The Boeing Co.

National Labor Relations Board - Board Decisions

Nov 1, 1974

214 N.L.R.B. 541 (N.L.R.B. 1974)

THE BOEING COMPANY
The Boeing Company and International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 12-CA-5141
November 1, 1974
DECISION AND ORDER
On January 21, 1974, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in
this proceeding. Thereafter, the General Counsel, the
Charging Party, and the Respondent filed exceptions
and supporting briefs, the Respondent filed an an-
swering brief, and the National Aeronautics and
Space Administration filed an amicus curiae brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, as
modified herein, and to adopt his recommended Or-
der.'
The Administrative Law Judge rejected the con-
tention of the General Counsel and the Charging
Party that Respondent had a "perfectly clear" plan
to retain a substantial majority of the TWA incum-
bents so as to create an obligation on the part of
Respondent, as set forth by the Supreme Court in
Burns,3 to consult with the Union before it set its
initial terms and conditions of employment. In so
concluding, the Administrative Law Judge relied on
a number of factors.
Although we agree with his conclusion, we rely
solely on the reasons set forth in the majority opinion
in Spruce Up Corporation, 209 NLRB 194 (1974), as
applied hereafter to the facts of this case. Thus it is
undisputed, and our dissenting colleagues do not
deny, that even if it can be said that Respondent
"intended" to hire all or substantially all of the in-
cumbents, Respondent's "intentions" were from the
outset tied to the lower rates and benefits of the
Boeing-IAM contract. In these circumstances, as we
said in Spruce Up:
When an employer who has not yet commenced
'Certain inadvertent errors in the Decision of the Administrative Law
Judge have been noted and corrected
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Drv Wall Products, Inc. 91
NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the
record and find no basis for reversing his findings
2 The Charging Party's request for oral argument is hereby denied as the
record, exceptions, and briefs adequately present the positions and argu-
ments of the parties
} N L R B v Burns International Security Services, Inc, 406 U S 272
(1972)
541
operations announces new terms prior to or si-
multaneously with his invitation to the previous
work force to accept employment under those
terms, we do not think it can fairly be said that
the new employer "plans to retain all of the em-
ployees in the unit," as that phrase was intended
by the Supreme Court. The possibility that the
old employees may not enter into an employ-
ment relationship with the new employer is a
real one . . . .°
Accordingly, for these reasons we shall order that
the complaint be dismissed in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and orders
that the complaint be, and it hereby is, dismissed in
its entirety.
MEMBERS FANNING AND PENELLO, dissenting:
Contrary to our colleagues, for the reasons set
forth in our separate dissents in Spruce Up Corpora-
tion, supra, and herein, we find that Boeing is a suc-
cessor employer to Trans World Airlines (TWA)
Spruce Up Corporation, supra, I I par of Board opinion
Member Kennedy concurred in this finding of the majority in Spruce Up
Corporation He notes that the dissenters in this case have misinterpreted the
recent holding of the Supreme Court in Howard Johnson Company v Detroit
Local Joint Evecutive Board Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, 94 S Ct 2236, 2244 (1974) The Court there
stated
This continuity of identity in the business enterprise necessarily in-
cludes. we think, a substantial continuity in the identity of the work force
across the change in ownership The Wiley Court seemingly recognized
this, as it found the requisite continuity present there in reliance on the
"wholesale transfer" of Interscience employees to Wiley Ibid This view
is reflected in the emphasis most of the lower courts have placed on
whether the successor employer hires a majority of the predecessor's em-
ployees in determining the legal obligations of the successor in § 301
suits under Wiley [Footnote omitted I This interpretation of Wiley is
consistent also with the Court's concern with affording protection to
those employees who are in fact retained in "the transition from one
corporate organization to another" from sudden changes in the terms
and conditions of their employment, and with its belief that industrial
strife would be avoided if these employees' claims were resolved by
arbitration rather than by "the relative strength of the contending
forces " [Emphasis supplied ]
Thus Member Kennedy believes that the dissenters misread the Supreme
Court's decision in Howard Johnson when they suggest that successorship
does not turn on whether the successor's employees constitute more than
half or less than half of the predecessor's employees In his view there can
be no substantial continuity in the identity of the work force when fewer
than 50 percent of the predecessors employees are hired by the new em-
ployer
The dissenters' concern that an incoming employer can control his status
under the Act ignores the holding of the Supreme Court in both Burns and
Howard Johnson that the former employees have no legal right to continued
employment with the new employer who has the right not to hire any of the
former employees, if it so desires
214 NLRB No. 32
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning the employment of the Installation Sup-
port Services (ISS) employees at Kennedy Space
Center (KSC) and was therefore obligated to recog-
nize and bargain with International Association of
Machinists and Aerospace Workers, AFL-CIO
(IAMAW), as the representative of said employees
on that basis from the time of its takeover on April 1,
1971. We further find that Boeing had a clear plan to
hire all or substantially all of its required work force
from ISS incumbent employees, publicly announced
same, and implemented that plan to the extent possi-
ble. Therefore, under the Burns decision, supra, we
conclude that Boeing had an immediate bargaining
obligation to recognize IAMAW and to consult and
negotiate with IAMAW upon sole selection of
Boeing on November 23, 1970, to negotiate with the
National Aeronautics and Space Agency (NASA) for
a contract award before setting wages and conditions
of the involved employees.
Concerning whether Boeing succeeded to TWA's
bargaining obligation, the Administrative Law Judge
properly concluded that NASA awarded Boeing the
same ISS operation as administered by the predeces-
sor contractor, TWA, with only minor variations in
terms of bargaining unit employees. Thus, he found
that there was a continuation of the same relations
with NASA, the customer, and of essentially the
same services, plant machinery, equipment, and job
functions. In addition, he found that there were no
material differences between Boeing's method of per-
forming the ISS contract and TWA's method and
that there is no evidence that the duties of Boeing's
supervisors are different from those who worked for
TWA. However, despite all the foregoing positive
factors pointing to the "substantial continuity of
identity in the business operation before and after a
change" in employer,' the Administrative Law Judge
failed to find that Boeing was a successor to TWA
because a majority of its ISS unit employees at the
takeover on April 1, 1971, did not consist of TWA
incumbents, and he found this failure of a majority
could not be attributed to unlawful unilateral reduc-
tion of wages by Boeing. While as set forth hereafter,
we disagree with the latter finding, without regard to
how one determines the pretakeover bargaining is-
sue, we do not for the reasons articulated in the sepa-
rate dissents in Spruce Up, supra, find the lack of
majority to be fatally deficient in establishing the
successorship of Boeing.
In Spruce Up we agreed:
Successorship does not depend on the employ-
ment of a majority of the predecessor's employ-
5 John Wiley & Sons v Livingston , 376 U S 543, 551 (1964)
ees, but on whether a legally significant portion
of the successor's employment force consists of
employees previously employed in the bargain-
ing unit. In making that determination, the ques-
tion of whether employees of the predecessor ac-
tually predominate over other employees can
hardly be the acid test of successorship, al-
though it may be an important factor in de-
termining whether the successor employer has a
basis for doubting the Union's majority status.6
The fallacy of insistence upon majority population
is fundamental. Whether or not an employer has the
status of a successor cannot turn in any part on its
own decision to populate its work force with more
than half or less than half of the predecessor's em-
ployees. Otherwise an incoming employer can con-
trol too readily its own status under our Act. It can
so severely undertake the existing employment terms
that, should one less than a majority of the
predecessor's employees wish employment with it, by
that act alone the employer can guarantee denial of
the protection which it is the objective of the succes-
sorship doctrine to confer.'
Applying these principles to the facts herein, it is
clear that as of April 1, 1971, when Boeing took over
the performance of the ISS work, it had 970 employ-
ees on its payroll within this class, divided among 380
TWA incumbents, 138 Boeing employees (transfer-
red, recalled from layoff, and former), 450 outside
employees, and 2 employees unidentified as to
source. In this breakdown, the TWA incumbents
comprised more than 39 percent of Boeing's employ-
ees. In our view these figures amply support a finding
that the TWA employees constituted a "legally sig-
nificant portion of the successor's employment
force" and a "stable nucleus" of Boeing's work force.
Accordingly, we conclude, given all of the other
aforementioned positive factors, that Boeing is a suc-
cessor to TWA, Boeing succeeded to TWA's bargain-
ing obligation on and after April 1, 1971, and Boeing
violated Section 8(a)(5) by failing and refusing to rec-
ognize and bargain with the Union pursuant to its
demand of March 12, 1974.
In Burns, supra, the Court held that in general a
successor is free to set the initial conditions of em-
ployment upon which rehiring is conditioned without
6Spruce Up Corporation, supra p 34 at par 10 of Member Fanning's
separate opinion subscribed to by Member Penello at In 48. Polytech. In-
corporated, 186 NLRB 984 (1970), enfd 469 F 2d 1226 (C A 8, 1972)
Howard Johnson Company, supra, wherein the Court referred to "a sub-
stantial continuity in the identity of the work force" (Emphasis supplied )
Members Fanning and Penello disagree with Member Kennedy that succes-
sor status depends on whether a majority of the predecessor's employees are
retained by the successor See their separate dissents in Spruce Up Corpora-
tion, supra, In 21 in United Maintenance & Manufacturing Co, Inc, 214
NLRB No 31. Polytech, Incorporated, vupra
THE BOEING COMPANY
bargaining with the union, since prior to hiring a sub-
stantial proportion of his predecessor's employees it
will not be clear that he has a duty to bargain with
the union. However, the Court also said that the duty
to bargain may precede the formal rehiring of em-
ployees where "it is perfectly clear that the new em-
ployer plans to retain all of the employees in the unit
.. " 8 The Court then went on to say:
In other situations, however, it may not be clear
until the successor employer has hired his full
complement of employees that he had a duty to
bargain with a union, since it will not be evident
until then that the bargaining representative rep-
resents a majority of the employees in the unit
9
Concerning the question of whether Boeing was
obligated to bargain with the Union over the fixing
of its initial terms and conditions of employment, it
seems to us entirely clear that Boeing did plan to
retain all or substantially all of the former TWA em-
ployees. Thus, the request for proposal issued by
NASA required offerors to submit a basic staffing
proposal, explaining in depth how the offeror would
obtain competent personnel, including a statement of
its plans regarding the employment of incumbent
workers. In response, Boeing stated that "In order to
maintain continuity of support approximately 86 per-
cent of the proposed organization will be staffed by
qualified incumbents ." This representation that it
would retain about 86 percent of the incumbent work
force was repeated throughout its response. Boeing
explained that its staffing proposal "recognizes the
desirability of retaining incumbent contractor per-
sonnel to provide continuity of functional support."
It further stated that its "analysis indicates that effec-
tiveness and economy can be achieved by retaining
experienced and qualified incumbent personnel."
Boeing's constant theme in its written proposal
was the acknowledgement of need for continuity and
Boeing's intended use of incumbent contractor per-
sonnel. Thus, Boeing proposed a detailed 62-page
baseline phase-in plan. One of tie criteria established
in writing the plan was "Boeing can and will staff the
majority of the total work force from the incumbent
contractor." Boeing also averred that, "After incum-
bent employees have been reviewed and those select-
ed given an opportunity for employment with
Boeing , qualified local hires will be hired to fill the
remaining vacancies." (Emphasis supplied.) In addi-
tion, Boeing's industrial relations chief at the KSC,
e Burns, supra at 294-295
/bid
543
John A. Sutherland, admitted that with respect to the
ISS work performed by the TWA incumbent em-
ployees represented by IAMAW, Boeing expected to
hire a work force of about 1,000 employees, of whom
it proposed to recruit "All we could get" from the
TWA incumbents, no less than 86 percent and "clos-
er to 100 percent . . . ." Detailed, selective proce-
dures for incumbents were devised and presented
which gave prominence to selection of incumbents.
As to existing collective-bargaining agreements,
Boeing expressed its disbelief that the IAMAW-
TWA agreement "can be legally applied" to Boeing.
The IAMAW-Boeing agreement , it stated , "could
cover the people performing the work."
