Boeing Co.

National Labor Relations Board - Board Decisions

Jul 10, 2002

337 N.L.R.B. 758 (N.L.R.B. 2002)

758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Boeing Company and Southern California Pro­
fessional Engineering Association. Case 21–CA–
33549
July 10, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On September 5, 2001, Administrative Law Judge
Lana H. Parke issued the attached decision. The Charg­
ing Party Union filed exceptions and a supporting brief,
the Respondent filed an answering brief, and the Union
filed a reply brief. Additionally, the Respondent filed a
cross-exception, the Union filed an answering brief, and
the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge and the
complaint is dismissed.
Jean Libby, Atty., for the General Counsel.

Lawrence A. Michaels, Atty., of Los Angeles, California, for the

Respondent and William R. Hartman, Jr., Atty., of Seal
Beach, California, for the Respondent .
Robert M. Dohrmann, Atty., of Los Angeles, California, for the
Union.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This case was
tried in Los Angeles, California on July 9 and 10, 2001. The
1 The Charging Party Union has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 The Union argues in its exceptions that the judge erred in finding
that the Letter of Understanding that the parties executed did not create
a bargaining obligation. Even assuming that this Letter of Understand­
ing imposed such a bargaining obligation on the Respondent, we agree
with the judge that the Respondent offered to bargain and that the Un­
ion effectively waived bargaining by declining to discuss the issue
based on its filing of the instant unfair labor practice charge.
Additionally, we find it unnecessary to pass on the Respondent’s
cross-exception regarding the admissibility into evidence of the Un­
ion’s bargaining notes from October 15, 1999, because the judge’s
ruling denying admission was at most harmless error.
charge was filed October 8, 19991 by Southern California Pro­
fessional Engineering Association (the Union or SCPEA)
against The Boeing Company (Respondent) and the complaint
was issued March 30, 2001. The issue is whether Respondent
violated Section 8(a)(5) and (1) of the Act by failing to bargain
in good faith with the Union by unilaterally changing compen­
sation and benefit plans of a group of employees transferring
into the Union’s bargaining unit following Respondent’s
merger with McDonnell Douglas Corporation.
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in the manufacture of
aircraft and aerospace products at facilities located in Long
Beach and Huntington Beach, California, where it annually
purchases and receives at its California facilities goods valued
in excess of $50,000 directly from suppliers located outside the
State of California. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or­
ganization within the meaning of Section 2(5) of the Act. 2
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
In December 1996, Respondent acquired the aerospace and
defense business of Rockwell International, including its facili­
ties located in Seal Beach and Downey, California, which be-
came a subsidiary of Respondent called Boeing North America
(BNA). The BNA engineers, numbering approximately 1400,
were not represented by a union. These engineers (affected
employees) are at the center of the dispute herein.
In August 1997, Respondent merged with McDonnell Doug­
las Aircraft Corporation (MDC), which had facilities in Hunt­
ington Beach and Long Beach, California. The MDC engi­
neers, numbering about 5,000, were represented by the Union.
In 1998 Respondent decided to relocate the affected employees
from the former BNA Seal Beach and Downey facilities to the
former MDC facilities of Huntington Beach and Long Beach.
At that time, Respondent voluntarily recognized the Union as
the representative of all engineers who would be located at the
Huntington Beach and Long Beach facilities and assumed the
obligations of the collective-bargaining agreement in effect
May 1, 1996 through March 4, 2001 between the Union and
MDC (the SCPEA agreement.) Computer system constraints
prevented immediate transfer of the affected employees into the
compensation and benefit plans set forth in the SCPEA agree­
ment. Kenneth Eriksen (Mr. Eriksen), Director of Labor Rela­
tions for Military Transport Aircraft Division of Respondent,
informed the Union president, Don Peter (Mr. Peter), that al-
1 All dates are in 1999 unless otherwise indicated.
2 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.
