The Boeing Co.

National Labor Relations Board - Board Decisions

Jun 27, 1974

212 N.L.R.B. 116 (N.L.R.B. 1974)

116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Boeing Company and Seattle Professional Engi-
neering Employees Association . Case 19-CA-6616
June 27, 1974
DECISION AND ORDER
CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On February 27, 1974, Administrative Law Judge
Russell L. Stevens issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Charging Party filed exceptions and supporting briefs,
and the Respondent filed cross-exception and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and finds merit in certain of Respondent's cross-ex-
ceptions. Accordingly, the Board adopts the rulings of
the Administrative Law Judge, and those findings and
conclusions consistent with this decision. It further
adopts the Administrative Law Judge's recommended
Order dismissing the complaint, but solely for the
reasons given below.
This case involves the action taken by Respondent
to correct administrative errors in the assignment of
job titles to some 54 employees engaged in computer
programming or computer systems analysis for busi-
ness applications. As the Administrative Law Judge
found, computer work for business applications does
not require professional skills and has always been
distinct from computer work for scientific or engi-
neering application which does require professional
skills. These 54 employees were mistakenly given titles
which indicated that they performed professional en-
gineering work, and upon discovery of that mistake
Respondent changed their job titles to those which
accurately reflect the work they perform. It is this
change in job titles and the resultant removal from
contract coverage that the General Counsel and the
Charging Party (SPEEA) contend was a unilateral
alteration in the scope of the SPEEA unit in deroga-
tion of the bargaining obligation imposed by Section
8(a)(5) of the Act. We find no merit in this contention.
The SPEEA was originally certified in 1946 as the
representative of a unit of professional engineers.'
i Although the unit has not always been confined to professionals, as
defined in Sec 2(12) of the Act, it has been confined to employees performing
either professional engineering functions or subprofessional work which was
considered entry-level professional, i e , jobs to which graduate engineers
Since 1956, the SPEEA has advocated the limitation
of the unit to professionals as defined in Section 2(12)
of the Act; and the most recent collective-bargaining
agreement describes the unit as limited to employees
classified by the Company as engineers, with the clas-
sification to be based upon the definition of "profes-
sional" used in the Act.
In the above circumstances, we find that represen-
tative rights have never been accorded to the SPEEA
for employees performing computer work for business
applications either by certification or agreement of
the parties. It is undisputed that the some 200 other
employees performing computer work for business
applications are not included in the SPEEA unit.
Since there is no real dispute over the fact that these
54 employees have been and are now performing non-
unit work, we find that no alteration in the scope of
the SPEEA unit has occurred by virtue of their reclas-
sification, and that, in reclassifying the employees as
it did, Respondent's action was not in derogation of
any bargaining obligations imposed upon it by Sec-
tion 8(a)(5) of the Act. We shall therefore dismiss the
complaint.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This mat-
ter was heard at Seattle, Washington on December 12 and
13, 1973. The complaint, issued October 30, 1973, is based
upon a charge filed August 31, 1973, by Seattle Professional
Engineering Employees Association, hereinafter referred to
as SPEEA. The complaint alleges that the Boeing Company,
hereinafter referred to as Respondent, violated Section
8(a)(5) and 8(a)(1) of the National Labor Relations Act,
hereinafter referred to as the Act.
were initially assigned and from which they progressed to professional level
jobs
i We also agree with the Administrative Law Judge that the Respondent's
right to correct misclassifications appears to be affirmed by the collective
agreement and by the practice of the parties thereunder, to the extent that
such action is consistent, as here, with the clearly intended definitional scope
of the bargaining unit We do not reach the question, however, as to the
propriety of other types of unilateral reclassification, and we have therefore
rested our decision on somewhat narrower grounds than did the Administra-
tive Law Judge
212 NLRB No. 22
THE BOEING COMPANY 117
Issues
The ultimate issue is whether Respondent violated Sec-
tion 8(a)(5) of the Act when it unilaterally reclassified 54
employees from its professional payroll to its technical pay-
roll without a change of work duties, with a result being that
said 54 employees were removed from the professional bar-
gaining unit involved herein (SPEEA).
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses,' and to argue orally. Briefs, which have been
carefully considered, were filed on behalf of the General
Counsel, the Charging Party, and the Respondent.
Upon the entire record,2 and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is engaged in numerous business operations
in the State of Washington and elsewhere, including the
business of its wholly owned corporate subsidiary, Boeing
Computer Services, Inc., hereinafter referred to as BCS.
During calendar year 1972, a representative period, Re-
spondent sold and delivered in excess of $50,000 worth of
goods and services to customers outside the State of Wash-
ington, and in the same period Respondent received more
than $50,000 worth of goods and services directly from
outside the State of Washington.