Boeing began an immediate implementation of its
plan to use all or substantially all incumbents by ex-
tensive public announcements . Boeing told the press;
and newspapers in circulation in Brevard County,
Florida, wherein the KSC is located, reported that
Boeing would hire a "majority" or a "large percent-
age" of TWA incumbents. Boeing was quoted as say-
ing that "we want to upset the community as little as
possible." Indeed, Boeing assured IAMAW, during
their first meeting in late November 1970 and then at
their second meeting on December 4, 1970, that it
would retain most of the TWA incumbents in em-
ployment. As admitted by Clifford W. McGee, Jr.,
Boeing's employment supervisor during the Phase-in
of the ISS project, he told IAMAW "that we desired
to employ in essence most of our required employees
from the ranks of the incumbent contractor." At a
meeting on November 30, 1970, Boeing informed
TWA that "most of them [TWA employees] would
be hired." As TWA Director of Industrial Relations
Keil recalled, Boeing stated it "expected to hire be-
tween 80 to 90 percent" of the TWA incumbents.
Moreover as Harry Orlander, TWA's staff vice presi-
dent, operations and services, stated, Boeing indi-
cated it "hoped to hire the majority . . . . [it] desired
to hire as many TWA people as possible." In addi-
tion, on December 1, 1970, TWA informed its em-
ployees that "Boeing is interested in hiring the major-
ity of TWA/KSC employees."
Boeing further implemented its plan to use the in-
cumbents by putting into effect initial procedures de-
signed to hire the majority of the incumbents. Thus,
by December 4, 1970, Boeing and TWA agreed upon
a detailed procedure by which TWA incumbents de-
sirous of employment with Boeing would apply for a
job. Even when hampered by the effective strike ac-
tion of Local 773, Boeing did all it could do in seek-
ing to obtain the incumbents . Boeing conducted ear-
ly interviews of incumbents. Boeing offered jobs ear-
ly to incumbents. Boeing substituted job offers to
incumbents at the last moment in place of offers al-
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ready made up for "others," at least for required
skilled leadmen and journeymen incumbents, who
were , of course , essential to run the operation effi-
ciently. Reviewing fully, as we have just done, what
Boeing was required to plan for, what Boeing pro-
posed , what Boeing publicly announced , and what
Boeing did, we can only conclude that Boeing plan-
ned to retain all or substantially all of the
incumbent ' s work force within the meaning of the
aforementioned Burns language.
Our colleagues in the majority in effect would
transform an incoming employer 's "plans to retain"
his predecessor 's employees , which is the Burns test,
into "a commitment to hire or an actual advance hir-
ing of such employees," as found by the Administra-
tive Law Judge. The latter meaning is wholly differ-
ent and is destructive of the "plan to retain" stan-
dard . A "commitment to hire or an actual advance
hiring" is an overt entry into a contract of employ-
ment between the employer and employee with noth-
ing left to consummate the engagement except re-
porting for work at a future fixed time . It is, albeit
informal , an offer and acceptance of employment,
and hence a completed contract.
A "plan to retain," on the contrary, necessarily
precedes any "commitment to hire or an actual ad-
vance hiring . . . ." A plan to retain simply signifies
that the incoming employer proposes to look to the
incumbent employees as the primary source of his
work force . That plan is the stage preliminary to the
employer's approach to the incumbent. It precedes,
and is independent of, any ensuing commitment to
hire or actual advance hiring . Once the subsequent
commitment or actual advance hiring is made, it is
no longer a plan ; it is a consummated transaction. It
is therefore self-contradictory to equate the plan with
the commitment . The former precedes the latter; it is
not coterminous with it.
Our colleagues agree with us that Burns does not
condition the obligation to consult initially with a
union before fixing employment terms on a showing
of the succeeding employer's intention to retain all
unit employees. Instead, an employer has a duty of
initial consultation when it becomes evident that he,
in fact, will retain a sufficient number of his
predecessor 's employees so that the incumbent bar-
gaining representative will continue as the 9(a) ma-
jority representative of the successor 's employees.
Support for this view is found in the Court's quot-
ed Burns language. The Court followed its "plans to
take all" language in the very next sentence of its
opinion by stating that "in other situations , howev-
er," it may not be clear whether a succeeding em-
ployer must bargain until he has hired his full work
complement. When the two sentences are read to-
gether, it appears that the Court has compared the
situation where the representative status of the union
is clear with the situation where the union 's represen-
tative status and the consequent employer bargaining
obligation is not evident until after the full comple-
ment is hired. The "plans to retain all" sentence is
therefore to be viewed as referring to the obvious,
rather than to the sole situation in which the
employer's bargaining obligation arises. Equally ap-
parent, from the Court's language, a successor
employer's initial bargaining obligation can be said
to arise also in a situation where, as here, he plans to
retain sufficient unit employees to continue the
union 's majority status , and that, consequently, a
planned "substantial retention" gives rise to the bar-
gaining obligation.
Our separate dissents in Spruce Up, supra, dealt
with the central fallacy of our colleagues' analysis,
i.e., as Boeing's plan to retain the incumbents was
"simultaneously and inextricably linked in Boeing's
proposals" with the lower terms it proposed to offer
them, the existence of the plan did not in the lan-
guage of Burns impose upon Boeing the obligation to
"initially consult with the employees' bargaining rep-
resentative before . . . . [the incoming employer] fix-
es terms." In response , it was said then , and we reit-
erate now
The Court [in Burns] there said nothing about a
conditional intent to hire. The majority are at-
tempting to revise substantially what the Court
said, for their view would, in effect, abrogate the
exception, as the only case when a violation
would occur under their test would be the un-
likely situation where a successor says he will
continue the employees under the exact terms
and conditions as existed before the takeover. If
he says that he "plans" to alter the status quo in
any way, while at the same time indicating a
desire to retain the old employees, they would
find this amounts to a conditional intent to hire.
I cannot accept that the Supreme Court would
announce a rule of law that is so restrictive as to
amount to a nullity.10
The majority's contrary construction of this
aspect of the Burns decision leads to the anoma-
lous, if not absurd, result that a bargaining obli-
gation over the establishment of the successor's
initial terms and conditions of employment aris-
es when the successor plans to retain the former
employees at the terms their union had already
established through collective bargaining with
10 Spruce Up , supra at par 4 of Member Penello's separate opinion
THE BOEING COMPANY
the predecessor employer but not when he plans
to retain them at terms different from those pre-
viously established. The majority would bring to
bear "the mediatory influence of negotiation"
where there is no controversy, but deny its ap-
propriate use where there is controversy. They
thus turn the Act on its head, and to no useful
end. II
Therefore, we conclude that Boeing's unilateral
fixing of ISS wage conditions at a wage rate substan-
tially below those rates which prevailed under TWA
was in violation of its duty to bargain and was un-
lawful under Section 8(a)(5). We also find for the
reasons below that TWA employees acted concerted-
ly and under the guidance of Local 773, starting in
December 1970, in refraining from sending employ-
ment applications to Boeing because of the unilater-
ally reduced wage rates. These employees became
unfair labor practice strikers of Boeing protesting
Boeing's unilateral action.
Thus, TWA employees acted concertedly and un-
der the guidance of Local 773, starting in December
1970, and refrained from sending employment appli-
cations to Boeing because of the unilaterally reduced
wage rates. Local 773 first determined what TWA
proposed to do. It then went to Washington, D.C., to
ascertain what was happening; and while there, alert-
ed IAMAW of TWA's ISS employees' basic interest
in preserving their wage rates. It visited NASA. It
learned that Boeing was proposing not to pick up any
part of its contract. It formulated demands which
included a position of preserving its rates These de-
mands became known to Boeing. Local 773 ac-
quiesced initially to a few applications being sent to
Boeing through Keil's office with cover letter suffi-
cient to preserve its position on rates; and sufficient
to give Boeing the message that Boeing was going to
have to consider the position of Local 773 if Boeing
wanted cooperation in the orderly transition of in-
cumbents. Thereafter, Local 773 guided employees in
withholding applications; brought pressure on
Boeing thereby; and consequently restricted inter-
views. It publicly demonstrated. Local 773 pursued
its position until it got a meeting with Boeing and
IAMAW on February 19, 1971, at which time the
strikers through the IAMAW unconditionally re-
quested reinstatement and offered to begin work for
Boeing and to submit whatever forms were required.
The Administrative Law Judge relates there was
confusion over a number of items and that it is spe-
culative as to why incumbent employees reacted and
did not submit applications. Such an approach at
best mixes varying reasons for support of a local
union's position with the fact that a local union ac-
545
tion was taken. It makes no difference that the Inter-
national did not authorize the strike action. The issue
is whether Local 773 called for said action and in-
cumbent employees in responding engaged in pro-
tected concerted activity. The withholding of appli-
cations was the recommended action. The Local an-
nounced it in meetings. Members were so notified by
mail in a letter under signature of the local union
president. It is enough if the local union told incum-
bent employees not to turn in applications; or even
as later that the local preferred they not do so. The
acts taken were believed by the local at the time as
acts taken in the best interest of the membership and
the employees by following such directed actions
agreed.
Accordingly, Boeing was under an immediate obli-
gation to reinstate the strikers as of the time Boeing
began operations on April 1, 1971, replacing, if nec-
essary, employees already hired. Boeing's failure to
accept them was itself violative of Section 8(a)(1) and
(3) of the Act. Had Boeing not unlawfully refused to
reinstate these strikers clearly the majority, if not ful-
ly 85.6 percent, of the work force would have been
obtained from the eventual 944 who applied. Fur-
thermore, employees who were entitled to reinstate-
ment but not reinstated should be reinstated and
made whole for any loss of pay suffered or status
lost
In conclusion, for the reasons stated above, we
would find Respondent violated Section 8(a)(5), (3),
and (1) of the Act, and would order Respondent to
take appropriate action to remedy these violations.
11 Ibid at par 14 of Member Fanning's separate opinion
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge From
July 24 through 27, 1973, this proceeding was heard before
me in Tampa, Florida. The charge was filed and served on
April 1, 1971, and the complaint thereon was issued by the
General Counsel on May 10, 1973 Alleged are certain vio-
lations of Section 8 (a)(1), (3), and (5) of the Act, more
specifically defined below. Comprehensive main and au-
thorized reply briefs I were filed by the General Counsel,
Respondent, and Charging Party; and by special leave, a
brief amicus curiae was submitted by the National Aero-
nautics and Space Administration, herein called NASA.
Upon the entire record,' and from my observation of the
Received October 1. 1973
2 At the instant hearing, the parties stipulated to the authenticity and
admission into evidence of various documents and exhibits, including tran-
scripts of depositions and appended exhibits taken in another proceeding
Continued
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses who testified before me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT; JURISDICTION
The Boeing Company, herein called the Respondent or
Boeing, with its principal office and place of business in
Seattle, Washington, is generally engaged in the manufac-
ture of aircraft and aerospace equipment. In Brevard
County, Florida, at the Kennedy Space Center, herein
called KSC, Respondent provides test support manage-
ment, plant engineering and maintenance, and other serv-
ices pursuant to a contract with NASA effective from April
1, 1971. The latter operations are particularly involved in
this proceeding. During the year preceding issuance of the
complaint, Respondent received goods and materials di-
rectly in interstate commerce at its KSC facility valued in
excess of $50,000. I find that Respondent is engaged in
commerce within the meaning of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, hereinafter called the Union or the
IAM, is a labor organization within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings; the Issues Broadly Defined
In essence, the complaint alleges:
Par. 5: All employees at KSC performing installation
support services, herein called ISS, constitute an appropri-
ate bargaining unit.
Par. 6: From March 9, 1964, to March 31, 1971, Trans
World Airlines, herein called TWA, performed the ISS op-
eration pursuant to contract with NASA.
Par. 7: Since February 1964, and continuing to date, the
IAM has been the exclusive bargaining representative of
the employees in the appropriate unit, above.