337 NLRB No. 125
BOEING CO. 759
though Respondent intended to place the affected employees in
the SCPEA unit, Respondent had no choice but to delay place­
ment of affected employees into the SCPEA agreement’s com­
pensation and benefit plans until computer constraints could be
worked out. The parties agreed orally that the affected em­
ployees would retain their current benefit plans until the con­
straints were removed and thereafter would receive the benefits
set forth in the SCPEA agreement. Except for the benefit pro-
visions, the implementation of which had to await computer
systems alteration, the terms and conditions of the SCPEA
agreement applied to the affected employees upon transfer.
The affected employees could file a grievance, use the arbitra­
tion procedure, and were bound by all unconstrained provi­
sions.
Mr. Eriksen agreed to draft a letter of understanding (First
LOU) to reflect the parties’ agreement. The First LOU was to
contain language allowing the affected employees to remain in
the BNA-established benefits, compensation, and work condi­
tions plans until computer programmers made the technological
changes necessary to place the affected employees under the
SCPEA contract. When the necessary computer programming
was completed, Respondent would put the affected employees
into the SCPEA benefits and compensation package. Mr. Erik­
sen testified that prior to October 15, 1998, there was never any
conversation between Respondent and the Union about any
objective other than placing the affected employees into the
SCPEA plan once the constraints were lifted. The First LOU,
dated October 6, 1998 essentially provided that benefits, work­
ing conditions and compensation for affected employees would
remain as established at BNA while system constraints existed.
It was never signed.
On October 15, 1998, Respondent and the Union held an
“all-hands” orientation meeting at the Long Beach facility for
the BNA Seal Beach engineers who would be the first to trans­
fer. In response to questions from the affected employees, Mr.
Peter asked them which benefit package they would prefer
(when constraints lifted): the SCPEA package or the Boeing
Company package being offered to unrepresented employees
called the Total Compensation and Benefits Plan. By show of
hands, employees nearly unanimously chose the Total Com­
pensation and Benefit Plan. Following the meeting, according
to Mr. Eriksen, Mr. Peters requested and Mr. Eriksen agreed
that he would try to get corporate approval to the Total Com­
pensation and Benefits Plan for affected employees. He and
Mr. Peter agreed that a letter of understanding different from
the First LOU was required to reflect the new intent. Mr. Erik­
sen testified that he told Mr. Peter that while Respondent lo­
cally agreed with the request, corporate approval would have to
be obtained.
Mr. Peter drafted a new letter of understanding. In para-
graph 8, Mr. Peter’s draft contained the following sentence:
“In recognition of the fact that further negotiations regarding
new compensation, working conditions and benefit plans for
affected employees are necessary and advisable, [emphasis
added] it is agreed that the parties shall continue to meet and
confer over these [benefits] in order that such mutually agreed
upon matters shall be ready to be put in place when systems
constraints have been removed.” Mr. Eriksen wanted the word­
ing of that sentence changed. He testified that because Re­
spondent had a contract with SCPEA, the affected employees
had to be given the SCPEA benefits and compensation package
once the systems constraints were removed. He said that the
term “advisable” was substituted for “necessary and advisable”
at his behest because Respondent considered that while it was
required that affected employees be ultimately covered by the
SCPEA agreement, it was not required that the parties negotiate
for the Total Compensation and Benefit Package. Mr. Eriksen
testified that he told Mr. Peter, “Don, you’ve got to realize,
we’re going to try to get this [corporate approval of the Total
Compensation and Benefit Package] done. But I . . . have no
guarantees that . . . we’re going to be able to get the corporate
office to agree to bifurcate the unit like this and give the BNA
engineers the new Boeing compensation package. And so
‘necessary,’ you know, we need to take ‘necessary’ out of
there, and make it ‘advisable.’”
On January 22, Respondent and the Union signed the revised
Letter of Understanding (LOU). The preamble stated that the
purpose of the LOU was to guarantee certain terms and condi­
tions for the affected employees whose work the Union was
certified to represent. The LOU provided in part:
1. Introduction
The Company has informed the SCPEA that system
constraints resulting from the merging of McDonnell Doug­
las, Boeing and BNA prevent immediate conversion of af­
fected employees to the compensation, working conditions
and benefit plans in place at the facility to which they are
moving.
