties met 3 days of each week and each
party submitted both oral and written proposals for the modification of the terms
of the 1946 contract . The parties failed to agree upon the terms of a new collec-
tive bargaining agreement and failed also to agree upon a method of arbitration,
the arbiters and the issues to be arbitrated.
On or about April 7, 1947, Lodge 751 gave to the Secretary of Labor and to the
National Labor Relations Board Notice of Intention to Strike , pursuant to and in
compliance with the provisions of the War Labor Disputes Act of June 25, 1943
(57 Stat. 163 ). Within a few days thereafter , at a meeting of representatives
of Boeing and Lodge 751, Lodge 751 orally advised Boeing that Lodge 751 had
filed a notice of intention to enforce their bargaining demands by strike if
necessary , with the Secretary of Labor.
On or about April 17, 1947, the Secretary of Labor notified Lodge 751 that the
30-day waiting period provided for in Section 8 (a) (2) of the War Labor Disputes
Act began on April 9, 1947, and also notified Boeing of the filing of the notice by
Lodge 751 and of the beginning date of the 30 -day waiting period.
On or about April 16,1947 , representatives of Lodge 751 met with Commissioner
Albin L. Peterson of the United States Conciliation Service at the latter's request
to discuss the matters in dispute , and on or about April 17, 1947, furnished the
United States Conciliation Service in writing with a statement of the issues in
dispute. On or about April 18, 1947, Boeing gave Commissioner Peterson a
written statement of its position in negotiations with Lodge 751.
In April 1947, the Mediation Service of the Department of Labor and Industries,
State of Washington , was informed of the labor dispute and thereafter offered its
services to the parties. Upon being informed by the parties that the services of
the United States Conciliation Service had been requested, the State Mediation
Service refrained from further participation , it being the policy of the Medi-
ation Service of the State of Washington to act only in labor disputes which are
local in nature, leaving disputes which affect interstate commerce to the United
States Conciliation Service.
During the period between April 18 and May 8, 1947 , there were numerous
conferences between the parties and Commissioner Peterson , and tentative
agreement was reached on certain issues. The deadlock continued , however,
on certain other issues and Lodge 751 proposed that the disputed issues be
submitted to arbitration, the parties to designate an equal number of members of
the arbitration panel provided they could not agree upon the entire panel, the
members so designated to themselves select the impartial chairman or, if
unable to agree , the impartial chairman to be selected by the Secretary of
Labor. Boeing refused to accept the proposed method of selection of members
of the panel, and agreed to arbitration only on the following conditions: (1)
that either party should have the right to reject any proposed arbiter including
the impartial chairman, and (2) that in the event of arbitration the whole con-
tract be submitted for arbitration including the provisions which had been
tentatively agreed upon. Lodge 751 refused to accept these conditions and
efforts at arbitration were therefore unsuccessful.
BOEING AIRPLANE COMPANY 463
On May 10, 1947, at a general membership meeting of Lodge 751, a resolu-
tion was adopted instructing the negotiating committee to continue negotia-
tions for 2 more weeks, that Boeing should be given until May 24 to submit
its final offer, and that the membership should then vote to accept or reject
Boeing's final offer. Boeing was advised orally by representatives of Lodge
751 of the action taken at this meeting, and on May 23 separate conferences
were held by the conciliators with representatives of Lodge 751 and Boeing,
respectively.
On May 24, 1947, employees of Boeing by secret ballot rejected Boeing's final
contract offer and authorized the officers of Lodge 751 to call a strike for the
purpose of enforcing their bargaining demands. Shortly thereafter, repre-
sentatives of Lodge 751 orally advised Boeing of this action.
In the period between May 26 and August 19, 1947, there were numerous con-
ferences between the parties, some of them attended by representatives of the
United States Conciliation Service, but the deadlock continued. Negotiations be-
tween the parties continued into October, and at a meeting on October 28, 1947,
Boeing representatives orally stated that they had a new offer which was being
prepared and would be ready within a few days. Boeing's new proposal was
not submitted to Lodge 751, however, until on or about January 19, 1948. Lodge
751 protested the delay and Boeing offered several explanations, such as the
difficulty of legal questions involved, death in the family of its labor relations
manager, the fact that its director of industrial relations was on vacation and,
finally, that it would be inadvisable to submit new proposals until after the
annual election of union officers had been held.
Union elections were held on January 6, 1948, and on or about January 19,
1948, Boeing submitted to Lodge 751 its new proposal for a contract. Beginning
January 29, 1948, there were further meetings between the negotiating commit-
tees of the parties and tentative agreement was arrived at on all but 3
of the 14 articles in Boeing's newly proposed basic labor agreement. As
in earlier negotiations, Lodge 751 proposed to submit the disputed issues to arbi-
tration, but though further meetings were held between March 15 and April 13,
1948, the parties were unable to agree on the subject matter and method of arbi-
tration. Boeing contended, as it had on the earlier arbitration proposal, that
either party should have the right to reject any proposed arbiter, including the im-
partial chairman of the panel, and refused to agree that the arbiters should
be empowered to make any award in wages retroactive to March 16, 1947, or
any intermediate date over the period during which the negotiations had con-
tinued, on the ground that the contract of March 16, 1946, remained in effect.
On or about April 13, 1948, Lodge 751 notified Boeing that unless Boeing on or
before April 16, 1948, entered into arrangements with Lodge 751 to provide settle-
ment of the disputed contract terms by arbitration, Lodge 751 would on that date
meet and decide upon a course of immediate action to resolve the dispute.