Par. 8(a): Since February 1964, TWA has recognized
and had successive contracts with the IAM covering the
employees in the above appropriate unit-the last such
contract containing an effective term from January 28,
1970, through December 31, 1971
Par. 8(b): By letter dated March 19, 1971, Respondent
formally recognized the IAM as the exclusive representa-
tive of the employees in the appropriate unit, above. (This
allegation is more properly to be noted in chronological
context, infra.)
Par. 9(a): On June 30, 1970, NASA issued a request for
before the U S District Court, Orlando (Florida) District However, each of
the parties reserved the right to argue the materiality and relevancy of all
these documents The stipulated material provides the major portion of all
the evidence The complete record thus made comprises the equivalent of
some 7,000 transcript size pages and briefs consist of about 400 pages
3 Certain contentions of Respondent contesting the Board's jurisdiction
are considered and rejected infra, following a description of the underlying
issues
proposal (RFP) from contractors to perform the ISS opera-
tion at KSC commencing April 1, 1971.
Par. 9(b): On August 19, 1970, Respondent submitted its
contract proposal to NASA which stated that 85.6 percent
would come from the complement of TWA employees then
performing the ISS work at KSC.
Par. 9(c): On November 23, 1970, Respondent was des-
ignated as the bidder with whom NASA would negotiate a
contract for such services; and on March 11, 1971, such a
final contract was negotiated and executed between Re-
spondent and NASA to commence performance on April
1, 1971.
Par. 10(a). In meetings on November 24 and December
4, 1970, Respondent notified the IAM that the employees it
would hire to perform the ISS work, including the TWA
incumbents, would receive wages and benefits under the
terms of Respondent's existing national contract with the
IAM, rather than the wages and benefits provided in the
current agreement between the IAM and TWA. The IAM
requested Respondent to bargain about "this imposed less-
er wage scale" (as specified in Respondent's contract pro-
posal to NASA).
Par. 10(b): On December 5, 1970, the IAM notified Re-
spondent that it objected to Respondent's refusal to con-
tinue the employment terms set forth in the TWA-IAM
agreement.
Par. 11: From December 5, 1970, to February 19, 1971, a
majority of the TWA incumbents, in protest of
Respondent's "announced intent to institute unilateral
changes in wages, hours, and working conditions" begin-
ning April 1, 1973, concertedly withheld submission of
their individual applications for employment with Respon-
dent.
Par. 12: Such concerted withholding of applications
"constituted a strike" against Respondent which was
caused and/or prolonged by the unfair labor practices of
Respondent in unlawfully announcing and scheduling uni-
lateral changes in employment conditions affecting the ISS
employees.
Par. 13: On January 15, 1971, the IAM again protested
to Respondent the unilateral action of establishing differ-
ent wages and conditions and requested that Respondent
"hire all TWA incumbents under the terms" of the TWA-
IAM contract.
Par. 14: On February 19, 1971, the IAM notified Re-
spondent that "all" TWA incumbents unconditionally re-
quested continuation of their employment with Respon-
dent beginning April 1, 1971, and would now submit appli-
cations for employment to Respondent.
Par. 15. Despite the foregoing "unconditional offer on
behalf of all" TWA incumbents, Respondent since Febru-
ary 19, 1971, has failed and refused to offer employment
"to a majority of the TWA installation support employees,
the exact identity and number of which employees are not
now known."
Par. 16: Respondent's unlawful announcement and uni-
lateral establishment of lower wages and different condi-
tions of employment for the employees "it would employ
at KSC, caused many TWA installation support employees
(the exact identity and number of whom are not now
known) to fail to submit a timely application for employ-
THE BOEING COMPANY
ment with Respondent, thereby causing less than a majori-
ty of the TWA employees to be employed by Respondent
and causing the majority to suffer loss of their employ-
ment."
Par. 17: Since November 23, 1970, Respondent has been
"the designated successor employer to TWA with regard
to" the ISS operation at KSC, and since April 1, 1971, has
performed the same services for the same customer,
NASA, as did the predecessor contractor, TWA.
Par. 18: Consistent with its prior unilateral announce-
ment, since April 1, 1971, Respondent has "unilaterally im-
posed the terms, wages, hours and working conditions" of
its national agreement with the IAM upon the employees
in the appropriate unit, "and has thereby caused employees
to forfeit employment and/or to suffer loss of wages" by
reason of the lower wage rate schedule of such national
agreement.
In his brief, General Counsel requests the remedies that
Boeing be ordered (a) to reinstate with backpay the TWA
employees it did not hire (about 600), and (b) to recognize
and bargain with the IAM "for the employees performing
the work."
Respondent denied essentially all the foregoing allega-
tions, except those in paragraphs 6, 8(a), 9(a), and 9(c).
Respondent's formal answer to the complaint contains 55
separate defenses, including a lengthy statement of facts;
and at the hearing it filed 6 additional separate defenses.
As already noted, the evidence taken at the hearing con-
sists mainly of voluminous stipulated material, as supple-
mented by further testimony and exhibits 4 In this context,
questions were not raised, nor rulings made, as to the pro-
priety of Respondent's 61 separate defenses. Many of these
defenses merely present extended argument and are not
truly affirmative defenses properly asserted in a pleading;
and many, in my opinion, are frivolous and unduly burden
the record.5 Therefore, the general ruling is made that only
those separate defenses which were specifically brought out
at the hearing or in Respondent's briefs are appropriately
presented for consideration.
Particularly in view of the manner in which this record
was made by the parties and the wide range of arguments
and counterarguments in the briefs, it is important to
maintain a close focus on the actual issues for decision in
this proceeding.
The principal issues presented within the framework of
the complaint fall into two broad segments:
(1) Whether Respondent is a successor-employer and
whether, as such, it breached its obligation to bargain with
the IAM by unilaterally changing the terms and conditions
of employment which existed under the predecessor em-
Respondent's motions to strike, and various objections to testimony
cited in the briefs of the General Counsel and IAM are denied Authenticity
of the evidence has been stipulated, the materiality of its use, particularly in
briefs, involve questions of weight to be assigned Exh 14(H) to Joint Exh
1 was stipulated subject to the parties ' agreement as to its completeness
Joint Exh 3 was reserved for such agreement after the hearing Having been
advised posthearing that agreement was not reached, I have placed Exh
14^H) with the rejected exhibits
Concerning the filing of an answer , see Sec 102 21 of the Board's Rules
and Regulations , and Rules 8(e)(1) and I i of U S District Court Rules of
Civil Procedure
547
ployer, TWA. On these issues pertaining to the successor-
ship doctrine under the Act, the more recent opinion of the
Supreme Court in the Burns case 6 and the Board's subse-
quent applications of this case are of controlling signifi-
cance. The complaint does not allege that Respondent gen-
erally refused to recognize and bargain with the IAM or
that Respondent violated Section 8(a)(5) in respects other
than the alleged unilateral actions. Indeed, paragraph 8(b)
of the complaint specifically asserts that on March 19,
1971, Respondent formally recognized the IAM as the ex-
clusive representative in the contended appropriate unit of
the ISS employees (an allegation validly disputed by Re-
spondent). Respondent advances various arguments that it,
Boeing, is not legally a successor to TWA in the perfor-
mance of the ISS operation at KSC, and that, even assum-
ing such successorship and a duty to bargain, Respondent
fulfilled its bargaining obligation under the Act. Further, it
should be indicated that Respondent adopted a major posi-
tion when it submitted its competing bid to NASA to as-
sume the contractorship for the services-a position to
which it has consistently adhered. Thus, Respondent main-
tains that the incumbent IAM-represented ISS employees
properly constituted an accretion to a unit of employees
performing other services for Respondent at KSC who
were embraced in a preexisting national agreement be-
tween Boeing and the IAM.
(2) Whether certain of the TWA incumbents, from about
December 5, 1970, through February 19, 1971, engaged in
a concerted activity, cognizable and protected under the
Act either as unfair labor practice or economic "strikers,"
by withholding their employment applications to Respon-
dent prior to Respondent's takeover of the NASA contract
on April 1, 1971. Assuming an affirmative finding to the
latter question, a further issue is whether such TWA in-
cumbents abandoned their concerted activity on February
19, 1971, so notifying Respondent, and "unconditionally
requested reinstatement" 8 by Respondent to their status
and rights which existed prior to the "strike"; and whether
any of such TWA incumbents after February 19, 1971,
were deprived by Respondent of employment or other
rights because of their protected concerted activity. As rea-
sonably construed, the complaint does not allege violation
of Section 8(a)(3) on the basis of deliberate and motivated
discrimination by Respondent in failing to employ any of
the TWA incumbents. Nor, apart from the formalized
complaint, has such a contention been clearly advanced to
my notice and properly attempted to be substantiated in
the litigation. The complaint itself, which is not further
clarified in the arguments, describes the alleged violations
of Section 8(a)(1) and (3) as stemming directly from the
alleged denial of protected rights related to the withholding
of employment applications, and as a consequence of the
alleged unilateral actions.
6 N L R B v Burns International Detective Agency. Inc 406 U S. 272
(1972)
r Although such an allegation is expressly set forth in the charge filed by
the IAM on April I. 1971
9 The theory presented is that these TWA incumbents occupied the same
legal status under the Act as unfair labor practice or economic strikers who
submit unconditional applications to the employer for reinstatement to their
jobs
Respondent's motion to dismiss the complaint on the basis of Section
Continued
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite the voluminous evidence introduced and argued
on all sides at great length, the facts immediately essential
to this decision are virtually undisputed. However, the nar-
rative which follows is not intended as findings that all
such facts are considered to be material but to provide a
sufficiently rounded context within which the issues and
arguments of the parties may be comprehended and evalu-
ated.
B. The JAM and Its Subordinate Units
(1) The IAM, as an International, was the recognized
and contracting party in the two collective-bargaining
agreements , with TWA and with Respondent Boeing,
which existed during the material time of the bidding and
award of the ISS contract at KSC.
(2) District Lodge 142 confines its membership to em-
ployees of TWA and Ozark Airlines at KSC and other
locations.
(3) Local Lodge 773, with membership consisting of
TWA employees at KSC, was a subordinate unit of Dis-
trict Lodge 142 until April 1, 1971 (the takeover date of
Boeing), and assisted in administering the IAM contract
with TWA. In April 1971, Local Lodge 773 also became
affiliated with District Lodge 166, and has since assisted in
dealing with Boeing with respect to the ISS employees.
(4) District Lodge 166 assists in the negotiation and ad-
ministration of contracts with employers operating at KSC
and elsewhere.
(5) Local Lodge 2061 is a subordinate unit of District
Lodge 166 and assists in the negotiation and administra-
tion of the contract with Respondent as it applies to KSC.
C. History of TWA and Boeing at KSC, Contracts with the
JAM
From March 9, 1964 , through March 31, 1971, TWA
operated the ISS project for NASA pursuant to a cost-plus-
award-fee contract and successive extentions thereof. This
operation , sometimes referred to as "housekeeping" serv-
ices, included test support management , plant engineering
and maintenance , and logistical functions relating to
NASA's utilization of KSC as a principal launch site for
space vehicles. Under subcontracts from TWA, certain
other firms performed guard , fire, janitorial , training, and
documentation services . As of March 7, 1971, there were
1,054 ISS employees embraced under contract between the
IAM and TWA for an effective term from January 28,
1970, through December 31, 1971 For the most part, these
10(b) is denied Those violations alleged which preceded the limitation peri-
od, beginning October I, 1970, were continuing in nature The contention
that prosecution is barred by lathes is rejected N L R B v J H Rutter-Rex
Manufacturing Co, 396 U S 258 (1969), is applicable The jurisdictional
defense that Boeing is exempt from the Act as a joint employer with NASA
has no merit It is clear that Boeing exercises effective control over the
employment conditions of its employees at KSC and is competent to bar-
gain collectively within the requirements of the Act See, e g . Atlantic Tech-
nical Services Corp, 202 NLRB 169 (1973), Herbert Harvey, inc, 171 NLRB
238, 239, (1968), enfd 424 F 2d 770, 778 (C A D C 1969) Indeed Boeing
has been subject to the Board's jurisdiction to an election proceeding in
1955 (infra) involving its employees working on the Bomarc project at KSC
covered employees performed various mechanical and
craft functions. The agreement described a single unit en-
compassing all airline and other operations of TWA in the
nation, and was expressly to be governed by the Railway
Labor Act. The parties had successive contracts of similar
content dating from February 17, 1964. On such date, the
ISS employees were brought within the coverage of the
company-wide contract between TWA and IAM, which
specifically identified the "KSC Operation" at Merritt Is-
land, Florida.