Paragraph 2 provided that affected employees would con­
tinue to be eligible for BNA benefits under the terms of BNA
benefit plans until such time as Respondent was prepared to
implement changes to the plans. At that time, the Union was to
be “notified and further meetings shall be held to negotiate new
benefit plans for affected employees. Benefits include, but are
not limited to, health insurance, dental insurance, employee
retirement income plans, employee savings plans, layoff bene­
fits, life insurance and supplemental accident insurance.”
Paragraph 3 provided that employees would continue to be
compensated under the BNA compensation systems until such
time as Respondent was prepared to implement changes to the
plans. At that time, the Union was to be “notified and further
meetings shall be held to negotiate compensation programs for
affected employees.”
Paragraph 4 provided that for the duration of the LOU, af­
fected employees will continue to work under the working con­
ditions established by BNA, including standard workweek,
work shifts and leaves of absence.
Paragraph 5 provided that the holiday schedule of the
SCPEA agreement would be followed.
7. Representation by the SCPEA
Affected employees transferring from heritage BNA fa­
cilities into the SCPEA Bargaining Unit and performing work
that is represented by the SCPEA shall be represented by
SCPEA. These affected employees shall be represented un­
der the current SCPEA Agreement and have all rights and
privileges guaranteed under that agreement with the limited
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
exceptions as noted in paragraphs 2, 3 and 4 of this Letter of
Understanding. Notwithstanding the provisions of the
SCPEA agreement, affected employees shall not be treated
less favorably in any respect than non-represented “heritage”
BNA employees transferred to the Long Beach or Huntington
Beach facilities. 3
Examples of rights and privileges guaranteed by this para-
graph are the right to resolve individual employee grievances
under the grievance and arbitration provisions of the SCPEA
Agreement, the right to consult with an Association Represen­
tative regarding such grievances, the right to freely join the
Association, pay dues through payroll deduction and become
an active member of the Association.
8. Duration of this Letter of Understanding
The Company and the Association agree that this Letter
of Understanding shall remain in force and effect until the
systems constraints resulting from the merging of McDonnell
Douglas, Boeing and BNA have been removed and until the
Company and the Association reach agreement on the new
compensation, working conditions and benefit plans to be ap­
plied to the affected employees. In recognition of the fact that
further negotiations regarding new compensation, working
conditions and benefit plans for affected employees are advis­
able, it is agreed that the parties shall continue to meet and
confer over these salaries and terms and conditions of em­
ployment in order that such mutually agreed upon matters
shall be ready to be put in place when systems constraints
have been removed.
Mr. Peter testified that the intent of the LOU was twofold:
first, to allow the affected employees to maintain their existing
benefits while system constraints were being worked out since
Respondent did not have the systems capacity to place the af­
fected employees into SCPEA contractual benefit plans; and
second, to negotiate new benefits when system constraints were
lifted. Mr. Peter testified that the Union contemplated that once
the system constraints were lifted, the parties would then nego­
tiate a benefits plan for the affected employees: “Either total
compensation or SCPEA or somewhere in the middle. I don’t
know. I mean, if you look at historically what happened, we
negotiated some piecemeal items. And it just depended on our
needs and the Company needs, as to where we would end up
. . . I mean, everything, at least in my mind, was negotiable.”
According to Mr. Peter, but for the system constraints, Respon­
dent “would have had a good case . . . for transitioning initially
into SCPEA benefits,” but since the company couldn’t immedi­
ately do so, in exchange for granting Respondent a transition
period, the Union was to have a say in what the benefits for
affected employees would be. Mr. Peter did not, however,
testify to any such discussion with any representative of Re­
spondent. Mr. Peter agreed, essentially, that there was no dis­
cussion over any plans or possible benefit variations other than
the Total Compensation and Benefit Plan and the SCPEA plan:
3 Mr. Eriksen credibly testified that this sentence referred to the pe­
riod during which system constraints existed, and represented Respon­
dent’s guarantee that if it changed benefits for the unrepresented BNA
employees during the period, it would provide the same benefits for the
affected employees.
Mr. Michaels: And was any proposal made at that
time, other than get them the total compensation plan?