II THE LABOR ORGANIZATION INVOLVED
Seattle Professional Engineering Employees Association
is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
1. The Company-Respondent Company is a large cor-
poration, having started as an airplane manufacturer but
having diversified over the years. Most of its manufacturing
activities being highly specialized and technical in nature,
Respondent employs many persons with scientific and engi-
neering backgrounds and experience.
As Respondent grew and expanded its operations, it
changed its business, scientific, and engineering systems as
needs became evident. One important and constantly ex-
panding requirement has been that of mechanized data pro-
cessing, equipment for which frequently has been changed,
enlarged, and improved over the years. Respondent's first
use of data equipment was that of accounting tabulating
machines, installed in 1938.
The General Counsel's case was submitted by stipulation. The only wit-
nesses at the hearing were those called by Respondent
2 On February 1, 1974, counsel for Respondent filed a motion to correct
187 transcript errors. The motion hereby is granted, there having been no
opposition filed. It is noted that the transcript is not of good quality
By 1948, the finance department (Boeing corporate head-
quarters), under whose supervision the tabulating machines
were operated, began to receive requests from the engineer-
ing department for use of the tabulating equipment in "list-
ing" assistance. Such work for the engineering department
being on demand, it disrupted accounting and other busi-
ness schedules. As a result, some employees and the ma-
chines they operated were removed from the finance
department and set up in a separate area for exclusive use
by the engineering department. That basic separation of
data machines and data processing employees between
business and engineering functions has continued to the
present.
Respondent historically has had three divisions: corpo-
rate headquarters, commercial airplane division, and aero-
space division. Prior to and until 1955, corporate
headquarters and the aerospace division relied upon a
punched-card system for processing data; the commercial
airplane division used equipment of the other two divisions
for processing. In 1955, corporate headquarters and the
aerospace division acquired early computer system equip-
ment and, in 1958, the commercial airplane division also
acquired such equipment. Thereafter, all three divisions re-
lied upon computer machines, with expanded and improved
systems being installed as more sophisticated computers
became available on the market.
2. Employees-From its first use of data processing ma-
chines, in about 1951, the aerospace division physically se-
parated employees and machines devoted to business
systems from those devoted to engineering systems. Com-
mencing in 1958, the commercial airplane division similarly
separated its employees and machines into two groups,
those devoted to business systems and those to engineering
systems. The separation was a logical one, necessitated in
both divisions by the disparate nature of the work involved.
Business systems essentially is a clerical function; engineer-
ing systems essentially is a professional function.
During the early years of data processing, business sys-
tems equipment was simple and easy to operate. Skilled
technicians were not required, with operators generally
being regular office and clerical employees. No special edu-
cation or preemployment training or experience was re-
quired. Equipment gradually became more complex and
difficult to operate and, in 1966, Respondent created three
job classifications on the technical payroll. The higher level
employees engaged in business computing systems were as-
signed to those job classifications, and since that time it has
been Respondent's policy to assign to the technical payroll
high-level employees doing business systems computing.
On January 1, 1971, Respondent organized Boeing Com-
puter Services, Inc. (BCS) to do all computing work re-
quired by the three divisions of Respondent. Personnel and
equipment, at that time detailed for computer work in the
three divisions, were transferred to BCS. In addition to
being assigned all the computer work of Respondent as a
customer, BCS also undertook computer work for other
customers, on a commercial basis. BCS has continued to the
present as a general computer service organization.
BCS has two divisions. One is assigned work involving
data processing for business systems, and one is assigned
work involving data processing for engineering systems.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This has been the historical division of computer work at
Respondent, as outlined above. When employees and
equipment were transferred from Respondent to BCS, they
were assigned to the same work, and same use, they had at
Respondent before transfer. Employee transferees included
the 54 involved in this controversy. All 54 of them worked,
before transfer, in business systems, and all are in business
systems at BCS.
3. SPEEA-This professional unit was organized for en-
gineers in 1946. An election was held in 1946 and SPEEA
was certified as the collective-bargaining representative of
the engineer-employees of Respondent. At time of certifica-
tion of SPEEA, the unit included only professional engi-
neers and some employees performing subprofessional jobs
considered entry level, to which graduate engineers initially
were assigned and from which they progressed to profes-
sional level jobs. The unit has never included all of
Respondent's professional engineering employees, nor has
it included professionals other than engineers . After organi-
zation the unit did include, however, a few nonprofessionals
as more fully explained in this decision (some of which have
been the basis for this controversy).