Since 1952 Respondent Boeing has had various "hard-
ware" contracts with NASA at KSC involving particular
missile projects, e.g., Bomarc, Minuteman and Saturn-A-
pollo 5. In these contracts the areas of research and testing,
including structural work.10 There were periods of overlap
in each missile program, while earlier projects were re-
duced or phased out, and employees were transferred be-
tween different projects. Boeing's total payroll at KSC
peaked at 809 employees in 1968 and sharply declined
thereafter
In November 1955, following a consent election," the
IAM was certified for an appropriate unit (as described in
the stipulation) of "all maintenance and production em-
ployees in Brevard County, in the State of Florida, em-
ployed by the employer ...." About 280 employees were
affected by the certification who were then engaged under
the Bomarc contract with NASA. Thereafter, the IAM and
Boeing consummated successive bargaining contracts
which specify, as part of their national agreement, a sepa-
rate unit in the language of the Board certification, above
As of the RFP and ISS award by NASA, the existing
Boeing-IAM contract had a term from October 2, 1968,
through October 1, 1971. On April 1, 1971, when it took
over the ISS operation, Boeing had 287 IAM-represented
employees working on its pending missile or hardware pro-
jects at KSC
D. NASA's RFP and Boeing's Proposal on the ISS
Contract
On June 30, 1970,12 NASA issued Request for Proposal
(RFP) for the ISS operation at KSC under a cost-plus-
award-bid contract for 1 year commencing April 1, 1971,
with options by NASA to extend the contract for succes-
sive 1-year terms. An overlapping period, from February 1
through March 31, was specifically contemplated to phase
out the incumbent and phase in the new contractor. In
extensive detail, the RFP described the services to be per-
formed, as well as types and qualifications of personnel
The ISS work involved was essentially the same as that
performed by the incumbent, TWA, with relatively minor
differences.13 The propsective offerors were required to ex-
'o On certain of the missiles, Boeing performed production, maintenance,
testing, and research development at many locations other than KSC
11 Pursuant to a Stipulation for Certification upon Consent Election
12 Hereinafter, all dates are sequentially in 1970 and 1971 unless otherwise
specified
13 Mail and distribution services affecting 51 unit employees were deleted
Other miscellaneous functions involving 70 unit employees were added. e g,
a staffing increase in "Logistics", elevator maintenance, pad lighting, and
some heavy equipment operations previously performed by Bendix Corpo-
ration Also newly included were "Documentation Support Services and
THE BOEING COMPANY
plain their recruiting plans, including the "type and esti-
mate" of local and nonlocal personnel, the "approximate
number" by type of incumbent employees to be hired, their
understanding of existing union agreements, and which
employees were to be represented by "bargaining labor."
In addition, NASA stated:
1. The NLRB has held that when an employer as-
sumes the operations of another employer without
change in employees, jobs or methods, the succes-
sor-employer is obligated to bargain with the Union
before changing wages and other conditions of em-
ployment. Under a recent series of cases, the NLRB
has held that the successor-employer must assume
the predecessor's collective bargaining agreement. It
is NASA's position that the offerors make them-
selves familiar with the NLRB cases covenng this
issue, namely, The William J. Burns International
Detective Agency, Inc., 74 LRRM 1098; Chemrock
Corp., 58 LRRM 1582; John Wiley & Sons v. Liv-
ingston, U.S. Sup. Ct., 66 LRRM 2769.
2. The offeror will have to apply the NLRB's reason-
ing in the previously mentioned cases to the scope
of the RFP in relation to method in which the work
has been performed and to its own intended mode
of operation.
On August 19, 1970, in response to the RFP, eight pro-
posals were submitted to NASA by seven companies, in-
cluding TWA and Boeing,-the latter having two bids. All
the proposals were treated as confidential documents by
NASA, not revealed to the competing bidders, the employ-
ees, unions, or general public. As to Boeing's principal pro-
posal, it needs emphasis that the labor costs submitted
were based specifically upon the wage rates and fringe ben-
efits contained in its existing national agreement with the
IAM, applicable to its KSC hardware contracts.14 In staff-
ing the total contract (including guards, firemen, superviso-
ry, professional, and clerical personnel), Boeing proposed:
Boeing Local 67 3.5%
Boeing other locations 5
Incumbent contractors 1779 85.6%
Local hires 227 9%10.9
2078 100 %
It was deposed by a Boeing official that the 85 6 percent
resulted after calculating the number of its present employ-
ees that would transfer to the ISS operation, the number
that would be recalled from layoff from Boeing employ-
ment in the area, and the number of known talents in the
area available for employment. In the proposal itself there
is no clear breakdown of the number of IAM-represented
TWA incumbents Boeing proposed to hire,15 Boeing's pro-
Training" having little effect on the represented employees That the ISS
operations were basically the same for both of these contractors was de-
posed by officials of TWA, Boeing , and NASA
14 These costs were substantially below the labor costs submitted by TWA
based on the wage rates and benefits in its existing agreement with the IAM
for the ISS unit
549
posal included an "alternate staffing" plan in which it was
stated: "While the staffing plan is based on retaining ap-
proximately 86 percent of the incumbent personnel, FSES
data indicated that the local labor market is sufficient in
both skills and number to provide the staffing require-
ments of this contract." 16 Elsewhere in its proposal, the
statement was made that "After incumbent employees
have been reviewed and those selected given an opportuni-
ty for employment with Boeing, qualified local hires will be
hired to fill the remaining vacancies." In response to
NASA's queries regarding union contracts, Boeing stated
in its bid, as follows:
Boeing does not believe that the collective bargaining
agreement between District 142 of the IAM, and
TWA, covering the operations and maintenance em-
ployees of TWA can be legally applied to The Boeing
Company. However, Boeing has in effect a collective
bargaining agreement with Local Lodge 2061 of Dis-
trict Lodge 166 of the IAM&AW which covers our
production and maintenance employees in Brevard
County, Florida. . . . Since the Local and District
lodges involved are all part of the same International
Union, Boeing sees no reason for them to generate
any labor dispute accruing from these issues.
Boeing's other, alternative, proposal was eliminated ear-
ly in the bidding procedures. The wage rates or other con-
tent of this bid are not revealed The record and the deci-
sion herein are confined to Boeing's main and successful
proposal
On November 23, 1970, NASA announced that it had
selected Boeing "for negotiations leading to an award of a
contract to provide installation and technical support serv-
ices" at KSC.17 The contract, estimated at $20 million for
the first year, would extend from April 1, 1971, through
March 31, 1972, with provision for four 1-year extensions.
On April 1, 1971, Boeing undertook performance of the
ISS contract, without the phase-in period contemplated in
NASA's RFP and Boeing's proposal, and proceeded to ap-
ply the terms of its "hardware" contract with the IAM,
notwithstanding the latter's opposition
Relating to the prospective and actual award of the
NASA contract to Boeing, the events developed along sev-
eral concurrent courses formal and other protests of
NASA's action, meetings and communications within the
IAM; meetings and communications between Boeing and
15In a deposition taken on November 17, 1971, an industrial relations
official of Boeing indicated that the Company expected to hire "the majori-
ty." meaning "all we could get," of the TWA incumbents to staff a force of
about 1,000 production and maintenance employees The approximate date
or time period of such expectation was not shown in the course of the hiring
process, infra
16 In July 1970, Boeing consulted the Florida State Employment Service,
and it was advised, in August, that there would be no difficulty in obtaining
qualified personnel in the desired classifications from available manpower
in the county On July 26 and August 1, as a means of surveying the local
market, Boeing advertised in a newspaper of general circulation seeking
applicants for employment on the ISS work and received numerous affirma-
tive responses
17 On November 25, 1970, the Orlando Sentinel reported that "Boeing
officials said that the firm would hire about ninety percent of the TWA
employees and subcontractor employees"
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the IAM apprising each other of their opposing positions;
and the recruitment of ISS personnel by Boeing.
E. The Protests and Challenges
On November 23, formal protests with the U.S. Comp-
troller General were immediately lodged by TWA 18 and
Pan Am (Airlines). The IAM supported this challenge. On
March 1, 1971, when TWA's protest was rejected, the IAM
itself formally filed with the Comptroller General a chal-
lenge to the Boeing award disputing the claimed applicabil-
ity of the Boeing-IAM agreement to the ISS operation.
(This was ultimately denied in June 1971.) TWA sought an
injunction against NASA in the Federal District Court (D.
C.D.C.), which was denied on March 10. Then, on March
11, NASA announced that Boeing was given the final
award of the ISS contract. Various other suits were filed in
the Federal courts seeking to set aside Boeing's selection,
and for other relief. 19
In January 1971, at roadway entrances to KSC, placards
in the name of Local 773 were exhibited stating protests,
e.g., "Is NASA Involved in Wage Busting?" Boeing was
not named. On February 27, 1971, U.S. Senator Lawton
Chiles held a public meeting in a theater at Merritt Island,
Florida, attended by officials of IAM, Boeing, and NASA,
and a large audience at which the controversy was aired
concerning the ISS contract at KSC. And generally, fol-
lowing Boeing's selection in November 1970, various forms
of protest against NASA's actions were communicated to
U.S. Senators, Representatives, and Congressional com-
mittees.
Directly related to NASA's award of the ISS contract at
KSC,20 the Service Contract Act was amended on October
18 On the basis, in part, that the purchasing power of the Government was
being used as an instrument to deprive employees of the wages and benefits
gained through collective bargaining with an incumbent contractor
19 E g In April 1971, the IAM filed a grievance with Boeing that, in
violation of the IAM-TWA agreement, Boeing failed to retain at least 602
incumbent employees on and after the takeover on April I, that it treated
the incumbents that it retained as new hires , and that it failed to observe the
terms of the IAM-TWA agreement The IAM then requested arbitration In
May 1971 Boeing brought action in a Federal District Court seeking a
declaratory judgment that it "is not a successor to [TWA] and is not bound"
by the TWA agreement , and the IAM counterclaimed seeking enforcement
of its arbitration demand After April I Boeing placed in escrow and refused
to remit to the IAM the dues it deducted from the employees' wages pur-
suant to their individual authorizations As part of its counterclaim, the
IAM requested turnover of the dues In October 1972, the court found that
"Boeing is not a successor and is not bound by the collective-bargaining
agreement between TWA and IAM" and denied enforcement of the arbitra-
tion demand , basing its decision on Boeing 's failure to employ a majority of
the TWA incumbents The court also ordered Boeing to remit the dues to
the IAM Boeing v. IAM, 351 F Supp 813 (D C Fla.) Appeals by the IAM
and Boeing are pending before the Fifth Circuit Court of Appeals In 1971
the IAM filed suit against the Secretary of Labor, NASA, and Boeing con-
testing the award to Boeing on the ground that it was made without compli-
ance with the Service Contract Act of 1965, it sought vacation of the award
to Boeing , resolicitation of the NASA contract , and indemnification of the
employees for the loss they sustained in receiving less than the minimum
wages and fringe benefits prevailing in the locality in November 1973, the
suit was dismissed IAM v Hodgson, et at, 21 WH Cases 344 (D C D C )
20 S Rep No 92, and Hearings before Subcommittee on Labor Senate
Labor Committee, on S 3827, H R 15376, 92d Cong, 2d Sess (1972),
Hearings before Special Subcommittee on Labor, House Labor Committee,
on H R 6244, 6245, and Report of Special Subcommittee on Labor, House
Labor Committee, "The Plight of Service Workers Under Government Con-
9, 1972, by the addition of a new section 4(c), in substance
providing that a succeeding contractor subject to that stat-
ute shall pay its service employees no less than the wages
and fringe benefits specified in the collective-bargaining
agreement with the predecessor employer.21
F. Staffing the ISS
Following its selection by NASA on November 23, 1970,
Boeing proceeded with arrangements for staffing the ISS
operation on the contingency that it would later be award-
ed a firm contract. In contemplation of the phase-in provi-
sions of the RFP, Boeing's proposal specified certain re-
cruitment procedures to be implemented in consultation
with NASA and with the concurrence of the existing con-
tractor, TWA. These included the establishment of an on-
site employment office; review of personnel folders fur-
nished by TWA and preparation of a list of incumbents
recommended for hire; and use of selected TWA supervi-
sors reporting to nearby offices in work areas to interview
incumbent candidates. An employment schedule, prepared
in November 1970, projected that 1,500 offers in all catego-
ries would be extended by February 1, and 2,500 offers by
March 1. And it was expected that staffing would be com-
pleted by March 3, although all employees would not be on
Boeing's payroll until March 31. However, the proposed
procedures were sharply altered On November 30, 1970,
an initial meeting took place between high officials of
TWA and Boeing. TWA objected to onsite recruitment by
Boeing because it would interfere with TWA's operations
in the remaining period of its contract with NASA. In-
stead, Boeing accepted TWA's proposal that TWA under-
take to distribute the employment applications, collect the
completed forms, and return them to Boeing. TWA refused
to make available the incumbent personnel folders. There-
after discussions continued between officials of TWA and
Boeing.