Mr. Peter: We never—at the point that this was
drafted and agreed to, Mr. Eriksen knew what the Union’s
preference was, what the members’—affected members’
preference was. He knew what local management’s pref­
erence was. But it was negotiable. I mean, we knew that
it was negotiable. And he knew that it was negotiable.
. . . .
Mr. Michaels: [Affected employees] wanted the total
compensation plan. [Mr. Eriksen understood that, is that
correct?
Mr. Peter: He understood that that’s what our prefer­
ence was. But I wouldn’t characterize it as a proposal.
Mr. Michaels: Whether you characterize that as a pro­
posal or not, was anything else that you would character­
ize as a proposal made?
Mr. Peter: Other than transitioning eventually to total
comp, I would say no. We didn’t put forward any other
proposal.
When asked if he had discussed with Mr. Eriksen the state­
ment in paragraph 2 of the LOU that “further meetings shall be
held to negotiate new benefit plans for affected employees,”
Mr. Peter testified, “I would say no. Because the—I mean, the
. . . sentence clearly says that . . . the company and the Union
shall meet and negotiate new benefit plans . . . the Company
never suggested that that language be revised.” Mr. Peter testi­
fied he was aware that Mr. Eriksen did not believe Respondent
had an obligation to negotiate with the Union over the Total
Compensation and Benefit Plan but that Respondent was will­
ing to do so.4
Shortly after the LOU was signed, Doug Potter (Mr. Potter)
replaced Mr. Peter as union president.
Respondent’s local management submitted the Union’s re-
quest for the Total Compensation and Benefit Plan to corporate
office and pursued discussions with corporate management
over the next nine months. Of concern to Respondent’s corpo­
rate management were pending negotiations with the Seattle
Professional Engineering Association (SPEA) whose contract
expired in 2000, benefits for unrepresented employees, and
future contract negotiations with SCPEA for a successor
agreement to the one due to expire in March 2001.5 Corporate
managers noted that granting the Total Compensation and
Benefits Plan to the affected employees would result in a bifur­
cation of the SCPEA unit for compensation and benefits pur­
poses, which they thought inadvisable.
4 Mr. Peter’s testimony was sometimes vague and not entirely re­
sponsive. Under cross-examination it was nearly equivocal. He would
not give a direct answer to the twice-asked question of what the parties
anticipated doing if Respondent did not agree to grant affected employ­
ees the Total Compensation and Benefit Plan, but only repeated that
“the intent was to reach an agreement.” I credit Mr. Eriksen’s test i­
mony where it conflicts with that of Mr. Peter.
5 Pursuant to a stipulation of the parties received post-hearing, it is
noted that Respondent and the Union negotiated the terms of a new
collective-bargaining agreement effective March 5, 2001, which was
ratified by Union membership on July 13, 2001.
BOEING CO. 761
Sometime in mid-1999, Respondent notified the Union that
the system constraints would be removed by January 1, 2000.
In October, Respondent’s corporate office rejected the pro-
posed application of the Total Compensation and Benefits plan
to the affected employees, and on October 5, Mr. Eriksen so
informed Mr. Potter. Mr. Potter asked for written confirmation.
Mr. Eriksen, by letter dated October 6, wrote in pertinent part
as follows:
The Company has carefully considered the option of negotiat­
ing an agreement with SCPEA to grant some or all of the
post-merger Boeing non represented employee benefit plans
to the pre-merger BNA employees currently and prospec­
tively represented by SCPEA; however, we have decided that
the best course of action for now is to place these employees
in the contractually agreed upon benefits plans currently being
offered to all other SCPEA represented employees. The same
consideration and conclusion was made and applies to all
other Company compensation programs and working condi­
tions.
We would like to meet Friday, October 8, 1999 to discuss our
decision further.
Mr. Potter told Mr. Eriksen the Union could not meet on Oc­
tober 8, and faxed him a letter dated October 8, which stated, in
part:
[The] LOU clearly and unambiguously states that no
changes will be made to the wages, hours and conditions
of employment of the [BNA] employees who have, or will
in the future, transfer to locations and job classifications
represented by the Association without first negotiating
such changes. The company’s unilateral “decision” in this
matter is clearly unacceptable.