On or about April 20, 1948, shift committeemen and district council delegates
of Lodge 751, representing employees of Boeing, directed the negotiating com-
mittee and officers of Lodge 751 to present their final demands to Boeing and
voted to authorize a strike if their demands were not met.
On April 20, 1948, Lodge 751 submitted to Boeing another proposal to submit
disputed provisions of the proposed contract to arbitration, retroactivity of any
wage award to be decided by the arbitration board, and the selection of an
Impartial chairman to be made by the Director of the Federal Mediation and
Conciliation Service in the case of the failure of the arbiters designated by the
parties to agree on the impartial chairman . On the same day Lodge 751 sub-
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted to Boeing compromise proposals to cover the disputed issues, subject to.
acceptance on or before 12 o'clock noon, April 21, 1948, and stated that in the
event of their rejection, Lodge 751 reserved "the right to take appropriate action
including a work stoppage."
On or about April 21, 1948, Boeing rejected the final offer of Lodge 751 for a
new collective bargaining contract and on the following day, April 22, 1948,
approximately 14,500 members of Lodge 751 employed by Boeing went on strike.
On or about April 25, 1948, Boeing notified Lodge 751 by letter that Lodge 751
"is not a collective bargaining representative under the National Labor Relations
Act" and that Boeing would no longer meet or deal with it as such. Boeing at
all times since has refused to recognize Lodge 751 as the collective bargaining
representative of its employees, and to negotiate or deal with it as such. This
being the stipulated fact it is needless to set forth in detail efforts of the Federal
Mediation and Conciliation Service to bring the disputants together in joint con-
ferences for purposes of mediation and conciliation, efforts which failed because
of Boeing's inflexible position that Lodge 751 had violated Section 8 (d) of the
amended Act and thereby lost its representative status.
There being a question of the existence of a collective bargaining contract at
the time of the strike, the following facts are pertinent :
From August 22, 1947, to the date of the strike, April 22, 1948, Lodge 751 filed
various grievances with Boeing on the ground that Boeing had violated the 1946
contract ; made numerous Employment Preference Applications to Boeing under
the appropriate Article of the 1946 contract; and after the election of union
officers in January 1948, invoked the appropriate Article of the 1946 contract
dealing with leave of absence to be granted its officers.
On the date of the strike, April 22, 1948, approximately 13,000 of the total
of 14,500 Boeing employees in the appropriate unit represented by Lodge 751, were
members of Lodge 751, and of the remaining 1,500 all had applied for membership.
Thus, at the time of the strike all employees in the appropriate unit were either
actual members of Lodge 751 or were applicants in the process of acquiring
membership.
At the time of the hearing, there were approximately 2,946 Boeing employees in
the appropriate unit not on strike who had either returned to work or had been
newly hired since the date of the strike in jobs previously held by the striking
employees. Boeing has not sent the striking employees any notice of termination
of employment but has repeatedly invited them to return to work.
B. The issues
1. Duration of the 1946 contract
Compliance with Section 8 (d) of the amended Act is required only where, in
the language of the Act, "there is in effect a collective-bargaining contract cover-
ing employees in an industry affecting commerce."
There being no question that Boeing is an "industry affecting commerce," it is
appropriate at the outset to examine the most recent collective-bargaining con-
tract entered into by the parties involved in this proceeding, for the purpose of
determining its duration. Entered into on March 16, 1946, its Article XIII pro-
vides specifically that it "shall be and remain in full force and effect from the
16th day of March, 1946 to the 16th day of March, 1947" and then continues in
the following language, "and thereafter until a new agreement has been reached
either through negotiation or arbitration." This latter clause, given its literal
BOEING AIRPLANE COMPANY 465
meaning, would bind the contracting parties in perpetuity to the terms of the
1946 contract in the event they were unable to get a new contract either through
negotiations or arbitration. Given its literal meaning, it would place a premium
on delay, because it would enable either party to bind the other to the terms of
the old contract indefinitely by engaging in dilatory practices, stretching out
negotiations over an unreasonable period, and finally refusing to enter into
a new contract . Would such a literal construction give effect to the true intent of
the parties? Obviously, it would not. This is demonstrably true when we con-
sider a simple hypothetical situation . Can it be believed, for instance, that
Boeing would consider itself bound to continue the wage scale provided in the
1946 contract after 3-or 6-or 10 years of fruitless negotiations on a new
contract during which period wages in the aviation industry had dipped to a
depression level because of widespread economic collapse?
If, on the other hand, it should be thought that the parties actually intended
to bind themselves in perpetuity to the terms of the 1946 contract in the event no
agreement on a new contract was reached either through negotiations or arbi-
tration, such intent would run contrary to public policy for it would render the
statutory bargaining representative of the employees ineffectual to the degree
that it would be incapable of fulfilling its obligations as such bargaining
representative `
It being found that a literal construction of the proviso in the 1946 contract
extending its life beyond the stated expiration date would not give effect to
the actual intent of the parties, it is necessary to determine what their actual
intent was. It seems clear that the contracting parties when they wrote the
proviso in question into the 1946 contract, contemplated that negotiations on
a new contract might well extend he.iond the stated expiration date of March
16, 1947, and that the proviso was designed and intended to provide an interim
working agreement to bridge over the period of contract negotiations, or arbi-
tration, as the case might be. This intent is indicated in the exchange of let-
ters between Lodge 751 and Boeing, dated December 6 and December 11, 1946,
respectively, in which each refers to the expiration date of the existing contract
on March 16, 1947. By these references, the parties recognized that the 1946
contract was a contract of definite duration and that its expiration date was
March 16, 1947. This is not to say that the proviso extending the contract terms
beyond its stipulated 1 year's duration was without effect ; it undoubtedly had
effect, the effect that the parties intended that it should have, and that effect
was to bind the parties to the terms of the 1946 contract for a reasonable period
following its expiration date of March 16, 1947, during which it was contem-
plated that the parties would negotiate for a new contract. After the expira-
tion of such reasonable period the parties were no longer bound by the terms of
the 1946 contract unless they then mutually agreed to extend the life of the
interim agreement beyond such reasonable period s
To hold, conversely, that the parties continued to be bound to the terms of
the 1946 contract after reasonable efforts at negotiation or arbitration on a
new contract had failed, bringing them to an impasse in their bargaining efforts,