On December 1, in general meetings and by letter, TWA
informed its employees of procedures concerning their em-
ployment after the Boeing takeover. A "Declaration of In-
terest" form was distributed which the employees were
asked to complete and return to their supervisor. On this
form, the employee was requested to indicate certain
choices: (1) employment by the successor contractor, if of-
fered, (2) consideration for a TWA position at a specific
location, (3) consideration for a job at any TWA location,
(4) exercising union-security rights under the TWA-IAM
contract to displace another TWA employee, and (5) seek-
tracts," 92d Cong, 1st Sess (1971)
21 "No contractor or subcontractor under a contract, which succeeds a
contract subject to this Act and under which substantially the same services
are furnished , shall pay any service employee under such contract less than
the wages and fringe benefits provided for in a collective-bargaining
agreement to which such service employees would have been entitled if
they were employed under the predecessor contract Provided, That
such obligations shall not apply if the Secretary finds after a hearing
that such wages and fringe benefits are substantially at variance with those
which prevail for services of a character similar in the locality " Public Law
92-473 Of course, the Service Contract Act and the National Labor Rela-
tions Act are separate statutes with entirely different purposes The conten-
tion of the iAM that , as to the issues herein, the N L R A "must be inter-
preted compatibly with the public policy enunciated by Congress" in the
foregoing amendment of the Service Contract Act has no validity
THE BOEING COMPANY
Ing employment elsewhere. Only those employees who in-
dicated such an interest received from TWA forms of em-
ployment application with Boeing. However, it also ap-
pears that some of the incumbents were able to obtain ap-
plications from other sources and by direct request from
TWA; and some personally made application at Boeing's
offsite employment office. TWA also conveyed the infor-
mation to the employees that Boeing had indicated a desire
to employ a large percentage of the incumbents.
As of December 18, TWA advised Boeing that about 500
incumbents had indicated on their declaration of interest
forms that they desired to work for Boeing. TWA specifi-
cally advised the employees of its formal protest with the
Comptroller General against NASA's selection of Boeing
and that, failing in its protest, it would do everything that it
could to assist employees in finding other employment. On
January 8 it stated in a bulletin to employees that it was
strongly convinced of the validity of its claims and it in-
tended to pursue the protest to an ultimate conclusion. On
January 7, 8, and 9 newspaper ads were placed by Boeing
seeking applicants for the ISS work. Boeing's reason was
that, until then, it had received an insufficient number of
applications from incumbents to satisfy its schedule for
staffing. It also hoped that, when the incumbents saw the
ad, they would get their applications in expeditiously. In
response to the ads, Boeing received numerous applica-
tions from nonincumbent sources in all position categories.
As of January 11 Boeing had received applications from
263 TWA hourly employees. These were more than half of
the IAM-represented employees who had earlier indicated
to TWA an interest in such employment, and they com-
prised 26 percent of Boeing's ultimate requirement of hour-
ly employees. In other categories-general office, profes-
sional-technical, and management-most of the TWA in-
cumbents had already applied by this date. On January 11,
Boeing's daily status report shows that 59 TWA hourly
employees had been interviewed, of whom 20 received of-
fers, and that 112 former Boeing employees had been inter-
viewed for hourly jobs, of whom 11 received offers. In mid-
January, NASA requested that Boeing halt further offers
of employment until the completion of an Apollo space
launch scheduled for January 31. During the interim peri-
od, Boeing continued all aspects of its recruitment proce-
dures, except the placing of prepared offers in the mail-
which in fact were mailed after the launch on January 31.
In this process, "quite a few" offer letters already prepared
for nonincumbents were withdrawn and sent instead to in-
cumbents. As of February 2, a cumulative total of 851 of-
fers had been extended for hourly jobs, of which 227 went
to TWA employees, 78 to former Boeing employees, 39 to
current Boeing employees, and 507 to "other" applicants.22
As of February 19, a critical date in the complaint,23
Boeing's status report shows the following figures in the
recruitment of hourly employees-
Applications
Received Interviews
Offers
Extended Accepts Re acts
Former
Boeing 168 171 128 116 12
Boeing 0 0 46 25 0
TWA 435 354 273 205 4
WACs 359 1 52 0 0
Other 1771 614 547 464 67
551
Slot-ups
51
0
81
0
264
*Wackenhut Corp .. apparently reflecting the employment of guards , outside
the IM bargaining unit.
As of March 20, applications had been received from
626 TWA employees, of whom 467 had been interviewed,
with 403 offers extended. The earlier targeted dates for
completion of the hiring process for hourly employees and
the originally planned phase-in period prior to April 1 had
been abandoned 24 As of Boeing's takeover on April 1, the
final data as to hourly employees indicate:25
Applications
Received Interviews
Offers
Extended Accepts Re jects Sixg-vos
Former
Boeing 242 175 143 124 19 124
Boeing 0 0 46 41 5 41
TWA 944 472 454 403 48 402
WAC 401 1 318 309 9 309
Other 2,279 629 586 467 119 467
G. The Duncan Question
Respondent contends that it relied on a verbal agree-
ment from the IAM in preparing its bid to NASA predicat-
ed on the Boeing-IAM hardware contract and the lower
22 The offers were made contingent upon final award by NASA, with the
work scheduled to start on April I In offers made to laid-off employees
elsewhere in the Boeing system , they were advised that failure to accept the
offer would result in change from layoff status to termination
23 I.e., the allegation that on February 19 an unconditional request for
reinstatement was made upon termination of a "strike" which commenced
about December 5
24 After January 31, Boeing had an "accept target line" of about 12 day%,
estimated as the average time lag from the offer to an acceptance
25
Reference has been made to the daily status reports (Comp Exh 2-I to
Exh 14-B of Joint Exh I) which include numbers of applications received
Another exhibit (Exh 13 to Joint Exh I) reflects comparable but not mate-
rially different figures, e g., that 380 TWA employees were hired as of
April I
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage rates and benefits contained therein. In the entire
record it is evident that, in seeking to obtain the award
from NASA, and in its dealings with the IAM thereafter,
Boeing maintained a fixed position that its hardware con-
tract with the IAM was applicable to the ISS project. Con-
cededly, it had advice of counsel from the outset. In pre-
paring its bid, it did not attempt to communicate directly
with the International, nor seek to obtain from the IAM
anything in writing on this subject, because it felt that the
Boeing-IAM contract was "very plain" on its face. The
verbal assurances which it sought from the IAM were
deemed to be "insurance." Thus it appears that, in July
1970, and thereafter, Respondent's industrial relations
manager, John Sutherland, had discussions with Robert
Duncan, business representative of District Lodge 166.26
Sutherland told Duncan that, in submitting its ISS propos-
al to NASA, Boeing was planning to use the rates in the
existing IAM (hardware) contract. Duncan was asked to
get an opinion from IAM Vice President George Watkins
and from IAM General Counsel Plato Papps. On several
occasions, Duncan communicated with these and other
sources in the International. I credit Duncan's firm denial
that he advised Sutherland of any agreement to apply the
Boeing-IAM contract, on the part of Duncan personally,
or from the offices of Watkins or Papps. Duncan related to
Sutherland the substance of his talks with the International
sources,27 that no decision had been made on how the IAM
would go, particularly in view of the numerous bidders on
the ISS contract, but that the IAM "did feel that whoever
got the contract was going to have to pay the wages, at
least, that TWA was paying." There was no mention of
such purported verbal agreement with the IAM in Boeing's
ISS proposal to NASA, or in its later exchanges directly
with the IAM top officials on the question of which of the
existing contracts, TWA or Boeing, was applicable. In sum,
I reject this contention of Respondent as completely spe-
cious 28 However, what is significant from all this evidence
is the early and clear indication to the IAM that Respon-
dent was proceeding, in its bid for the ISS work and in
implementing the NASA award, on the basis of the Boeing
hardware contract, with the provisions for substantially
lower wages and benefits.29
26 Duncan's term of office expired on December 31, 1970, following a
union election
27 In his deposition taken on November 18, 1971, Duncan clearly stated
that , among others , he spoke with Watkins
28 In addition , Respondent appears to rely on a December 30, 1970 , letter
from Duncan , wherein he agreed to apply to ISS employees certain classifi-
cations under the Boeing -IAM contract This letter can scarcely be found to
constitute an agreement by the IAM that the Boeing contract would apply
if Boeing obtained (as it later did ) the final ISS award from NASA
29 At the instant hearing , Duncan testified there was a continuing desire
by Boeing to determine the IAM's position, and that he thinks he talked to
Watkins personally In his deposition on January 21, 1972 , Watkins did not
recall a discussion on this subject with Duncan ("it could well have been"),
but he "could not say" he was aware prior to December 1970 that Boeing
was going to bid the wage rates of the Boeing-IAM contract In any event,
I find it inconceivable on this evidence that the IAM leadership was not put
on notice as a result of Sutherland 's early overtures
H. Internal IAM Activity
About December 3,30 and again in January 1971, there
were trips to Washington by a delegation of officials from
Local 773 (whose membership consisted of TWA incum-
bents) to discuss with the IAM International, NASA, and
various sources in Congress NASA' s selection of Boeing to
negotiate the ISS contract. The delegations were led by the
local president, Darryl D'Andrea. He testified that in the
beginning there was a lack of policy coordination between
Local 773 and the International, apprehension of possible
collusion between the IAM and Boeing, and general confu-
sion.
IAM Vice President Winpisinger deposed as to the dis-
cussions with the D'Andrea delegations. He assured them
that the IAM would do everything legally in its power to
defend their jobs and the negotiated wages and conditions
regardless of who their employer would be. He assigned a
coordinator, Frank Waldner, to guide Local 773 in resolv-
ing its problems and to see that the policies of the Interna-
tional were carried out. Waldner would have the assistance
of James Fowler or William Dinkelmeyer from District
Lodge 142 present at KSC. Particularly in view of ques-
tions raised by Local 773, Winpisinger, with the concur-
rence of other high officials, had formulated the policy
concerning the Boeing employment applications: The
members were to be told to fill out the applications and
give them to Fowler, who would then transmit them with a
cover letter reserving the rights of the applicants under the
TWA-IAM contract. Instructions from the International
were firmly and repeatedly conveyed to Local 773 officers
to carry out this policy 31 According to Fowler, there was
some resistance, not so much from the membership but
from three men on the grievance committee who did not
wish any applications to be turned in. Fowler deposed that
at KSC he told the officers of the Local "they were not to
stop people from turning in applications." On December
22, Fowler sent John Keil, TWA's manager of industrial
relations, the following letter:
Enclosed herewith are printed forms regarding em-
ployee data as requested by the Boeing Company.