. . . .
As a result, the Association hereby demands that the
company live up to its commitments to negotiate any
changes for the .. . BNA employees prior to any such
changes being implemented.
According to Mr. Potter, the purpose of his October 8 letter
was not to request negotiations about affected employee benefit
plans but to formalize his complaint that Respondent, through
the October 6 letter, said they were not going to negotiate. The
Union also filed the instant charge on October 8.
Upon receipt of the letter, Mr. Eriksen telephoned Mr. Potter
and explained that Respondent was not refusing to negotiate,
but that they weren’t willing to negotiate an agreement on the
Union’s proposal to grant the Total Compensation and Benefit
Plan to the affected employees. The parties arranged to discuss
the matter at a meeting already scheduled for October 15 to
discuss a new patent benefit for SCPEA unit employees.
At the October 15 meeting, Mr. Eriksen and William Hart-
man, Respondent’s in-house labor attorney (Mr. Hartman) ex­
plained Respondent’s reasons for rejecting the Union’s pro­
posal to give the Total Compensation and Benefit Plan to the
affected employees. The Union raised a concern about affected
employees being moved into the SCPEA pension plan without
being given credit for years worked for vesting purposes. Mr.
Eriksen said Respondent would take care of that. During dis­
cussion regarding the Total Compensation and Benefit Plan,
Mr. Potter pointed out that Respondent had taken one position
and the Union had taken another, and they could not “seem to
come to any agreement.” Mr. Hartman and Mr. Eriksen re-
called that Mr. Potter said, in effect, that there was nothing
more to discuss about the Total Compensation and Benefit
Plan. Mr. Potter testified that he might have said there was
nothing left for the parties to talk about.6
According to Mr. Eriksen, Respondent considered there was
nothing more to be done: “[W]e tried and we couldn’t get it
done. We needed to put [the affected employees] into the
SCPEA contractual package.” Mr. Eriksen told the Union that
if there was something Respondent had not yet considered, they
would be willing to consider it, but that they had made their
decision. Mr. Potter testified that although Mr. Eriksen said
Respondent wanted to sit down and negotiate with the Union,
Mr. Potter believed things had moved beyond a point where he
thought the parties could negotiate. According to Mr. Potter, at
this time, there was no proposal the Union wanted to ask
Respondent to consider. The Union never offered any benefit
proposal for the affected employees other than the Total Com­
pensation and Benefit Plan.
Following the October 15 meeting, Mr. Eriksen authorized
Respondent to distribute open enrollment information for the
SCPEA benefits plan to the affected employees.7 Mr. Eriksen
also notified upper management by email of October 15 that
Mr. Potter had “acknowledged that we had bargained to im­
passe over the issue of what benefits and compensation pack-
ages should be offered to [the affected employees]. On Octo­
ber 20, the charge herein was served on Respondent.
Learning of Mr. Eriksen’s email message, Mr. Potter, by let­
ter dated October 28, wrote to Mr. Eriksen, in part, as follows:
This e-mail erroneously stated that SCPEA has acknowl­
edged impasse regarding the requirement (per LOU dated
1/22/99) to negotiate benefits changes for affected BNA repre­
sented employees.
SCPEA’s position is that the Company is obligated to live up
to its commitments as stated in the January 22nd Letter of Un­
derstanding. This position remains unchanged.
Upon receiving this letter, Mr. Eriksen telephoned Mr. Potter
on November 1 and told him that he and Mr. Hartman believed
that the parties had bargained to an impasse on October 15.
Mr. Eriksen told Mr. Potter, “But, look, if you think we’re not
at impasse and if you think there’s some more to talk about,
let’s get together and talk about it. If you have some other
ideas, let’s talk about it.”
Mr. Potter answered, “Well, it’s in the hands of the lawyers
now. I’ll have to get back with you on that.”