Since about 1956 SPEEA has advocated use of the Act's
definition of the term "professional," and has advocated
limitation of the unit to professionals so described. Re-
spondent initially resisted such efforts because some non-
professionals (nonexempt) were in the unit . However, all
nonexempt 3 Jobs were eliminated by provisions of the cur-
rent agreement between SPEEA and the Company. The
unit now is limited to professional engineering employees
who are exempt from the overtime requirements of the Fair
Labor Standard Act.
Respondent's relationship with SPEEA has been a friend-
ly one. There is no hint in the record of any union animus.
It is found that such animus does not exist, and was not,
wholly or partially, a motive for making the reclassifications
involved herein.
As of December 1, 1973, SPEEA had 9,626 members.
4. Collective-bargaining agreements-The first agreement
executed by SPEEA and Respondent was dated December
4, 1946. Agreements have been effective at all times since
that date, with the most recent one having been dated Octo-
ber 19, 1972, to be effective December 16, 1971, through
December 15, 1974.
The first agreement included five categories of "non-ex-
empt classification." They were engineering draftsmen, "A"
and "B," engineering liaison man "B," flight test analyst
"B," and research laboratory analyst "B." The 25 other
categories in the unit were "exempt classifications" (profes-
sionals).
The second agreement, effective July 1, 1947, to July 1,
1948, was longer and more detailed than the first. Section
9 provided, "The Association agrees that there shall be no
interference with Company operations." There was some
enlargement of "non-exempt classifications." The contract
extension to July 1, 1949, included slight modifcations, with
some change in "exempt" and "non-exempt classifica-
tions." The negotiated contract effective July 1, 1949, to
3 This refers to the provisions of the Fair Labor Standards Act relating to
professional exemption from the terms of the Act
July 1, 1951, contained no management rights clause, and
had some slight "exempt" and "non-exempt" modifications.
The same contractual pattern continued from 1951 until
June 16, 1967, with periodic changes of relatively limited
extent and with brief management rights clauses. Appendix
A to each contract was the list of "exempt" and "non-
exempt" categories, with slight changes from year to year.
The contract executed January 30, 1968, effective from
June 16, 1967, through June 15, 1969, was the first to be
lengthy, detailed, and sophisticated. It covered a greatly
expanded number of subjects, but the "Rights of Manage-
ment" provision remained brief and in much the same form
as in earlier contracts. The number of "non-exempt classifi-
cations" was sharply reduced. The definition of "profes-
sional employee" used in the Act was adopted A provision
following, that adoption stated:
This note shall not be construed as affecting the classi-
fications listed in this Appendix A, or the Company's
unilateral right to select and determine the employees
to be included in each such classification.
The contract effective June 16, 1969, through December
15, 1971, essentially was the same as the 1967-69 contract,
again with reduced "non-exempt classifications" and with
the same definition of "professional employee" and the
same note quoted above.
The present contract is effective December 16, 1971,
through December 15, 1974. It also contains the above-
quoted note to the appendix, and the Act's definition of
"professional employee." The "Rights of Management"
provision reads as follows:
Section 2.1 Rights of Management.
2.1.(a) The terms and conditions of this Agreement are
minimum and the Company shall be free to grant more
favorable terms and conditions and to pay salary rates
higher than the salary ranges shown in Appendix A to
any engineering employee.
2.1(b) The management of the Company and the direc-
tion of the work force is vested exclusively in the Com-
pany subject to the terms of this Agreement. Without
limitation, implied or otherwise, all matters not specifi-
cally and expressly covered or treated by the language
of this Agreement may be administered for its duration
by the Company in accordance with such policy or
procedure as the Company from time to time may de-
termine.
B. The Reclassifications
This controversy involves Respondent's reclassification
of 54 employees from the professional payroll (04) to the
technical payroll (06).4 On the date of reclassification, the
Herein referred to as the March 2 reclassification The first reclassifica-
tion of one employee was effective February 16, 1973, 47 others were effec-
tive March 2. 1973, and 6 more were reclassified later under identical
circumstances It was stipulated at the hearing that all 54 should be consid-
THE BOEING COMPANY
54 were included in the SPEEA bargaining unit, which then
numbered 8,884 employees. The 54 were computer pro-
grammers and systems analysts, employed in the business
systems division of BCS. Three of the 54 had been in the
bargaining unit since 1959, and one or more had entered the
unit each year thereafter, except in 1963, when there were
no entries. Twenty-two joined the unit in 1966.
Respondent determined, following a BCSjob audit in late
1971, that the 54 were not properly classified (they were on
Respondent's "04" payroll) as professionals. They were not
then doing, nor had they ever done, professional work for
Respondent while employed in computer work. The reclas-
sifications resulted in change of job title, payroll code num-
ber, and bargaining status. None of the 54 received any
change in work location, pay, immediate supervision, or job
duties. The reclassification result that occasioned the unfair
labor practice charge involved herein was removal of the 54
from the bargaining unit; after reclassification, the 54 no
longer were represented, since they then were in a nonrepre-
sented group.