Please be advised this information is being provided
under protest and is in no way to be construed as an
acceptance of any lesser rate of pay, hours of employ-
ment , working conditions, or other employee benefits
as are now, or will be in effect under the terms of the
present collective bargaining agreement between the
International Association of Machinists and Trans
World Airlines.
cc: V.P . Winpisinger
30 Deposition of IAM Vice Presidents Winpisinger and West
31 John Peterpaul an international officer, deposed that Waldner kept
him informed of the developments at KSC respecting the activities of Local
773. particularly in the matter of filing Boeing applications He indicated
that the Local had 6 or 10 officers with different opinions as to courses of
action in protecting the TWA jobs and wages He stated that the Local
officers were given instructions from the international which they were un-
questionably obligated to fulfill
THE BOEING COMPANY
Thereafter , from time to time in December and January,
completed forms were hand carried by Fowler to TWA for
delivery to Boeing . It is noted that , as of January 11,
Boeing had received from TWA hourly employees some
263 applications for employment . 32 However , also on De-
cember 22 , D'Andrea of Local 773 mailed a letter to the
membership , in part as follows:
Dear sisters and brothers:
I am writing with regard to the applications for em-
ployment . It appears that a great deal of confusion has
arisen as to what the union wants done.
We have been advised by the International Headquar-
ters that we should not turn these applications in. It is
their feeling that the Company is attempting to divide
the ranks and thereby undermine our position that our
wages, hours and working conditions will remain in
effect.
For those people who feel they must fill out an appli-
cation , we have requested that they leave the wages
part blank and turn them in to their local union stew-
ards or committeeman We, in turn , will forward these
applications with a cover letter stating that these ap-
plications are only for information purposes and the
wages and working conditions will be as set forth in
the present IAM/TWA Contract.. .
D'Andrea conceded that he was in error as to the second
paragraph , above , and this was made clear to him and
other Local officers by the spokesmen for the Internation-
al.
In evidence are certain documents of various Local 773
union meetings , notices to members , and communications,
which reflect in part the following.
On December 28, minutes of Local 773 executive board
meeting:
We discussed what position to take on the Boeing ap-
plications at this time. We agreed to stand by Brother
D'Andrea's letter. We would prefer the membership
not to fill them out but if you do so, we will turn them
in to the Company.
On December 30, a letter from Local 773 to Vice Presi-
dent Winpisinger:
This letter will confirm a request made to Asst. Airline
Coordinator Frank Walden on December 30, 1970,
that a Grand Lodge Representative preferably Brother
George Brown , be assigned to the Kennedy Space
Center to assist and advise the Local Officers and
32 Undoubtedly , many of these applications were turned in by the em-
ployees to TWA or filed directly with Boeing Fowler indicated the total
number he sent over to TWA was less than 50
553
Grievance Committee in the problems of the TWA
contract with NASA, that is presently in dispute.
This request is made in order to protect the interests of
our members , by assuring them that the decisions
made here by the local officers are consistent with the
thinking of our International Headquarters.
Early in January, a Local 773 notice to members:
BOEING applications are to be returned to the Local
Lodge Grievance Committee through your steward or
to your officers.
DO NOT, WE REPEAT, DO NOT fill in the wage-
rate Instead use the words I.A.M. or T.W.A.
ALL APPLICATIONS THAT ARE FILLED OUT
MUST BE RETURNED TO THE GRIEVANCE
COMMITTEE OR TO YOUR OFFICERS.
In mid-January, a "Special Fact Notice" from Local 773:
FACT # 1: As of this date , no company has been
awarded the contract now held by T W.A.
FACT # 2: We have been advised by NASA that no
award would be made prior to final decision on pro-
tests lodged by T. W A. and PAN AMERICAN
FACT # 3 Our International President , Floyd E.
Smith , has notified the White House, The Secretary of
Labor, NASA, The Comptroller General and other ap-
propriate Government Agencies that the IAM 's position
is that the KSC-TWA union members should be af-
forded continuation of employment with wages, bene-
fits and working conditions as provided under the
terms of the present IAM-TWA Agreement.
FACT # 7. Some TWA employees have been advised
by letter of ultimatum from prospective employer that
reply on desire for employment must be returned by X
date-or else! In response to this latest threat to your
job security , and with the assistance of ... District
142 representatives on Friday, we were in constant
contact with top government officials in Washington
and we have now been advised that the Boeing Com-
pany rescinds the deadline expressed in their letter
and will again contact these TWA employees, some-
time in the future, who may have submitted applica-
tions'
Attached to this "Special Fact Notice" is a telegram on
January 15 sent to Boeing by J J. Schwind , president-gen-
eral chairman of District 142, in part:
. .. in accordance with applicable law, the entire
work force must be offered employment opportunities
subsequent to the final awarding of the bid to any
successor company. Therefore , the applications for
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment that Boeing is soliciting from our union
members are unnecessary , and we will take all appro-
priate steps to support this position for the complete
protection of our membership.
On January 26, a "Fact Sheet" from Local 773•
FACT # 1. At the time of this writing, the Contract
has still not been awarded.
FACT # 2. The protest of T.W.A. and PAN AM is
still before the Comptroller General 's office.
FACT # 3. The position in regards to the applications
remains the same.
On February 12, "`Fact Sheet" from Local 773:
FACT # 1. Until a decision from the Comptroller
General 's office is made , Boeing does not have a con-
tract.
FACT # 2. Status quo on applications
On February 17, minutes of Local 773 membership meet-
ing at 8 a.m., in the presence of District 142 General Chair-
man Schwind:
Good and Welfare: President D'Andrea spoke on the
contract. A question was asked about the employees
who had not turned their applications in to Boeing.
President D'Andrea stated that we held out on turning
in the applications as we felt this was the best interest
of the members. He also stated that there was no guar-
antee that these employees who held out would be
guaranteed a position with Boeing.
February 17, minutes of Local 773 membership meeting
at 5 p.m.:
We have contacted Mr. C. R . McGehee , Division
Manager with Boeing , stating wages, hours and work-
ing conditions remain the same . It is the District's po-
sition that we preserve this, regardless of who the con-
tractor is . Brother Schwind again stated that members
should submit an application to Boeing and get your
job. On the other hand , it can hurt you and your fam-
ily.
The foregoing relates particularly to the alleged "strike"
from December 5 to February 19. After the Boeing-IAM
meeting on February 19, infra, there is no contention of
concerted withholding of Boeing applications.
1. 1AM Meetings and Communications with Boeing and
NASA-to April 1
On November 13, 1970, IAM President Floyd E. Smith
sent a wire to NASA, stating in substance:
now has pending a determination with respect to the
continuation of Trans World Airlines Inc., as a sub-
contractor for certain so-called Trans World Airlines
Inc., as a subcontractor for certain so-called house-
keeping functions at the Kennedy Space Center... .
The employees of TWA in this case are represented by
the [IAM].... The employment in question is gov-
erned by the provisions of the Railway Labor Act as
amended and the [IAM] is the duly authorized and
certified employee representative. As such, we have a
collective-bargaining agreement . . . which ordains
that the work in question will be performed by appro-
priately classified employees under the coverage of
that agreement. The "scope rule" contained therein
effectively and lawfully asserts that the IAM members
. .. in effect "own" the work currently contracted for
TWA. That same agreement embodies a "successor
and assigns" clause which preserves all rights accruing
thereunder whether or not any change in the employ-
ees occurs. . . . We regard the rights enumerated
herein as inalienable and this wire may be construed
as notice by the IAM that we will do all in our power
to preserve them intact including recourse to the ap-
propriate Federal Courts should that become neces-
sary.
IAM General Vice President William P. Winpisinger de-
posed on August 23, 1971, that "Beginning with this tele-
gram and in every subsequent letter or document from our
union, we were insisting upon, A, title to the work, and B,
wage rates and working conditions commensurate with
those enjoyed by the employees manning the jobs, our
TWA agreement, in effect."
On December 1, at a NASA-requested meeting with the
IAM, NASA indicated that it was going to try to release
the ISS contract to Boeing.33
On December 4, at Boeing's request, there was a meeting
with the IAM of top officials. Principal spokesmen were
Vice Presidents Winpisinger and West for the IAM, and
Charles R McGehee, general manager of field operations,
for Boeing. Boeing stressed that its tentatively accepted
proposal to NASA was based on the current hardware con-
tract at KSC, and that this contract bound the IAM as to
wage rates and terms in covering the ISS work. Boeing
presented the IAM with a worksheet showing the specific
wage rates in various craft and other classifications con-
tained in the TWA and the Boeing contracts, as well as a
fringe benefit comparison of these contracts. In 11 of 18
categories, a decrease in excess of 10 percent from the
TWA rates is reflected; for example in five instances, the
decrease is 20 percent. The IAM asked if there was any
area in which Boeing could move Boeing indicated that
"there might be if they were allowed by NASA." An inter-
nal union meeting was scheduled for the next day, Decem-
ber 5, to consider the position the IAM would take, and
Boeing was asked to stand by.
Subsequently, at a luncheon meeting, NASA told the
IAM in point blank "that if Boeing even attempted to
33 This was of course already a matter of presumptive knowledge in light
Information reaching my office indicates that NASA of the selection of Boeing on November 23
THE BOEING COMPANY
change wage rates upward that they would reopen the bid-
ding on the contract." NASA emphasized that it had a
right to get the lowest possible prices for the contract and
effect a cost savings to the Government. Winpisinger and
West deposed that, other than the conversation concerning
NASA on December 4, they were not aware that the 1AM
made any subsequent demand for negotiation concerning
the wage differential in the contract positions of the par-
ties.
On December 5, the IAM officials met among them-
selves. Winpisinger gave the version: "After a very careful
assessment of Boeing 's responses and their flatfooted pos-
ture that they had to implement their wage rates, we then
had our own discussion and we had to equally flatfootedly
say that there is no way that we as a union can go out and
advocate a reduction of wage rates to anybody." Boeing's
use of employment applications, of which the IAM was
then aware, was not considered, nor the possibility of call-
ing a strike or the use of any other economic pressure
against Boeing or TWA. They did "certainly" discuss "how
to try and put NASA on the spot for being a wage-cutting
agency." Following this meeting, West telephoned McGe-
hee and stated that under no circumstances would the
IAM buy the wage scale of the Boeing contract, and that
the union position was to pick up under the same condi-
tions provided in the TWA contract.
On December 16, IAM President Smith sent a wire to
NASA, with a copy to Boeing, in part as follows: Concern-
ing the negotiations between Boeing and NASA on the ISS
contract, "it is the position of LAM as representative of
TWA employees . . . that any successor employer must
assume wages, hours, and working conditions as currently
embodied in Collective Bargaining Agreement between
IAM and TWA. No other labor agreement has applicabili-
ty . . . Boeing has been advised of this position... .
On December 23, Pete Pitard, an industrial relations em-
ployee of Boeing, addressed a memorandum to ISS Project
Manager Morehead and Labor Relations Manager Suther-
land, stating:
Some more info on Local 773 at TWA:
To date, they have 50 Boeing applications submitted
by their membership. They plan to give them to us
with a list of demands.
(1) that we accept the group as a unit, without inter-
views or qualification checks
(2) that we accept 773 as a bargaining unit
(3) that we pay 773's scale wages.34
J. IAM-Boeing Meeting on February 19; Subsequent
Staffing
On February 19, at the IAM 's request , a high level meet-
3° The source of this information was not shown Pitard did not testify
and no corroboration was offered Relied on by the General Counsel, this
item can only be regarded as pure speculation and hearsay
555
ing took place with Boeing at Cocoa Beach, Florida. Wald-
ner for the IAM and McGehee for Boeing were the main
spokesmen. D'Andrea for Local 773 also attended. IAM's
purpose was stated that it was not concerned with who got
the ISS contract, but it was prepared to assist in whatever
agreement was necessary to effect an orderly transfer of
the incumbents. Boeing emphasized that it will hold the
IAM to the existing Boeing-IAM contract. At the onset, it
made every effort to favor the TWA incumbents, but at
this late date it could not extend any preference. Waldner
stated generally that the TWA employees he represented
did seek employment with Boeing, and offered a member-
ship roster of names. McGehee said this was not good
enough; Boeing had to have individual applications. IAM's
response was that if it takes some individual piece of paper,
although the matter of the award was "still very much up
in the air," it will cooperate fully. Waldner deposed that it
came as a complete "shock" to the IAM officials when
they heard for the first time at this meeting that the filing
of an application would not mean a job for the incum-
bents, and that they had to pass security, medical clear-
ance, and the standard Boeing hiring process. McGehee
indicated that "maybe it was too late anyway." Schwind of
the IAM suggested the possibility of a 30-day postpone-
ment of the takeover on April 1 to allow for a smooth
transfer of employees. McGehee did not see any benefit to
it but said he would "let him know something." The IAM
wanted to send application forms to all TWA incumbents
(numbering about 1,100), notwithstanding previous distri-
bution of these forms and those already filed with Boeing.