Mr. Eriksen said, “Well, we’ve got two months before this
thing is implemented. There’s plenty of time . . . to agree on
something and get it implemented by 2001, by January 1. So,
6 Mr. Potter appeared sincere and forthright in testifying, but his re-
call was not impressive. He frequently recalled additional information
or modified his answers upon additional questioning. Where his testi­
mony conflicts with that of Mr. Eriksen, I credit Mr. Eriksen.
7 Open enrollment began November 1, but the change of affected
employees to the SCPEA benefits plan did not take effect until January
1, 2000.
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
let’s get together and talk about it.” Mr. Potter said he would
have to get back to Mr. Eriksen. During the next two months,
in conversations with Mr. Potter, Mr. Eriksen on two or three
occasions raised the issue of negotiations over the affected
employees’ benefit plan, pointing out that Mr. Potter had never
gotten back to him and suggesting the parties meet. Mr. Potter
consistently replied that the lawyers and Board were looking at
it, and the Union was not yet prepared to meet. Mr. Potter testi­
fied that he refused to meet with Mr. Eriksen because the Union
had filed an unfair labor practice. Mr. Potter testified: “[T]he
Company, in my mind, had clearly given us an answer of where
they stood on [the issue of the Total Compensation and Benefit
Plan]. And, at this point, I felt it should be in front of a third
party because of behavior and some of the correspondence
that's been passed around.” According to Mr. Potter, he
wanted to leave it up to the Board. Mr. Potter never agreed to a
negotiating meeting, the Union never made a demand to bar-
gain about the proposed transfer of affected employees into the
SCPEA benefit plan, and the parties never met again after Oc­
tober 15 regarding the benefit plan issue.
On January 1, 2000, the affected employees were transferred
from the BNA benefit plan to the SCPEA plan. The SCPEA
plan differed materially from the BNA and SCPEA plans.8
B. Discussion and Findings
The parties frame the pivotal issues herein as whether Re­
spondent and the Union reached impasse in bargaining over
compensation and benefits plans for the affected employees
and, concomitantly, did or did not unilaterally apply the
SCPEA compensation and benefits plans to those employees. I
believe the parties have missed the fundamental issue: whether
Respondent had any duty to bargain over these matters.
Section 8(d) of the Act provides that “where there is in effect
a collective-bargaining contract covering employees in an in­
dustry affecting commerce, the duty to bargain collectively
shall also mean that no party to such contract shall terminate or
modify such contract…” except under certain specified proce­
dural conditions precedent to the contract’s expiration. The
Board notes that while Section 8(d) prevents termination or
modification of existing collective-bargaining agreements, “it is
always possible to amend a contract in mid-term by mutual
voluntary consent.” Communications Workers (New York Tele­
phone Co.), 186 NLRB 625, 628 (1970). If mid-term bargain­
ing takes place pursuant to a reopener provision in the contract,
such bargaining proceeds through the same course bargaining
takes when no contract is in effect, i.e. with attendant good-
faith bargaining obligations and resort to actions normally al­
lowed so long as the procedural requirements of Section 8(d)
are met. Speedrack, Inc. 293 NLRB 1054, 1055 (1989). In the
absence of a reopener provision in the contract, parties to a
collective-bargaining agreement are under no obligation to
bargain during mid-term of the agreement. Kohler Co., 292
NLRB 716 (1989). That is true even if the parties have en-
8 Differences in the health plans included higher premiums, no pre­
ferred provider option, no coverage for employees working less than 32
hours per week, and absence of no-cost catastrophic, dental or vision
coverage. Other benefit differences included vacation days, adoption
assistance, and layoff provisions.
gaged in discussions or bargaining of midterm modification
subjects. Thus, the Board has held that “Section 8(d) protects a
party to a collective-bargaining agreement from incurring a
bargaining obligation on proposing a midterm contract modifi­
cation when the contract does not contain any reopener lan­
guage.” Connecticut Light & Power Co., 271 NLRB 766
(1984), overruling Equitable Life Insurance Co., 133 NLRB
1675 (1961). In Connecticut Light & Power, the Board found
that the employer did not violate the Act when it refused to
bargain over a midterm contract modification which it had pro-
posed, stating:
Section 8(d) does not state that parties may not propose mid-
term modifications. Nor does it state that a contract cannot be
changed after the parties sign it. Rather, it states that no party
to a collective-bargaining agreement may be compelled either
to discuss contract changes or to agree to them. The section
does not qualify the right to refuse to discuss or agree to con-
tract changes, and it makes no distinction between the parties.