Notification of intent to reclassify the 54 first was given
to SPEEA (to John Ober, then executive director of SPEEA)
by H. Stuart Birrell, assistant corporate director for labor
relations of Respondent, in a telephone conversation during
February 1973. (Exact date was not determined at hearing).
Ober and Birrell agreed, during that call, that employees
scheduled for reclassificaion would be given the option to
remain in the bargaining unit, if they were professionally
qualified for engineering jobs that were available.
On March 2, 1973, Ober wrote a letter to Birrell and
requested identity information concerning all employees to
be reclassified from the 04 payroll to 06, and from 06 to 04.
The requested information was given in Birrell's letter to
Ober dated April 4, 1973. Ober was advised in the letter that
48 employees were reclassified March 2, 1973, from payroll
number 04 to 06.
Ober scheduled a meeting for March 21, 1973, to be at-
tended by all persons subject to the reclassification, but
none appeared. The record shows no instance wherein any
affected employee objected to reclassification.
C. Contentions of the Parties
The General Counsel contends that the reclassification of
March 2, 1973, was unilateral alteration of the scope of the
bargaining unit, without express or implied agreement of
SPEEA followed by Respondent's refusal to bargain with
SPEEA as the exclusive representative of the appropriate
unit, in violation of Section 8(a)(5) of the Act.
The Charging Party concurs with the General Counsel.
Respondent contends that the collective-bargaining
agreement authorizes Respondent to reclassify individual
employees unilaterally; that historical precedent supports
that authority; that SPEEA was notified of the reclassifica-
tions involved herein, but never objected to them, or re-
quested bargaining about the subject; that SPEEA
acquiesced in the reclassifications or waived any right of
objection it may have had; that the 54 employees were not
ered the same for purposes of this controversy.
119
doing professional work and cannot appropriately be in-
cluded in SPEEA ; and that Respondent has not violated the
Act.
Analysis and Conclusions
A. The Bargaining Unit
On May 22, 1946, in Case 19-R-1664, the National Labor
Relations Board filed a Consent Determination of Repre-
sentative designating SPEEA the exclusive representative
for the unit described as:
All professional engineering employees employed by
the Company who possess an intimate knowledge of
mathematics and physical sciences gained by scientific
or technological education, training or experience and
who apply this knowledge in the planning, designing or
utilization of forces and materials for use in structures,
machines and products, performing services in which
the exercise of individual judgment is a primary factor
in the classifications listed in Appendix A attached
hereto.
Appendix A, as revised by agreement of the parties, shows
the following classifications:
Grade 5: Detail Engineer
Grade 3: Engineer
Grade 1: Major Engineer, Weight Controller-C
Grade B: Lead Engineer, Weight Controller-B
Grade C: Assistant Group Engineer
Above Grade C: Group Engineers, Group Service En-
gineers
Thereafter, and to the present, SPEEA has acted as exclu-
sive representative of the unit, and has executed periodic
agreements with Respondent that have been continuously
effective since December 4, 1946.
The unit now consists solely of professional engineering
employees who are exempt from the overtime requirements
of the Fair Labor Standards Act. The record shows, and it
is found, that the 54 employees involved herein were not at
time of reclassification doing the work of "professional em-
ployees" as that term is defined in the Act and in the con-
tract of the parties. It is further found that none of the 54
objected to reclassification.
The unit as originally established was an appropriate one,
covering only professional engineers. "Purity" of the unit
has not been historically maintained, on two counts. First,
nonprofessionals were included in the unit from 1947 until
1971 (see annual bargaining agreements for full description
of all classifications within the unit). Second, the 54 employ-
ees who were reclassified were not doing professional work
prior to reclassification in 1973. They worked as business
systems computer programmers and systems analysts,
which are technical rather than professional jobs.
It is not clear whether Respondent's answer to the com-
plaint is an admission or denial of appropriateness of the
unit and SPEEA's status as exclusive representative of that
unit. However, it is clear from Respondent's arguments at
hearing and in its brief that it considers the unit inappropri-
ate if the contested 54 are included therein. It further argues
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the subject of appropriateness must be settled before
reaching consideration of any duty to bargain In other
words, according to Respondent, a duty to bargain means
a duty to bargain with an appropriate unit.