Such an understanding was reached at the meeting.
On February 25, Boeing sent a telegram to the IAM
concerning Schwind's request for an extension of the April
1 changeover date:
Consistent with your request, we have examined the
desirability of requesting an extension of the April Ist
take off date for the [ISS] Contract.
We cannot at this time see any benefit to the interest-
ed parties. We remain ready to meet with you to dis-
cuss the orderly transition of responsibility from TWA
to the Boeing Company.
Also on February 25, Schwind sent a letter to McGehee,
in pertinent part: Confirming a telephone conversation on
February 24, to assure Boeing that "all employees are in-
terested in maintaining employment with Boeing,"
. .. we assure you that all IAM-TWA members
would be contacted and provided with an individual
Boeing employment application form with proper in-
structions.
The Union, however, advise[s] you that our position re-
mains unchanged regarding lowering the wages, benefits,
etc, which the IAM-TWA employees are presently en-
joying. [Emphasis supplied]
Boeing furnished on March 1, 1971, the IAM with 650-
750 application forms, all that it had available at KSC, and
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arranged to fly in from other locations additional applica-
tions; some were also obtained by IAM from TWA. The
IAM waited until it had a "sufficient number" to send to
every TWA employee, so that "nobody could claim that
they got preferential treatment." In early March, the IAM
mailed out the forms to the employees with a covering let-
ter dated February 26. The letter stated in part:
A meeting was conducted with the Boeing Company,
a prospective bidder, on February 19. . . . The union
very emphatically and clearly informed the Boeing
Company that the IAM International President's posi-
tion remains unchanged with respect to our willing-
ness to pursue into the courts, if necessary, our claim
for full and proper application of the existing IAM/
TWA Contract.. . .
Accordingly, I have received instructions as follows
from District Lodge 142 President . . . Schwind,
which are fully endorsed by your Local Lodge Execu-
tive Board. You will find enclosed a Boeing applica-
tion form for employment. You must fill it out com-
pletely, except for that portion concerning wages.
Please leave that portion blank, and return the form to
the local lodge office in the enclosed envelope by re-
turn mail, or by other means, promptly... .
On March 9, the IAM transmitted 504 completed appli-
cations to Boeing with a covering letter, in part as follows:
Enclosed herein please find completed applications of
TWA/IAM employees that are interested in maintain-
ing employment in the event that the Boeing Corpora-
tion is awarded [the ISS contract], as was discussed at
our February 19th conference.. . .
However, be advised that by the Union's supplying
the above said applications does not suggest nor imply
that our position has changed with regard to the low-
ering of wages, benefits, etc., which TWA/IAM em-
ployees now enjoy.
In letters from March I I through 16 to Boeing, completed
applications from 80 employees were submitted, and from
March 18 through 29, 6 additional applications. Thus, from
the IAM's testimony, a total of 590 completed applications
were sent to Boeing through the IAM after the February 19
meeting. However, Boeing's daily status reports show that,
after February 19, it received from TWA hourly employees
778 completed applications, of which 269 were duplicates
of previous filings. In these reports it is recorded, for exam-
ple, that 20 such applications were received on February
23, and that the last group of applications was received on
March 22.35 During the same period from February 19 to
April 1, there were additional applications filed for hourly
jobs by 74 former Boeing employees, to whom 15 were
extended offers, and 508 applications from "other"
sources, to whom 33 were extended offers. About March
35 The variations from the IAM evidence, though not at all significant, is
not explained
20, Boeing rescinded the acceptances of 17 nonincumbents
and 3 incumbents "because of a reduction in require-
ments." NASA had removed a portion of the ISS contract
involving the "Bendix" operation. Boeing explained that it
was unable to find other jobs for this group of 20 offerees,
among those who were affected by NASA's curtailment.
Boeing's stated position was that, apart from this NASA
change , it was committed to hire all applicants who had
accepted offers and were "signed up." Further, it is noted
that the great bulk (507) of the offers to "other" applicants
was made about January 31, from 1,522 applications re-
ceived in this category. By April 1, of 2,279 applications
filed in the same category, 586 offers were extended, and
467 were hired.
Two observations should be made: (1) The IAM had
650-750 application forms immediately available on Feb-
ruary 19 which it could have, without delay, sent to TWA
hourly employees. Having been apprised and being aware
that it might already have been "too late," it assumed a risk
of jeopardizing job opportunities for some of the interested
employees by waiting until early March in order to send
out the forms to all 1,100 employees at once. (2) The IAM
and the applicants themselves also took such a risk by de-
laying submission of the completed forms until March 9
and thereafter, while being aware that the takeover date
was definitely set for April 1. Furthermore, the employees
and Boeing were specifically told in relation to these later
applications that the IAM maintained its strong position in
rejection of any lowering of wages and benefits from the
TWA/IAM contract. In light of these and other factors, it
cannot be accepted on its face that all of these late-filing
applicants were seriously interested in taking employment
with Boeing, while reserving their legal rights, at the lower
rates which they knew Boeing was generally offering.36
The ultimate fact established is that on April 1 Boeing
had 970 employees on its installation support services pay-
roll, divided among 380 TWA incumbents, 138 Boeing em-
ployees (transferred, recalled from layoff, former), 450 out-
siders, and 2 employees unidentified as to source.
K. Maintenance Utility Man
This classification was not specified in Boeing's bid to
NASA.37 As of April 1, 202 such employees had been hired
by Boeing, of 281 indicated as "required" by Boeing Gen-
erally they were assigned as assistants or helpers to the
journeymen in particular crafts, and designated by Boeing
to perform lower skill functions than those of the journey-
men; they received substantially less than journeymen pay
TWA, as the ISS predecessor, had only two levels of hourly
76 It is noted, for example, that TWA had about 1,100 hourly employees,
that about 140 of these were retained or transferred within the TWA system,
and that 944 filed applications with Boeing as of April I These figures leave
no room for employees who chose not to file or who had already made other
dispositions, e g , seeking employment elsewhere than at TWA or Boeing
It is ajob description or classification which was included by reference
in the Boeing-IAM nationwide contract In Duncan's letter to Boeing of
December 30, supra, he concurred that this classification might be installed
at KSC, and that the "Helper" classification could be "reactivated" under
the Boeing-IAM contract Since Boeing had unilaterally undertaken to ap-
ply this contract on April 1, it may reasonably be inferred that it did not act
solely in reliance on Duncan's letter in utilizing the maintenance utility
classification for the ISS project
THE BOEING COMPANY
employees-leadman and journeyman. It is apparent that
Boeing undertook to hire a greater percentage of TWA
incumbents in higher skill categories, and to hire a greater
percentage of "other" applicants in the maintenance utility
man and "Helper Learner" categories.38 It is clear that all
labor costs were to be paid by NASA, at least in the first
year of the ISS contract, and it must be assumed that
NASA was aware and approved the extensive hiring of
employees as maintenance utility men. Certain employees
hired by Boeing in this classification testified they per-
formed the same journeymen work for Boeing as they pre-
viously did for TWA. Mainly as a result of grievances filed
by the IAM and U.S. Department of Labor procedures
invoked to obtain prevailing wage determinations, 130
such classifications were eventually changed by Boeing
principally to reflect journeymen wage rates. As of June 27,
1973, only four maintenance utility men were left on
Boeing's ISS payroll. The inference to be drawn from this
evidence is that Boeing consciously used this classification
to reduce the cost in its contract proposal to NASA. It is
not alleged, nor can it be found, that violative discrimina-
tion against the TWA incumbents was thereby involved.39
L. Request for Recognition
On March 12, following NASA's award of the ISS con-
tract to Boeing, IAM President Smith wrote to Boeing, re-
questing (1) that Boeing recognize IAM in a unit of the ISS
employees, (2) that Boeing refrain from unilateral changes
in wages and conditions of employment in such unit, and
(3) that Boeing adopt and observe the terms of the IAM-
TWA contract. "If Boeing believes that particular terms of
that agreement are inappropriate in their application to
[the ISS unit], the IAMAW requests that Boeing identify
those particular terms. . . . The IAMAW will negotiate
with Boeing concerning those identified terms to the end
that mutual agreement upon the deletion, modification, or
continuance of those terms shall be sought."
On March 19, Boeing replied in substance that (1) it
recognized the IAM as representative of the ISS employ-
ees, but as an accretion to the unit covered by the Boeing-
IAM contract and not as a separate unit, (2) it would apply
the Boeing-IAM contract to the ISS work at KSC, and (3)
it would make no unilateral changes in the employment
terms fixed by the Boeing-IAM contract In addition,
Boeing stated that employment had not been offered TWA
employees who "failed to timely complete and file employ-
ment applications"; that on the basis of its current recruit-
ment , at least 625 of about 1,000 ISS employees will be
nonincumbent, i.e., that IAM will lack majority representa-
tion of the ISS employees; and that Boeing does not regard
itself as a "successor" to the bargaining relationship or to
38 In the initial phase of recruitment , Boeing made efforts to interview
incumbents before other applicants It offered lead jobs carrying maximum
pay to TWA applicants on the basis that those who applied early would get
the higher paid positions By such means, it hoped to accelerate the filing of
applications by other TWA employees
9 General Counsel's query whether a greater number of TWA employees
would have been hired if initially Boeing had properly classified the work
performed by maintenance utility men is entirely speculative and without
sufficient substance to affect the issues
557
the contract which existed between TWA and the IAM.
M. Posttakeover Relations
On April 1, Boeing assumed the performance of the ISS
operation at KSC, and applied to these employees all the
terms of the existing Boeing-IAM (hardware) contract.
Each of the ISS hourly employees reporting for work on
and after April 1 received from Boeing a copy of the
Boeing-IAM contract in the form prescribed by that agree-
ment, viz:
Employees in the bargaining unit to which you have
been hired or transferred have chosen [the IAM] to be
their bargaining agent in accordance with this law and
that union now represents all employees in that group
on matters dealing with your wages, hours, and work-
ing conditions. [The IAM] is the Union that negotiat-
ed with the Company the agreement that states these
conditions in detail. You are now being given a copy
of that agreement. You are urged to study the agree-
ment carefully and thoroughly as soon as you can do
so. If you do not understand any part of it, a union
representative or a Company representative will be
glad to be of help in this regard.
Thereafter, while the IAM maintained its legal position on
the applicability of the TWA-IAM contract and opposed
the Boeing-IAM contract, the union security and checkoff
provisions of the latter contract were implemented, dues
were deducted from the employee's wages (and held in es-
crow by Boeing subject to the pending law suit, supra),
numerous grievances were filed by the IAM and settled
pursuant to the Boeing-IAM contract, and all other terms
of the contract were applied.40
The existing Boeing-IAM agreement was due to expire
on October 1. Contract negotiations commenced between
the IAM and Boeing in Seattle about August 3, 1971. I do
not regard these negotiations or the results as controlling in
any manner on the issues raised herein with respect to the
appropriate unit or the applicability of any union contract
during the times material. Nevertheless, the substance of
this evidence is described to indicate the prevailing rela-
tions between the parties.