Thus, nothing in this section suggests a party making a midterm
proposal should be treated differently from a party receiving
such a proposal. As the recipient of a midterm proposal clearly
has no duty to discuss or agree to it, we find the party propos­
ing a midterm modification does not incur a bargaining obliga­
tion by tendering its proposal. . . . Thus, in the absence of re-
opener language, we find Section 8(d) protects every party to a
collective-bargaining agreement from involuntarily incurring
any additional bargaining obligations for the duration of the
agreement. Id. at 767.
Here, in anticipation of the transfer of unrepresented engi­
neers (affected employees) into a much larger unit of SCPEA-
represented engineers, Respondent recognized SCPEA as the
bargaining representative of the affected employees and as­
sumed SCPEA’s collective-bargaining agreement as covering
them. As Counsel for the General Counsel notes in her brief,
upon recognition of the Union as the representative of the af­
fected employees, “both Respondent and SCPEA assumed that
the wages, hours, and other terms and conditions of employ­
ment of the engineers to be added to the unit would be gov­
erned by the collective-bargaining agreement between Respon­
dent and SCPEA after they were transferred.” Having agreed
to be bound by the SCPEA agreement, Respondent was fore-
closed from repudiating it during its term. E.S.P. Concrete
Pumping, Inc., 327 NLRB 711, 712 (1999).9
At about that same time, Respondent notified SCPEA of its
technological inability immediately to effect the placement of
the affected employees into the compensation and benefit plans
of the SCPEA agreement. Respondent asked the Union to per­
mit affected employees to remain in their existing plans until
system constraints could be removed. By this request, Respon­
dent proposed a midterm modification of the SCPEA agree­
ment to which Respondent had been legally bound since its
assumption and to which it was legally bound for its full term.
9 The Union does not argue that Respondent assumed only a portion
of the SCPEA agreement, i.e., provisions other than the compensation
and benefit plans, and, in any event, the Board is disinclined to find that
a successor adopted part, but not all of a collective-bargaining agree­
ment. Pesco Products, Inc., 331 NLRB 1546 (2000).
BOEING CO. 763
The Union agreed to the modification. When the Union there-
after requested that the Total Compensation and Benefit Plan be
applied to the affected employees, the Union sought an addi­
tional midterm modification of the SCPEA agreement. Al­
though not legally obligated to do so, Respondent agreed to
consider the change. Respondent did not, however, incur a
bargaining obligation by doing so. Id.; Yale University, 334
NLRB 990 (2001).
Even assuming, as the General Counsel argues, that the LOU
constituted an agreement by Respondent to bargain over the
terms of a compensation and benefit plan different from those
contained in the SCPEA agreement, that does not, in my opin­
ion, establish a general bargaining obligation. The parties al­
ready had an existing agreement, and there is no evidence that
it contained a valid reopener clause. The ability of the parties
to amend the agreement, midterm, by mutual voluntary consent
does not confer the full panoply of establish bargaining duties
just because the parties agree in writing to discuss midterm
modifications. See Sheet Metal Workers (Schebler Co.) 294
NLRB 766 (1989) enf. in pert. part 905 F.2d 417 (D.C. Cir.
1990); CWA (New York Telephone), 186 NLRB 625 (1970).
Here, Respondent agreed to consider granting the Total Com­
pensation and Benefit Plan to the affected employees, and it did
consider that issue. Respondent thereby met whatever bargain­
ing obligation, if any, it may have had with regard to midterm
contract reopening. As the court stated in enforcing Standard
Fittings Co., 285 NLRB 285 (1987): “Absent an express re-
opener, neither the union nor the employer ever waives the
statutory right to refuse to consider, or to continue to consider,
changes in the collective-bargaining agreement while the
agreement is still in force.” 845 F.2d 1311, 1314 (5th Cir.