General Counsel and the Charging Party argue that,
when the group of 54 was reclassified and removed from the
unit, there was a unilateral alteration of the scope of the unit
by Respondent without sanction of statute, contract, past
practice and conduct, or bargaining. According to this argu-
ment, the 54 constituted a class of workers, since all 54 were
engaged in similar work-business systems computer pro-
gramming and analyzing. The Charging Party states in its
brief, "This is a case of pure refusal to bargain."
It is much too late to argue about the unit as such. Board
certification has been acted upon without challenge, and the
parties have bargained amicably and continuously since
1946. It is found that the unit is appropriate, and that
SPEEA is the exclusive bargaining representative of the
unit .5
B. Duty To Bargain
Respondent argues that, as a result of a BCS job audit
conducted in 1971, it was discovered that 54 employees in
the business systems division erroneously were classified in
job titles within the scope of the SPEEA unit, but their work
was, and always had been, technical rather than profession-
al. It is contended that the 54 "were intermingled with the
employees on the technical payroll and indistinguishable
from them in such things as job functions, responsibility,
experience, initiative, skill and ability, work location, super-
vision, hours, working conditions, and educational back-
ground." It is argued that the work of the 54 did not require
any engineering or scientific knowledge and was not work
which satisfies the definition of "professional" within the
meaning of the Act or the Fair Labor Standards Act.
Upon the basis of that discovery, it is stated, Respondent
determined that the 54 employees were "misclassified," and,
accordingly, reclassified them.
A fundamental inquiry is: absent contractual provisions
that control, and absent past practice and possible acquies-
cence considerations, does the Act require bargaining under
the facts of this case, or is reclassification as here carried out
a function that is inherently one for management's unilater-
al action at its own discretion9
The unit was established by the Board in 1946. Although
it began as a professional unit, a few nonprofessionals be-
came members. Historical acquiescence by Respondent and
SPEEA to inclusion of some nonprofessionals is apparent,
hence there cannot be a challenge at this late date of inclu-
sion of nonprofessionals. The unit was well established and
agreed upon by the parties at all times prior to, and on,
March 2, 1973.
General Counsel and the Charging Party have argued at
length, both orally and in briefs, that the scope of a unit
cannot be changed unilaterally by a company-that there
must be bargaining
Those arguments assume that the problem of the 54 is one
5 Douds v International Longshoremen 's Association [New York Shipping
Asvn ], 241 F 2d 278, 282 (C A 2, 1957)
of unit scope; that the 54 had similar jobs, and that the unit
had been expanded from an originally pure professional
unit to one that included nonprofessionals as a group or
class.
Respondent argues that the 54 individually were in
SPEEA by error, through wrongjob labels, and not by unit
expansion through work relationship.
Intent of the parties concerning the professional nature of
SPEEA, particularly as shown by the current contract and
prior requests by SPEEA for Respondent to "purify" the
unit, are clear. That intent supports the conclusion that the
problem is cast in the mold urged by Respondent Reclassifi-
cation then becomes a problem of individual job titles, not
one of change of unit.
However, regardless of which view of the problem is
adopted, the law is clear that reclassification affecting a
unit , as here, is a subject that must be bargained, either at
contract negotiation time or thereafter if the problem arises
after the contract is executed. The answer to the inquiry
necessarily is in the affirmative.6
Having concluded that the reclassification of employees,
with their consequent removal from the unit, is not an inher-
ent function of management and must be bargained, the
next question is whether the subject was, as a matter of fact,
bargained in this case. If it was not bargained at the time
of contract negotiation, was there bargaining during pen-
dency of the contract, or perhaps waiver of the right to
demand bargaining, or failure following proper notice to
request bargaining?
C. Contractual Provisions
The current contract contains a rights of management
provision quoted above, and a note to appendix A-4, also
quoted above.
The rights of management provision is vague and uncer-
tain. It is brief in form and, for the most part, has remained
in about the same language since 1951. It is of no substantial
assistance in deciding the present controversy.
Of more interest is the note to appendix A-4 If the con-
tract permits Respondent's unilateral reclassification of the
54 employees involved herein, that permission must be
found in the note.
No testimony was given, or evidence adduced at the hear-
ing, concerning negotiation relative to the note. If it was
discussed at bargaining sessions (Ober testified that it was
not), that discussion was not established. It is necessary,
therefore, to examine the contract.
As discussed elsewhere in this Decision, Respondent's
employees frequently are transferred to other locations, as-
signed to other jobs, promoted, demoted, and otherwise
subjected to changes and reclassifications. Such changes
and reclassifications are on an accelerated basis in The
Boeing Company, because of sharp changes in total em-
ployment and economic conditions affecting large custom-
ers buying aircraft and services. Nothing in contractual
provisions indicates any limitation, or bargaining necessity,
relative to such changes and reclassifcations. Indicative of
provisions relating to this activity are those found in sec-
6 Steere Broadcasting Corp , 158 NLRB 487 (1966)
THE BOEING COMPANY
tions 5.2(e)(1), 6.2(a), 6.2(b), 6.4(e), 8.4(e), 8.4(g), and 8.6(g)
of the current contract, covering many employment
changes.