would be to ignore the realities of the situation, the intent of the parties as
viewed in the light of normal, reasonable, prompting self-interest, and public
policy under the Act which requires that the statutory bargaining representa-
4 Compare J. I. Case, 71 N. L. R B 1145.
5 See Williston on Contracts , Section 38 , cited in General Counsel's brief, for a discussion
of contracts which if literally construed would require perpetual performance.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive shall have at least a minimal degree of freedom in representing those whom
it has been designated to represent and capacity for such action.
It would seem that a reasonable period for negotiations on a new contract
expired in May 1947, when after more than 3 months of negotiations and
attempts at conciliation of differences by the U. S. Conciliation Service, the
parties remained deadlocked over disputed issues and Boeing refused Lodge
751's offer to submit the disputed issues to arbitration. However, with restraint
and forbearance which is somewhat unusual in times when some seem to think
it is better to strike first and talk later, Lodge 751 continued beyond such reason-
able period to negotiate with Boeing on a new contract without strike, for con-
siderably more than a year after negotiations started. And during this entire
period and up to the date of the strike on April 22, 1948, Lodge 751 availed
itself of certain terms of the 1946 contract. While the stipulation is silent on
the point, it is presumed that Boeing also treated the interim agreement as
being still in existence. Thus by mutual agreement the parties appear to have
extended the life of the interim working agreement beyond what would nor-
mally constitute a reasonable period. When, after more than a year of nego-
tiations, Lodge 751 on April 20, 1948, notified Boeing that if the latter did not
accept its latest contract proposals on or before 12 o'clock noon, April 21, 1948,
Lodge 751 reserved "the right to take appropriate action including a work stop-
page," such notice was in effect notice of an intent not to be bound any longer
by the interim working agreement inasmuch as the terms of the 1946 contract,
continued under the interim working agreement, include a no-strike clause not
severable from the rest of the contract. The strike, theretore, did not breach
the agreement; started long after a reasonable period for contract negotia-
tions had elapsed, it terminated the agreement.
In view of all the recited facts, and particularly the period of negotiations which
had elapsed since the interim agreement went into effect, as well as the purpose
and character of the interim agreement itself, it is doubted that Congress intended
that such portions of Section 8 (d) of the amended Act as are raised as defense
by the Respondent in this proceeding, should apply to such interim agreements.
The parties themselves, both before and after the effective date of the amended
Act, had provided and practiced in substance all that Section 8 (d) would require
of them, by continuing in effect far in excess of the statutory 60-day period and
long after its expiration date, the terms of a contract which both parties wished
to modify or terminate by the substitution of a new contract, and by carrying on
continuous negotiations during the interim period. However, if the interim work-
ing agreement which continued the terms of the 1946 contract after its expiration
date be considered a collective bargaining contract such as is meant in Section 8
(d) of the amended Act-and the General Counsel appears to concede that it
should be so considered-Section 8 (d) does apply. On the assumption that it does
apply, the focus of our inquiry shifts to the proposition:
2. Did Lodge 751 satisfy the requirements of Section 8 (d) of the Act?
It is clear that both Lodge 751 and Boeing desired a modification or termina-
tion of the existing contract ; such desire was manifested by an exchange of letters
as early as December 1946. But since it was Lodge 751 who actually terminated
the existing agreement, it was Lodge 751 who had to comply with the require-
ments of Section 8 (d).
A conclusion of compliance or non -compliance hinges somewhat on whether
a literal or "dictionary " construction be given the applicable portions of Section
8 (d), or whether they be construed in the light of the entire statutory scheme
BOEING AIRPLANE COMPANY 467
and the purposes sought to be accomplished under the Act. Respondent in his
brief , while conceding that a remedial statute should be liberally construed,
actually would impose on Section 8 (d) a most rigid and literal construction.
Thus he appears to construe Section 8 (d) (1) to mean that no matter how
often or over what period of time, both before and after the effective date of the
amended Act, the parties met and exchanged proposals and counterproposals
for the modification of the existing contract , and although actual notice of intent
to strike and thus to terminate the existing contract was given by the noticer
far in excess of 60 days before the agreement was actually terminated, this
would not satisfy the notice requirements , but there must be in addition to all
this, in the period following the effective date of the amended Act , a notice in
writing to be served upon the other party, containing a statement of the proposed
modifications and the date on which it is proposed that the termination or modi-
fication occur.
Assuming without finding that this is the literal construction of 8 (d ) ( 1), I am
unable to agree that such a literal construction is either justified on equitable
grounds or required by any rule of law. Ambiguity does not arise solely from the
literal meaning of words, which may not be at all ambiguous in isolation from
their statutory context; a sentence or a clause or an entire section of a statute
may properly be said to be ambiguous if when given its unambiguous literal mean-
ing it runs counter to, or fails to harmonize with , the overall statutory scheme
of which it is a part .' As stated by Judge Learned Hand for the Court in Cabell
v. Markham , 148 F . ( 2d) 737 , 739: "One of the surest indexes of a mature and
developed jurisprudence [ is] not to make a fortress out of a dictionary, but to
remember that statutes always have some purpose to accomplish , whose sympa-
thetic and imaginative discovery is the surest guide to their meaning."