1988). Further, there is no tacit agreement to reopen the
SPCEA agreement and thereby incur a bargaining obligation
simply by Respondent’s consideration of the Total Compensa­
tion and Benefit Plan for affected employees. See Herman
Brothers, Inc., 273 NLRB 124 fn. 1 (1984).
The General Counsel also urges that by the terms of the LOU
Respondent committed itself to bargaining over the terms of a
compensation and benefit plan different from either the SCPEA
plan or the Total Compensation and Benefit Plan if the latter
were rejected by Respondent’s corporate office. The LOU does
not unambiguously show any such agreement, and the parole
evidence offered supports a conclusion that Mr. Eriksen in-
tended, and Mr. Peter understood his intent to be, that if the
Total Compensation and Benefit Plan were not acceptable to
Respondent’s corporate office, the SCPEA plan would be ap­
plied to affected employees.10
As set forth above, I have concluded that Respondent had no
obligation to bargain with the Union over the terms of a com­
pensation and benefit plan different from that incorporated in
the SCPEA agreement. But even assuming that Respondent in
signing the LOU created a full bargaining obligation to negoti-
10 Where an agreement is ambiguous, it is appropriate to resort to pa-
role evidence or other extrinsic evidence to determine its meaning.
Sansla, Inc., 323 NLRB 107, 109 (1997); Operating Engineers Local 3
(Joy Engineering), 313 NLRB 25 (1993). I find sufficient ambiguity in
the LOU to justify consideration of evidence regarding intent.
ate with the Union over a customized compensation and benefit
plan, I find that Respondent met its obligation. The Union had
a nearly three-month advance notice that Respondent had re­
jected the Total Compensation and Benefit Plan for the affected
employees. Not only did the Union fail to request that Respon­
dent bargain about variations of that plan or about the terms of
a new and different plan, it positively refused to meet and bar-
gain with Respondent. A Union has an obligation to seize the
bargaining opportunity afforded by advance notice of a pro-
posed employment condition change or risk waiver of its statu­
tory right. Jim Walter Resources, 289 NLRB 1441 (1988). A
union does not preserve its statutory bargaining right by declin­
ing to meet and negotiate while seeking to assert a bargaining
right by protesting an employer’s conduct or by filing an unfair
labor practice charge, as the Union did here. See Bell Atlantic,
332 NLRB 1592, 1598 (2000); American Diamond Tool, 306
NLRB 570 (1992); Associated Milk Producers, 300 NLRB 561
(1990); Citizens Bank of Willmar, 245 NLRB 389 (1979).
There is no evidence that Respondent’s conduct relieved the
Union of its obligation to pursue the bargaining opportunities
repeatedly offered by Respondent. While the union may have
thought Respondent’s mind was made up and that further bar-
gaining was futile because Respondent seemed set on applying
the SCPEA plans, it is not unlawful for an employer to present
its position as a fully developed plan. Even informing a union
that its position would not change does not relieve a union from
its responsibility to request bargaining. Alltel Kentucky, Inc.,
326 NLRB 1350 (1998); Haddon Craftsmen, 300 NLRB 789
(1990). Moreover, there is no evidence that Respondent might
not have been amenable to alterations in the SCPEA plans. The
Union’s conduct suggests that its sole objective was to obtain
the Total Compensation and Benefit Plan for the affected em­
ployees and that it had no real intent to negotiate any other
plan. Its adamant insistence that matters be worked out through
a “third party” or the Board creates a strong inference that the
Union wanted to obtain through Board processes what it had no
power or ability to obtain through traditional bargaining. Such
constitutes a waiver of any statutory bargaining rights that
might have existed in this situation.11
Accordingly, I find the General Counsel failed to meet his
burden of proving that Respondent violated Sections 8(a)(5)
and (1) of the Act by failing to bargain in good faith with the
Union regarding compensation and benefit plans to cover the
affected employees. Therefore, I recommend the complaint be
dismissed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The complaint is dismissed.
11 In light of my findings herein, I find it unnecessary to consider the
issue of whether the parties reached impasse at the October 15 meeting.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom­
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.