The note to appendix A-4 quotes the definition of profes-
sional employees given in the Act, and provides that the
definition will be considered by Respondent in classifying
individuals pursuant to the recognition provisions of the
contract (article I thereof). Classifications of professions are
listed in the appendix. The note then states that it shall not
be construed as affecting "the Comany's unilateral right to
select and determine the employees in each such classifica-
tion." 7 (Emphasis supplied.) General Counsel admits that
the quoted portion of the note authorizes Respondent's uni-
lateral classifications of professionals, but argues that it
applies only to initial classifications; Respondent argues
that it applies as well to reclassifications, including those
involved herein.
There is nothing in the contract to indicate or show that
the words "select and determine" were intended to have the
narrow meaning advocated by the General Counsel. In ab-
sence of contractual definitions, the commonly accepted
definitions of Webster's Dictionary are,adopted. They are:
select: to choose, pick out
1. Chosen in preference to another or others; picked
out, especially for excellence or some special quality;
picked.
determine: to bound, limit, prescribe; . . . to set
bounds
1. to set limits to; bound; define.
2. to settle conclusively or beforehand; decide; re-
solve.
3. to reach a decision about after thought and inves-
tigation; decide upon.
It is clear that the words "select and determine," as those
words are defined by Webster and used in the contract, are
broad enough to cover reclassifications such as those under-
taken in this case, in addition to initial classifications.
Counsel for the General Counsel argues that Respondent
has waited too long to reclassify-that the original "mis-
takes" or "misclassifications" must stand because they oc-
curred such a long time ago, without prompt action to
correct them. Apparently the theory is that the original
(professional) unit scope was changed and acquiesced in by
the parties upon inclusion of the nonprofessionals, and that
reclassification of nonprofessionals is forever forbidden
thereafter, because the unit scope would be affected. That
argument is not adopted. In the first place, there is no
contractual prohibition of reclassification, and no time limit
is set in the contract for reclassifying, or to "select and
determine." Second, the BCS job audit was conducted, and
action taken thereupon, within a reasonable time after BCS
was organized. Third, specific authority to classify certainly
must imply authority to reclassify, particularly to correct
errors and conform with work change requirements. If such
were not the case, Respondent easily could avoid the re-
striction and nullify the entire contractual provision, simply
by not making doubtful or potentially erroneous classifica-
tions in the first place. The right to "select and determine"
7 This definition of "professional employee," and the note now discussed
first appeared in the contract effective June 16, 1967, through June 15, 1969.
121
is given unilaterally to the Company and the Act's definition
of "professional employee" need only be considered-it is
not mandatory.
Finally, the entire appendix A-4 in the present contract,
and its predecessor provision of similar import, obviously
vest in Respondent the authority and responsibility for
maintaining the professional status of the unit, through clas-
sifications. There is nothing in the contract that indicates
Respondent cannot correct misclassifications when it finds
that an error has been made in its own earlier classifications.
Further, to require the parties to bargain for every change
of classification, with hundreds of them being involved in
each change of employment totals, would be to negate ap-
pendix A-4 and to impose an intolerable burden upon the
parties.
It is found that Respondent did bargain with SPEEA, as
required by the Act, and that the contract of the parties
specifically authorizes reclassifications as herein made.
Section 8(a)(5) of the Act imposes upon an employer the
obligation to bargain collectively with representatives of his
employees, and Section 8(d) defines the term "bargain col-
lectively" as imposing the obligation
... to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an
agreement, or any question ansing thereunder... .
The Board stated in International Shoe Company, 151
NLRB 693:
The duty to bargain under the Act imposed on
unions and employers alike, is a continuing one, and
the parties are at all times obligated to discuss any
bargainable subject upon request unless they have re-
duced [their] agreement on that subject to writing
Here, the parties have reduced their agreement on the
subject to writing, and having concluded the matter, there
is no requirement to bargain thereafter on the same subject.
Section 8(d) of the Act provides, in part, that the duty to
bargain collectively
... shall not be construed as requiring either party to
discuss or agree to any modification of the terms and
conditions contained in a contract for a fixed period,
if such modification is to become effective before such
terms and conditions can be reopened under the provi-
sions of the contract.