Section 8 (d) is but a part of a statutory scheme one of the basic purposes
of which is to narrow the field of industrial conflict by requiring appropriate
parties to make a bona fide effort to settle their differences through the orderly
processes of collective bargaining . To insure against an abrupt termination
of contractual relationships in the labor -management field and thus to encour-
age the settlement of differences through collective bargaining , Congress pro-
vided in Section 8 (d), as a part of its overall statutory scheme, what is in effect
a "cooling off" or waiting period of 60 days, during which neither party to a
collective bargaining contract can terminate or modify it; during which the
conciliation and mediation services of the State and Federal governments are
to be served with appropriate notice so as to enable them to proffer their services
in settlement of disputed issues ; and during which the parties are under a
continuing duty to meet and negotiate . At the end of the 60 -day period, the
party desiring to terminate or modify the existing agreement is free to act.
This is how 8 ( d) fits into the statutory scheme, and its formal or notice require-
ments should not be so strictly construed as to make a caricature of its under-
lying purpose.
It can hardly be questioned that all that was intended to be accomplished
by Section 8 (d) was accomplished after as well as before the effective date
of the amended Act. As early as December 1946, Lodge 751 notified Boeing
in an exchange of letters of its willingness to negotiate a new contract. Such
9I would not , however, have it inferred that I agree that Section 8 (d) is free from
ambiguity in its own text. To the contrary , I find certain portions of it so ambiguous that
their literal meaning , if sought outside of the context of the entice statute, is almost
impossible of ascertainment . See footnote 7, infra.
817319-49-vol. 80-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action would necessarily contemplate the modification or termination of the
existing contract . Other notices followed throughout the period of negotia-
tions, for what could be more specific in the way of a notice of intent to modify
or terminate an existing contract than a proposal of terms for a new contract?
Every proposal and counterproposal made by Lodge 751 during the entire period
of negotiations was in effect a notice of an intent to modify or terminate the
existing contract . Therefore , it must be found that at all times during the
period of negotiations , both before and after the effective date of the amended
Act, Respondent was fully advised of Lodge 751's intent to modify or terminate
the existing contract and the terms sought.
It seems clear that the notice requirements of Section 8 (d) (1) could not
have been intended to bind the noticer to the terms for modification or termi-
nation of the existing contract set forth in the notice , or to limit the period
of negotiations following the notice to the 60-day period. Thus , assuming that
during the 60-day period following service of the notice , the noticer wishes to
amend or modify the proposals contained in its notice, is it then required to
prepare and serve on the other party a new notice which would have the effect
of initiating a new 60-day period in which it could neither modify nor terminate
the existing agreement ? Or, assuming that the 60-day period of negotiations
brought progress in reaching an understanding on disputed issues and the no-
ticer wished to defer terminating the existing contract until efforts at settle'
ment had been further explored , would it act at its peril in not terminating
the existing contract on the date it had originally proposed and be required
to start all over again , with a new notice of intent and a further mandatory
60-day cooling-off period ? Obviously , to give such construction to Section 8
(d) (1) would be to make it run counter to the statutory scheme, for it would
frustrate the accomplishment of the very purpose for which the 60-day period
was instituted , namely , to encourage settlement of disputed issues through
orderly processes of negotiation and conciliation , and to guarantee to both
parties to a collective bargaining agreement a reasonable period in which to
explore their differences before the contractual relationship is broken off. Im-
pressed into such a rigid mould of formalistic requirements , the party desiring
to modify or terminate the existing agreement would be constrained not to
depart in the slightest particular from its original proposals and would be
propelled to act in breaking off the contractual relationship on the certain date
it had given regardless of the progress made in negotiations . Plainly, this
would not be in keeping with the statutory intent.
Construed in keeping with the statutory scheme of which it is part, Section
8 (d) (1) it would appear to mean simply that the party terminating or modifying
the existing contract shall at least 60 days prior to the effective date of the pro-
posed modification or termination , notify the other party of its proposal. It is not
required that the proposed modification or termination take place in exactly 60
days ; it may not take place in less than 60 days. If, after notice has been
given of intent to modify or terminate the existing contract, the parties wish
to continue the waiting or cooling-off period beyond the 60-day period for
further negotiations , Congress can hardly have intended to place obstacles
in the way of such further negotiations by means of formalistic requirement.
In the instant case, Lodge 751 waited more than a year after it had first
notified Boeing of its proposed modification or termination of the existing
contract , a notice which was renewed every time it made a new contract proposal,
and waited months more than the required 60-day period following the effective
date of the amended Act
BOEING AIRPLANE COMPANY 469
Assuming without finding 7 that Section 8 (d) (1) requires the party terminat-
ing an agreement to give a 60-day notice to the other party not only of the pro-
posed modifications but further notice that if the proposed modifications are not
accepted it will act unilaterally to modify or terminate the existing contract, it
does not necessarily follow that it is required to state the precise date beyond
the 60-day period on which it proposes to take such action, the noticee being
fully advised that the noticer may not take such action until the 60 days have
elapsed. If it were required that the noticer give a date certain the party de-
siring to modify or terminate the existing contract would almost inevitably state
the nearest date following the expiration of the 60-day period in order to reserve
to itself all possible latitude in enforcing its demands by unilateral action. It
may be that Congress intended to accomplish this result, and support for this view
is found in a literal reading of 8 (d) (1). For reasons already fully stated, I
do not believe that such a literal reading is required or that it would effectuate
the policies of the Act to find, on the facts of this case, that a failure to comply
with a formalistic detail where the substance of the notice requirements has been
satisfied , constitutes a violation.