The General Counsel during hearing relied almost exclu-
sively upon Salt River Valley Water Users' Association, 204
NLRB No. 26, for his contention that unilateral reclassifica-
8 See also Tide Water Associated Oil Company, 85 NLRB 1096; The Jacobs
Manufacturing Company, 94 NLRB 1214
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion without bargaining, as involved herein, is an unfair
labor practice. However, that case differs in several impor-
tant respects from this case, and does not support the Gen-
eral Counsel's theory. First, there was a long history of
disagreement during negotiations between the parties in
Salt River concerning the matter of reclassification. Second,
the subject was bargained to impasse. Third, the company
thereupon instituted its previously announced plan, and re-
classified the employees involved. Fourth, respondent made
the reclassifications only after good-faith bargaining to im-
passe over the specific issue. It was found that respondent
in Salt River violated the Act by proposing to impasse that
the persons occupying the old classification be excluded
from the unit and by refusing to recognize the union as their
bargaining representative.
In the instant case, the record does not show the nature
of negotiation discussions on the subject of reclassifications.
Only the contract is in the record, and it states quite clearly
that Respondent unilaterally makes classifications pursuant
to recognition provisions of the contract, and that in making
classifications Respondent will consider the definition of
"professional employee" given in the contract. There is no
question concerning bargaining to impasse during negotia-
tion to exclude the 54 from the unit. The parties settled their
differences on this subject, if they had any, and embodied
that settlement in their contract.
D. Past Practice
It is found that past practice of the parties is consistent
with authority given by the contract to Respondent.
Respondent has a long history of sharp fluctuations in its
employment. As requirements of the military establishment
and commercial airlines change, and as aircraft models are
altered, precipitous drops and steep rises of employment
are experienced. Constant reclassification of employees is
one result of such fluctuations. Professional engineers have
not escaped reclassifications and changes; evidence shows
that, from 1968 to October 1973, 1,841 employees unilater-
ally were moved into SPEEA by Respondent, and 1,322
were moved out. Those moves were to and from hourly,
nonexempt salaried, technical, and management jobs. The
exact number is not established, but the evidence is not
disputed that a substantial number of those transfers result-
ed from correcting misclassifications. Since at least 1969,
Respondent has given SPEEA monthly reports which listed
all transfers out of its unit and which showed, for those
having dues deducted, the payroll to which they were trans-
ferred. It is not disputed that SPEEA requested the reports,
received them, and used them.
H. Stuart Birrell, assistant corporate director for labor
relations for Respondent, testified to many instances where-
in employees were reclassified to job titles outside the
SPEEA unit, without a change of duties, as in the instant
case. One instance involved 47 scientists reclassified in Jan-
uary 1967 from professional engineering job titles to the
technical payroll. General Counsel introduced SPEEA's
written agreement with the reclassification, and argued that
the letter did not constitute a waiver of SPEEA's right to
object to future reclassifications Possibly that is so, but
neither does the letter indicate SPEEA's belief that it had
a right to bargain the issue , which it could waive. In any
event, the date of the letter, January 20, 1967, is prior to the
first inclusion of the note to appendix A of the contract
between the parties effective June 16, 1967, authorizing uni-
lateral company reclassification.
Birrell also testified to 26 such reclassifications in June
1972, from professional engineering titles to management
payroll titles, without change of job duties. Birrell testified
that SPEEA was notified, but did not object to or question
the reclassifications. Birrell also testified that many similar
individual reclassifications had been made (not group clas-
sifications), and that SPEEA often made inquiries but never
objected to, or questioned, the Company's authority to
make the changes. Birrell 's testimony was not contradicted,
and is credited
The testimony of Mr. Ober, executive director of SPEEA
until June 1973, is particularly revealing. He stated in re-
sponse to the question "Did you ever protest those kinds of
reclassifications by the company [note : involving move-
ment off SPEEA roles to correct misclassifications]? "No,
because in most instances it meant that the man retained his
job rather than being laid off." This testimony, which is
credited, clearly shows that SPEEA knew in advance of
reclassifications , acquiesced in them, and "in most instanc-
es" welcomed them.
Taken as a whole, the evidence shows: (a) From 1946
until probably about mid-1973, the relationship between
SPEEA and Respondent was cordial, casual , and frequently
informal . (2) Until about mid-1973, Respondent usually,
but possibly not always, notified SPEEA of impending re-
classifications , of which there have been many, involving
change of job title and removal from SPEEA but not involv-
ing change of job duties. (3) Until the present controversy,
SPEEA has not objected to such reclassifications, nor has
.at ever asked to bargain about them. (4) About mid-1973, the
relationship between the parties began to change and be-
come more formal.