There can be little doubt that Respondent was fully advised many months before
Lodge 751 acted to terminate the existing agreement, that it intended to so act
unless terms for a new contract were agreed upon either through negotiation or
arbitration. The strike notice which Lodge 751 filed under the War Labor Dis-
putes Act in April 1947, of which Boeing was admittedly advised ; in the action
taken in May 1947 by employees of Boeing authorizing Lodge 751 to call a strike for
7 Section 8 (d) (1) Is somewhat less than pellucid in its literal meanings. One has been
taught to believe that a contract with a definite expiration date expires on that date by its
own terms, and yet it is required that the party who "terminates" such a contract shall
give notice 60 days before its expiration date. (It is inferred that reference is to that
species of contracts which though of definite duration contain automatic renewal clauses.)
One has also been taught that a party to a contract cannot unilaterally modify it without
breaching it, unless it by its terms provides for unilateral modification. If it does so pro-
vide it is difficult to see why the notice requirements should apply. For the purposes of the
instant case , the key words of Section 8 (d) (1) are• "proposed termination or modifica-
tion." Does this mean a simple statement by the noticer that he proposes to terminate or
modify the existing contract, or does it mean that the notice should set forth in what par-
ticulars he proposes to modify the existing contract? Apparently the latter, for Section
8 (d) (2) requires an offer to negotiate with the other party on the "proposed modifica-
tions," or for a new contract. But if the noticer desires to terminate an existing contract
by executing a new one-and certainly that is one way to terminate a contract-is he
required not only to state this fact in the notice but also to embody in it all the terms which
he would include in a new contract? Does the requirement that the notice be served "sixty
days prior to the time it is proposed to make such termination or modification," mean that
the notice must contain a date certain on which it is proposed to terminate or modify the
existing contract, said date to be precisely 60 days from the date on which the notice is
served? Or does it mean simply that the notice must be served at least 60 days before the
"proposed termination or modification" occurs' When one considers the impact of Sec-
tion 8 (d) (3) on the notice requirements of 8 (d) (1) further difficulty is encountered.
8 (d) (1) when read in the light of the notice requirements of 8 (d) (3), appears to require
that a notice in conformity with its terms be given only after a "dispute" has arisen over
a proposed modification or termination of an existing contract Viewed in this light, 8
(d) (1) would appear to require nothing more than a notice of intent to modify or terminate
the existing agreement, since it would be assumed that a dispute would not arise in a
vacuum and that the conflicting proposals of the disputants were known to each other. But
8 (d) (2) definitely envisages negotiations on "proposed modifications." It is apparent,
without proceeding further, that the exact literal meanings of Section 8 (d) are in some
respects difficult of ascertainment and that reference to the general purposes of the statute
is not inappropriate. For the purposes of this Report, I have attempted to measure what
has been done in the instant case against the widest possible construction that may be
given Section 8 (d).
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purpose of enforcing their bargaining demands, of which Boeing was ad-
mittedly advised ; these actions can have left no reasonable doubt in Respond-
ent's mind that Lodge 751 intended to terminate the existing agreement by strike
if necessary to enforce its demands for a new contract. To argue, as Respondent
appears to argue, that continued negotiations after the notice has been given
amounts to a waiver of the notice by the noticer, lacks persuasiveness, for, as-
suming that Section 8 (d) (1) requires that such notice be given, continued nego-
tiations by the noticer are mandatory for at least 60 days thereafter.
It seems clear that Lodge 751 at no time waived or in any way rescinded its
notice of intent to strike if necessary to enforce its bargaining demands and that
all it did in April 1948, was to obtain a renewal of the mandate to strike already
given it nearly a year earlier by its members, and to notify Respondent that such
renewal had been granted and would now be exercised on a date certain if its
demands were not met. The notice of intent to strike is properly viewed as a
continuing one, just as much so as if it had been formally renewed every time the
parties met, both before and after the effective date of the amended Act. Assum-
ing, therefore, that Section 8 (d) (1) requires that such notice be given, in all
respects except the possible requirement that it state a date certain for the
proposed termination, and the formal requirement that the notice shall be in
writing and shall be served by the party terminating the contract upon the other
party, the requirements of the statute have been met. I would not hold that such
insubstantial deviations from the letter of the law constitute a violation of it,
for, in my opinion, as previously stated, the notice requirements of Section 8 (d)
(1) have been substantially satisfied and it would not effectuate the basic poli-
cies of the Act to hold otherwise.
Respondent in his brief ingeniously argues that had the notice of April 20,
1948-which he appears to concede is the kind of notice required by Section 8
(d)-provided for the statutory 60-day period of negotiations, an agreement
might well have been reached and the strike avoided. This is, of course, possible,
though it is remarked that Respondent appears to have shown no hesitancy in
flatly rejecting the final proposal for settlement of disputed issues made by
Lodge 751 on that date and on May 4, 1948, caused to be published in local news-
papers an advertisement in which it stated, inter alia : "It has become increasingly
clear to the company, in the negotiations which have continued for more than a
year that there is now no opportunity to agree on a fair and workable contract
with the present officers of Local 751." Certainly, Respondent's argument would
have more force if the notice of April 20, 1948, had not been preceded, not by just
60 days of negotiations during which the existing agreement had been kept in
effect, but by more than 14 months of negotiations and fruitless efforts at settle-
ment by the U. S. Conciliation Service.