Based upon past practice as shown by the evidence, it is
clear that the intent of the parties, through their contract,
has been that Respondent has the unilateral right to classify
and, when necessary, to reclassify. It is also clear that Re-
spondent in the past, including this present instance, has
made every effort to keep SPEEA advised of its intentions
relative to reclassifications It is not disputed that Respond-
ent gave SPEEA notice, well in advance, of proposed reclas-
sification of the 54 employees involved herein, and that
SPEEA made no objection, nor did it request bargaining on
the subject.
E. Waiver of Acquiescence
The evidence shows that SPEEA has been well aware of
Respondent's frequent reclassifications into and out of
SPEEA in the past, including reclassifications similar to
those involved herein, involving no change of job duties.
BCS was organized in 1971, and late that year Mr. Birrell
of Respondent notified Mr. Ober of SPEEA that a job audit
would be made which could result in reclassifications.
SPEEA did not protest or request bargaining, but Mr. Ober
renewed a request he had made earlier, relative to other
classifications of a similar nature, that the employees in-
THE BOEING COMPANY 123
volved be given the option of accepting the reclassification
Respondent was offering, or of being reassigned to engi-
neering work commensurate with their titles. Mr. Birrell
agreed to that request "as we had in the past." Ober made
no objection to the proposed reclassifications, and asked for
a name list of the people.
The same sort of option was requested, and given, in the
June 1972 reclassifications.
In February 1973, Respondent notified SPEEA of the
plan to reclassify the 54 now involved, and SPEEA request-
ed that it be kept advised of developments-no protest or
request to bargain was made. On March 2, 1973, SPEEA
asked that Respondent provide it with the name, social
security number, organization, skill code, and description of
all employees to be reclassified. On April 4, 1973, the re-
quested information was given to SPEEA and SPEEA was
notified that the reclassification had been effected March 2,
1973. At no time thereafter did SPEEA protest reclassifica-
tions, nor did it object to any actions taken by Respondent.
More important, there was no request by SPEEA to bargain
the issue. SPEEA clearly acquiesced in Respondent's ac-
tions, and that acquiescence constitutes implied acknow-
ledgment by SPEEA that Respondent reclassified
according to its contractual authority.
The first time Respondent had any knowledge of SPEEA
dissatisfaction with reclassifications was in August 1973
when, during a meeting between Respondent and SPEEA
officials, on matters not related to reclassifications, a
SPEEA representative indicated in a casual and informal
manner that the possibility of filing an unfair practice
charge was being considered because of the 48 (54) reclassi-
fications. The charge was filed August 31, 1973.
ther of those instances, as well as in no instance on prior
reclassification, did SPEEA expressly or impliedly object or
request that the subject be bargained. Further, there still
had not been any request by SPEEA to bargain, even in the
face of what appears to be sudden dissatisfaction with past
practice, right up to the time of the unfair labor charges filed
herein, in August 1973. It is possible, so far is known from
the record, that Respondent would, upon request, still bar-
gain, even at this late date. Action taken by Respondent was
not irreversible-it was relatively minor, involving only
change of payroll designation, (Effect on the unit was mi-
nuscule). However, there is no way to know Respondent's
position, since no request has been made by SPEEA to
bargain the issue, in which event Respondent cannot be
found to have refused to bargain .9
CONCLUSIONS OF LAW
1. Respondent, The Boeing Company, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. SPEEA is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent did not, through alleged acts, violate Sec-
tion 8(a)(5) as alleged in the complaint.
4. Respondent did not in any manner interfere with, re-
strain, or coerce its employees in the exercise of rights guar-
anteed in Section 7 of the Act, and did not thereby engage
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
F. Request To Bargain
Based upon the foregoing, it cannot be concluded that
there was a refusal to bargain in violation of Section 8(a)(5)
of the Act. There was no duty on the part of the Company
to bargain again, on a subject that already had been embod-
ied in a formal agreement. However, even if SPEEA's theo-
ry is accepted for sake of argument, and it is assumed that
there was a duty to bargain, that duty would apse upon
request, after notification given to SPEEA by Respondent,
of Respondent's intention to reclassify. Notice was given on
two occasions; a general notice'of intent to reclassify some
employees, given late in 1971, and specific notice given in
February 1973 prior to the March reclassifications. In nei-
ORDER10
It having been found and concluded that Respondent,
The Boeing Company, has not engaged in unfair labor prac-
tices, the complaint herein is dismissed in its entirety.
9 Holiday Inn Central, 181 NLRB 997, 1000 (1970); American Buslines, Inc.,
164 NLRB 1055, 1055-56 (1967); N. L R.B. v Alva Allen Industries, 369 F.2d.
310 (C.A. 8, 1966), U.S. Lingerie Corp., 170 NLRB 77 (1968).
10 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and in objections thereto shall be deemed
waived for all purposes