We turn now to a consideration of the requirements of Section 8 (d) (3) of the
amended Act.
Section 8 (d) (3) provides that within 30 days after the notice required in
Section 8 (d) (1) has been given, the noticer shall notify both the Federal Medi-
ation and Conciliation Service and "any State or Territorial agency established
to mediate and conciliate disputes within the State or Territory where the dispute
occurred," of "the existence of a dispute." Clearly, the mere submission of pro-
posals for the modification or termination of an existing contract does not neces-
sarily mean that a dispute has arisen. Particularly is this true if, as is the case
here, both parties desire to modify the existing contract or terminate it by
executing a new one. To determine when the 30-day period provided in Section
8 (d) (3) began to run, it is first necessary to determine when a dispute arose.
BOEING AIRPLANE COMPANY 471
It would not appear that the differences manifested by the parties in early nego-
tiations would amount to a "dispute" within the meaning of Section 8 (d) (3),
for the 30-day notice it requires is related to the 60-day notice requirements of
8 (d) (1) and a party acting under the latter section could hardly be expected
to propose unilateral action breaking off a contractual relationship until there
had arisen something in the nature of an impasse in negotiations.
Such impasse appears to have been reached by the parties here involved in
April 1947, when they were unable to agree upon the terms of a new collective
bargaining contract or a method of arbitrating their differences. It was at that
time, April 7, 1947, that Lodge 751 filed its strike notice under the War Labor
Disputes Act During the same month and well within the 30-day period, both
Federal and State agencies of conciliation and mediation were duly notified
of the dispute. The State agency did not participate then or at any later date
in efforts at mediation and conciliation because of its policy of correlating its
own activities with those of the Federal agency. In view of this policy, well
known to both parties, it would be idle to argue that Lodge 751 was required
to give a second notice to this same agency after the effective date of the
amended Act. Certainly, Congress did not intend to require what admittedly
would have been a futile, silly and useless act.
The U. S. Conciliation Service, promptly upon notice, proffered its services to
the disputants and in the period between April 17, 1947, and August 19, 1947,
and on occasion thereafter, sought to bring about an agreement between them.
It is duly noted that Section 202 (a) of the amended Act created an independent
agency to be known as the Federal Mediation and Conciliation Service ; pro-
vided that for 60 days after the enactment of the amended statute (June 23,
1947) the term Federal Mediation and Conciliation should refer to the Con-
ciliation Service of the Department of Labor; and that Section 202 (d) of the
amended Act provided that all mediation and conciliation functions of the
Secretary of Labor or the United States Conciliation Service were to be trans-
ferred upon the sixtieth day after the enactment to the newly created media-
tion and conciliation agency, also providing that such transfer should not effect
any proceedings pending before the United States Conciliation Service. It is
clear therefrom that notice served upon the United States Conciliation Service
was just as effectively notice served upon its statutory successor, the Federal
Mediation and Conciliation Service, and since such notice is properly consid-
ered a continuing one, I am convinced and find that the requirements of Section
8 (d) (3) were adequately met by Lodge 751.8
Subsections 8 (d) (2) and (4) require little discussion. It having been
found that Lodge 751 complied with the notice requirements of subsections 8
(d) (1) and (3), it follows on the admitted facts of this case that there was
compliance with subsection 8 (d) (2) and (4) also. It is so found.
3. Other defenses
Respondent in his brief argues that even if it be found that Lodge 751,
fulfilled the requirements of Section 8 (d), there still has been no refusal on
the part of Respondent to bargaining collectively within the meaning of the
Act, on and after April 25, 1948, because: (1) the strike was in violation of an
8 Counsel for Respondent in his brief expresses "doubt" that the requirement of 8 (d)
(3) was met, but argues that the answer turns largely on the same considerations going
to 8 (d) ( 1) and 8 (d) (4).
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existing no-strike agreement; (2) an impasse in bargaining had been reached
on and before April 25, 1948, and it is not required that an employer "continue
to meet with the representative of the employees if an impasse has been reached" ;
(3) the record shows no proper demand by Lodge 751 to bargain on and after
April 25, 1948; (4) an employer is not required to bargain where it has a rea-
sonable doubt as to the union's status as majority representative.
1. It has been found that strike action by Lodge 751 on April 22, 1948, did not
breach the then existing agreement but terminated it. Further discussion on this
point would be repetitive. Had the strike been in violation of an existing no-strike
contract, I would find Respondent's argument persuasive.
2. There is no authority for the proposition that either party is released from a
duty to bargain because an impasse has been reached in negotiations on one or
more disputed points. The reasoning in the Sands case (Sands Manufacturing
Co., 306 U. S. 332), quoted by Respondent, follows from a finding that the labor
organization involved had breached its contract. Such is not the case here. Other
courts have held that neither party is required indefinitely to negotiate on some
issue where after a reasonable period of bargaining a stalemate has been reached,
but the overall duty to bargain continues to run because there is always the possi-
bility that the disputed issue may be compromised by agreement on other issues,
and the duty to bargain transcends the negotiation of a contract, though that is
one of its primary purposes.
3. Lodge 751 made known its desire to continue negotiations after the date of
the strike by agreeing to attend a joint conference with Respondent requested by
its parent body, and by agreeing to attend joint meetings requested by repre-
sentatives of the U. S. Conciliation Service, a request refused by Respondent on
the ground that Lodge 751 no longer had representative status. Such manifes-
tations of willingness to continue negotiations might not suffice for the purposes
of a formal demand or request to bargain addressed directly to Respondent by
Lodge 751, if such demand or request were required under the facts of this case.
I think they were not required. By letter dated April 25, 1948, Respondent noti-
fied Lodge 751 that Lodge 751 "is not a collective bargaining representative under
the National Labor Relations Act" and that Boeing would not meet or deal with it
as such. It would be hard to imagine a more definite and conclusive refusal to
bargain than is contained in this letter, and, obviously, there was no duty on
the part of Lodge 751 to serve Respondent with a formal demand for bargaining
rights thereafter. Its willingness and desire for continued negotiations was
amply demonstrated.
4. A reasonable doubt as to a union's majority may, under some circumstances,
justify the employer in a refusal to bargain. Here, however, Respondent could not
have doubted the union's majority status, for it admits that on the date of the
strike Lodge 751 represented all of the employees in an appropriate unit. It
cannot rely on its mistaken belief that the strike of April 22, 1948, was in viola-
tion of Section 8 (d) of the amended Act, for a misconception of meaning of a
law affords no excuse for its violation. Even if Lodge 751 had lost its actual
majority following the strike-the credible and uncontroverted evidence shows
that it did not-this would not have served to release Respondent from its duty
to bargain, inasmuch as by its letter of April 25, 1948, refusing to recognize and
bargain with Lodge 751, it converted the until then economic strike into an
unfair labor practice strike, and any loss of majority thereafter would nor-
mally be attributed to Respondent's unfair labor practices.
BOEING AIRPLANE COMPANY
C. Concluding findings
473
It is found :
1. All production and maintenance employees employed by Respondent Boe-
ing at its Seattle, Washington, plants, excluding guards, truck drivers operating
equipment on the public highways, power plant operators, professional em-
ployees and supervisors as defined by the Act, at all times material herein con-
stituted and do now constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9 (b) of the Act;
2. At all times material herein Lodge 751 has been , and Lodge 751 is now,
the representative designated for the purposes of collective bargaining by the
majority of the employees in the aforesaid unit, and by virtue of Section 9 (a)
of the Act has been at all times material herein, and is now, the exclusive
representative of all the employees in the said unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment, and other
conditions of employment ;
3. On April 25, 1948, Respondent Boeing and its agent, William M. Allen,
refused, and at all times thereafter have continued to refuse, to bargain col-
lectively with Lodge 751 as the exclusive representative of employees in the
described appropriate unit, in violation of Section 8 (a) (5) of the Act, thereby
interfering with, restraining and coercing Boeing employees in the exercise
of the rights guaranteed them in Section 7 of the Act within the meaning of
Section 8 (a) (1) of the Act ;
4. By their refusal to recognize and bargain with Lodge 751 on April 25,
1948, and thereafter, Respondent Boeing and its agent, William M Allen, con-
verted the strike which began on April 22, 1948, into an unfair labor practice
strike, thereby prolonging it.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in
connection with the operations of Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to be unfair
labor practices tend to lead, and have led, to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor
practices, it is recommended that Respondent cease and desist therefrom and
take certain affirmative action which it is found will effectuate the policies of
the Act.
It having been found that on April 25, 1948, Respondent refused, and at all
times since has continued to refuse, to recognize and bargain with Lodge 751
as the exclusive representative of its employees in an appropriate unit, and that
the said refusal constitutes a violation of Section 8 (a) (1) and (5) of the Act,
it is recommended that Respondent, upon request of Lodge 751, recognize and
bargain with Lodge 751 as the exclusive representative of its employees in the
appropriate unit with respect to rates of pay, wages, hours, and others terms or
conditions of employment.
It has been found that Respondent by its refusal on and after April 25, 1948,
to recognize and bargain with Lodge 751 as the exclusive representative of its
employees in an appropriate unit, prolonged the strike which began on April 22,
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1948, converting it from an economic into an unfair labor practice strike. In
order to effectuate the policies of the Act, it is recommended that Respondent,
upon application, offer reinstatement to their former or substantially equivalent
positions,' without prejudice to their seniority and other rights and privileges,
to all those employees who went on strike on April 22, 1948, and who have not
already been reinstated to their former or equivalent positions, without prejudice
to their seniority and other rights and privileges, dismissing if necessary any
persons hired by Respondent on or after April 25, 1948, and who were not in the
employ of Respondent on that date. It is also recommended that Respondent
make whole those employees who went on strike on April 22, 1948, and who
have not previously been reinstated in the manner provided above, for any loss
of pay they may suffer by reason of Respondent's refusal, if any, to reinstate
them as provided above, by payment to each of them of a sum of money equal
to that which he normally would have earned as wages during the period from
five (5) days after the date on which he applies for reinstatement, to the date of
Respondent's offer of reinstatement in the manner provided above, less his net
earnings, if any, during said period"
It is believed that Respondent's refusal to bargain in violation of Section 8
(a) (5) of the Act was based upon a misconception of the law rather than a
desire and intent generally to frustrate the employees in the exercise of the
rights guaranteed them in Section 7 of the Act. Therefore, a broad cease and
desist order is not recommended.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS of LBw
1. Aeronautical Industrial District Lodge No. 751, chartered by International
Association of Machinists (Independent), is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All production and maintenance employees employed by Respondent Boeing
at its Seattle, Washington, plants, excluding guards, truck drivers operating
equipment on the public highways, power plant operators, professional employees
and supervisors as defined by the Act, constitute a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b) of the Act.
3. Aeronautical Industrial District Lodge No. 751, chartered by International
Association of Machinists (Independent), was on April 25, 1948, and at all times
since has been, the exclusive representative of all the employees in the afore-
said appropriate unit for the purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
4. By refusing on April 25, 1948, and at all times thereafter, to bargain
collectively with Aeronautical Industrial District Lodge No. 751, chartered
by International Association of Machinists (Independent), Respondent Boeing
and its agent, William M. Allen, have engaged in, and are engaging in, unfair
labor practices, within the meaning of Section 8 (a) (5) of the Act.
5. By refusing on April 25, 1948, and at all times thereafter, to bargain
collectively with Aeronautical Industrial District Lodge No. 751, chartered
by International Association of Machinists (Independent), Respondent Boeing
and its agent, William M. Allen, interfered with, restrained, and coerced the
See Matter of the Chase National Bank of the City of New York , San Juan, Puerto Rica,
Branch, 65 N. L. R. B. 827.
11 See Matter of Crossett Lumber Co., 8 N. L. It . B. 440, 497-8.
BOEING AIRPLANE COMPANY 475
employees of Respondent Boeing in the exercise of the rights guaranteed in
Section 7 of the Act , thereby engaging in unfair labor practices within the
meaning of Section 8 ( a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law , and upon
the entire record in this case , the undersigned recommends that Respondent,
Boeing Airplane Company, a Corporation , Seattle, Washington , its officers and
agents, including William M. Allen , and its successors and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Aeronautical Industrial District
Lodge No. 751 , chartered by International Association of Machinists ( Independ-
ent), as the exclusive representative of all its employees in the above -described
appropriate unit ;
(b) Engaging in like or related acts or conduct interfering with, restraining,
or coercing its employees in the exercise of the rights to self-organization, to
form labor organizations , to join or assist Aeronautical Industrial District
Lodge No. 751 , chartered by International Association of Machinists (Inde-
pendent ), or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which it is found will effectuate the
policies of the Act :
(a) Upon request , bargain collectively with Aeronautical Industrial District
Lodge No. 751, chartered by International Association of Machinists (Inde-
pendent ), as the exclusive representative of all the employees in the above-
described appropriate unit and if an understanding is reached , embody such
understanding in a signed agreement;
(b) Upon application , offer immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to their seniority or
other rights and privileges , to all those employees who went on strike on April
22, 1948, and who have not already been reinstated to their former or sub-
stantially equivalent positions, without prejudice to their seniority or other
rights and privileges , dismissing if necessary any persons hired by Respondent
on or after April 25, 1948, and who were not in Respondent 's employ on that
date;
(c) Make whole the employees specified in paragraph 2 (b) above, for any loss
of pa$ they may suffer by reason of Respondent 's refusal, if any, to reinstate
them in the manner provided in paragraph 2 (b) above, by payment to each of
them of a sum of money equal to that whicl. he normally would have earned
as wages during the period from five (5 ) days after the date on which he
applies for reinstatement to the date of Respondent 's offer of reinstatement, less
his net earnings , if any, during said period ;
(d) Post at its Seattle, Washington , plants, copies of the notice attached hereto
marked , "Appendix A." Copies of the said notice , to be furnished by the Regional
Director of the Nineteenth Region, shall , after being duly signed by Respondent's
representative , be posted by Respondent immediately upon receipt thereof; and
maintained by it for sixty ( 60) consecutive days thereafter, in conspicuous places,
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material ;
(e) Notify the Regional Director of the Nineteenth Region (Seattle, Washing-
ton), in writing, within ten (10) days from the receipt of this Intermediate
Report and Recommended Order, of what steps Respondent has taken to comply
herewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report and Recommended Order, Respond-
ent notifies the said Regional Director in writing that it will comply with the
foregoing recommendations, the National Labor Relations Board issue an order
requiring Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may, within
twenty (20) days from the date of service of the order transferring the case to
the Board, pursuant to Section 203.45 of said Rules and Regulations, file with
the Board, Rochambeau Building, Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Interme-
diate Report and Recommended Order or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof; and any
party may, within the same period, file an original and six copies of a brief
in support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing the
same shall serve a copy thereof upon each of the other parties. Proof of service
on the other parties of all papers filed with the Board shall be promptly made as
required by Section 203.85. As further provided in said Section 203.46, should any
party desire permission to argue orally before the Board, request therefor must
be made in writing to the Board within ten (10) days from the date of service
of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203 48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections and exceptions thereto shall be deemed
waived for all purposes.
WILLIAM E. SPENCER,
Trial Examiner.
Dated July 20, 1948.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL BARGAIN collectively upon request with AERONAUTICAL INDUSTRIAL
DISTRICT LODGE No. 751, chartered by INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS (INDEPENDENT), as the exclusive bargaining representative of all em-
ployees in the unit described herein, with respect to labor disputes, griev-
ances, wages, rates of pay, hours of employment, or other terms or conditions
BOEING AIRPLANE COMPANY 477
of employment, and if an understanding is reached, embody such understand-
ing in a signed agreement. The bargaining unit is:
All production and maintenance employees, excluding guards, truck drivers
operating equipment on the public highways, power plant operators, profes-
sional employees and supervisors as defined by the Act.
WE WILL NOT in any manner interfere with the efforts of the above-named
Union to bargain with us or refuse to bargain with said Union as the exclu-
sive representative of all our employees in the above-described appropriate
unit.
BOEING AIRPLANE COMPANY, A CORPORATION,
AND ITS AGENT, WILLIAM M. ALLEN,
Employer.
Dated---------------------- By-----------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.