During the negotiations, Boeing repeatedly raised the
question whether the IAM was bargaining for the ISS em-
ployees. In each instance, the IAM's position was stated
that the matter was in litigation where it was going to stay
until resolved, that it could not be settled at the bargaining
table, and that the negotiations should not be brought to
an impasse on something they could not handle there. In a
letter from Boeing to the IAM on October 22, inter aka the
statement was made.
40 By letter to Boeing on April 8, the lAM set forth its position "incident
to the day to day business of representing" the ISS employees affected by
the Boeing-IAM contract, including matters relating to dues deductions,
stewards zones, and seniority standing and listing of employees The letter
was to officially notify Boeing that the actions are taken "without implying
any recognition of the applicability of the Boeing Agreement to employees
in the ISS operation and are without prejudice to any action taken or
which may be taken relative to the extent of applicability (if any) of the
IAM Boeing Agreement to this unit
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are under the impression that [the ISS employ-
ees] are now represented in these negotiations but if it
is your position that they are not, we stand ready to
negotiate with any expanded union group that you
consider necessary to accomplish such representation.
The IAM made no reply to this assertion. On November
12, the parties entered into a nationwide agreement effec-
tive from December 13, 1971, through October 1, 1974,
with provision for yearly automatic renewal. The basic
terms of the previous Boeing-IAM contract were contin-
ued, including the identical descriptions of the units cov-
ered. Certain changes were negotiated in wages and other
terms which specifically affected the ISS employees. On a
question raised by Boeing, the IAM indicated that the ISS
employees would be permitted to vote on ratification of the
completed contract, their ballots would be impounded,
and, if these ballots affected the outcome, the matter would
then be taken up with the IAM headquarters for a determi-
nation as to disposition. Subsequently, the nationwide con-
tract was ratified without the necessity of counting the im-
pounded ballots of the ISS employees.
N. Conclusions
1. The successorship question
The Supreme Court's comprehensive decision on the
successor doctrine in Burns 41 was handed down on May
15, 1972, long after the material events herein. In a reversal
of the Board on one issue,42 the Court held that successor
employers are "not bound by the substantive provisions of
a collective bargaining contract negotiated by their prede-
cessors but not agreed to or assumed by them." Other as-
pects of the Court's opinion are discussed below
It is thoroughly evident in the present record that, during
the relevant period from the RFP through Boeing's take-
over on April 1, 1971, the parties, in their meetings and
communications with each other, assumed and maintained
fixed positions, leaving no area of substance for bargain-
ing. Boeing insisted that the Boeing-IAM (hardware) con-
tract with the wages and benefits therein, legally applied to
the ISS operation. Indeed, Boeing's proposal to NASA in-
corporated such a position and committed Boeing to the
labor costs predicated on the Boeing-IAM contract. For its
part, the IAM was equally insistent upon the applicability
of its contract with the incumbent, TWA, and it adamantly
rejected consideration of any reduction in the existing wag-
es and benefits therein. To a substantial degree, such a
reduction was reflected in the Boeing contract with which
the IAM was confronted. Thus, virtually from the outset,
Boeing and the IAM were in stalemated contract positions,
each depending on the correctness of its legal judgment at
the time. Undoubtedly the IAM then relied on the succes-
sorship doctrine extant in the Board's decision in Burns-
since overruled in part. There is no allegation in the com-
plaint (issued in May 1973) and, of course, it cannot now
be held in any circumstances, that Boeing was required to
adopt the TWA-IAM contract to which it did not agree.
41 N L R B v. Burns International Detective Agency, 406 U S 272
As pertinent here, the Supreme Court in Burns also de-
scribed certain bargaining obligations under the Act where
all the elements of successorship are present:
Although a successor employer is ordinarily free to
set initial terms on which it will hire the employees of
a predecessor, there will be instances in which it is per-
fectly clear that the new employer plans to retain all of
the employees in the unit and in which it will be appropri-
ate to have him initially consult with the employees' bar-
gaining representative before he fixes terms In other sit-
uations, however, it may not be clear until the succes-
sor employer has hired his full complement of
employees that he had a duty to bargain with a union,
since it will not be evident until then that the bargain-
ing representative represents a majority of the employ-
ees in the unit as required by Section 9(a) of the Act.
[Emphasis supplied.] 43
In the complaint and the briefs, there are basic issues
raised (a) whether all the required elements are present to
establish Boeing as a successor employer in an ISS bargain-
ing unit ; (b) if so, whether it manifested a "plan to retain"
within the meaning of the Burns case , by including in its
contract proposal to NASA a plan to hire 85.6 percent of
the incumbent ISS employees, or by other revelations of
intent; and (c) whether it violated the Act by failing initial-
ly to consult or bargain with the IAM before fixing the
employment terms for the ISS employees.
Upon careful consideration of the evidence and the case
precedents , my conclusions are negative as to each of these
questions.
a. Accretion contention, appropriate unit
If Respondent was legally justified in its overall position
based on the theory of accretion, the appropriate unit
would consist of all hourly employees employed by Boeing
at KSC, combining the new ISS employees with those al-
ready employed pursuant to Boeing's hardware contracts
with NASA. The wage rates and employment conditions
for the ISS employees would be fixed by the existing
Boeing-IAM agreement, thereby negating the allegations
herein of unilateral action by Boeing. For several reasons, I
find the accretion principle does not apply in the circum-
stances of this case. Respondent places heavy reliance on
the literal description of the stipulated unit for which the
IAM was certified in 1955 to represent the hardware (Bo-
marc) employees then employed at KSC, i.e., "all mainte-
nance and production employees in Brevard County." This
is an insufficient basis to warrant an unlimited expansion
of such a unit within the geographical area. It cannot be
construed that the parties had any intention to cover such
a group as the ISS employees in the existing Boeing-IAM
contract; and it can scarcely be found here that the ISS
employees desired their interests to be merged with those
of the "hardware" employees. Nor is it material that each
of the groups sought to be combined was historically repre-
sented (albeit with the different employers) by the same
41 182 NLRB 348 (1970), enfd in part 441 F 2d 914 (C A 2, 1971) 47 406 U S at 294-295
THE BOEING COMPANY
International union, the IAM-more especially in face of
the IAM's opposition to such accretion. However, the fact
that employment conditions of each group was governed
by different collective-bargaining agreements militates
against the accretion. The evidence indicates that the work
of the hardware group in missile launch support services is
separate and substantially different from the work of the
ISS group engaged essentially in housekeeping functions;
and there is no showing of product or employee inter-
change. Further, it should be realistically contemplated
that, as in the past, NASA may issue RFP's and subse-
quently award the ISS as well as the hardware or missile
projects separately to employers other than Boeing-thus
maintaining a consistency in the distinctive identity of the
two groups in question at KSC. Finally, it is a recognized
consideration in Board and court cases that, absent com-
pelling counterbalancing factors in the entire picture, "the
accreted unit should not numerically overshadow the pre-
existing unit," 44 and thereby deprive the larger group of
employees of their free choice in selecting a bargaining rep-
resentative. Here, Respondent had, at its risk, unilaterally
proceeded on an erroneous assumption that, as of takeover
on April 1, some 1,034 ISS employees could legally be ac-
creted to the hardware unit of 287 employees. As it devel-
oped, of the 1,034 employees hired, 632 were nonincum-
bents, as to whom there is no showing or basis for pre-
sumption in the evidence that they desired to be
represented by the IAM or by any union 45
b. Continuity of the employing industry 46
Primarily it is plain that NASA awarded Boeing the
same ISS operation as administered by the predecessor
contractor, TWA, with only minor variations in terms of
bargaining unit employees47 Inter aha, there was a contin-
uation of the same relations with NASA, the customer, and
of essentially the same services, plant, machinery , equip-
ment , and job functions. No material difference exists in
Boeing 's method of performing the ISS contract . An indet-
erminate number of supervisory incumbents was hired by
Boeing ; there is no evidence that the duties of Boeing's
supervisors are different from those who worked for TWA.
Further arguments of Respondent are unsupported-that
guards and nonguards were included in the TWA-IAM
unit, and that the unit contained supervisors, essentially in
44 Spartans Industries, Inc v N L R B, 406 F 2d 1002 1005 (C A 5. 1969),
enfg 169 NLRB 309 (1968) See also, e g, N L R B v Horn & Hardart
Company, 439 F 2d 674, 682 (CA 2, 1971), NLRB v Food Employers
Council, 399 F 2d 501 (C.A 9, 1968), International Paper Company, 171
NLRB 526, 527 (1968), Pullman Industries, Inc, 159 NLRB 580, 582 (1966),
Worcester Stamped Metal Company, 146 NLRB 1683, 1686 (1964)
45
Unquestionably, the Boeing-IAM contract was imposed on the [AM
against its will Any implications in Respondent's arguments that the Boeing
contract unit is appropriate by virtue of a tacit or de facto acceptance by the
IAM of such contract on and after April I. for the purposes herein, are
rejected Relating to the period subsequent to April 1, there are no com-
plaint allegations stemming from the application of the Boeing contract to
the ISS employees, and nothing herein is intended to pass on any such
questions.
46 A fundamental test to invoke the successor doctrine for purposes of the
Act E g, N L R B v Zayre Corp, 424 F 2d 1159 (C A 5. 1970), Hecker
Machine, Inc, 198 NLRB 1114 (1972)
47 Supra, fn 13
559
the ISS "lead" categories. The guard functions at KSC
were performed by Wackenhut Corporation, as a subcon-
tractor for TWA; and the guards were represented by a
union other than the TAM. The evidence, as litigated, does
not establish that there were supervisors in the TWA unit.
The TWA-IAM contract embraces a nationwide unit of all
transportation and other operations of TWA, apparently as
required under the Railway Labor Act. After TWA re-
ceived the award from NASA in 1964, the ISS project at
KSC was brought within the coverage of the TWA-IAM
contract. Significantly, the ISS project has been separately
recognized and identified in the successive agreements, 8
and the ISS employees thereunder have had local union
representation. I find it is no barrier to an appropriate unit
of the ISS employees that it would constitute a diminution
of the contract unit in effect under TWA 49 That the sys-
temwide TWA-IAM contract was governed by the Rail-
way Labor Act would not vitally impede the holding of
Boeing's successorship-in view of the factors already not-
ed, and since the Board's jurisdiction and application of
the Act's provisions are clear. Respondent's attempted at-
tack upon the legality of TWA's initial recognition of the
TAM, in 1964, is not properly litigable herein, particularly
by reason of Section 10(b).50 That the TAM had no Board
certification for the ISS unit at TWA does not preclude the
existence of a bona fide collective-bargaining relation-
ship. 51
As alleged in the complaint, I find that the ISS hourly
employees at KSC constitute an appropriate unit for the
purposes of collective bargaining under the Act.
Notwithstanding the foregoing positive factors, on the
essential question of Boeing's successor status, it is a most
important consideration whether or not a majority of its
ISS unit employees at the takeover consisted of TWA in-
cumbents represented by the IAM.52 Conceding that such
a majority was not employed, the complaint attributes the
failure of a majority to unlawful unilateral reduction of
wages by Boeing. These allegations are considered infra.
c. The "plan to retain " test of the Supreme Court
A new employer is not obligated by the Act to hire any
of the predecessor's employees unless it effectively assumes
48 E g, Solomon Johnsky d/b/a Avenue Meat Center, 184 NLRB 826
(1970), Ranch-Way, Inc, 183 NLRB 1168 (1970), 203 NLRB 911 (1973) (on
remand)
49Eg, Solomon Johnsky, supra, Howard Johnson Company, 198 NLRB
763 (1972), Bachrodt Chevrolet Co, 186 NLRB 1035 (1970), and 205 NLRB
784 (1973) (on remand), Dorrance J Benzchawel and Terrence D Swingen.
Copartners d/b/a Parkwood iGA, 201 NLRB 905 (1973), Eklund's Sweden
House Inn, Inc, 203 NLRB 413 (1973)
50 Howard Johnson Company, 198 NLRB 763, fn 3, Barrington Plaza and
Tra1niew. Inc, 185 NLRB 962 (1970)
5 E g, Howard Johnson Company, id, Eklund's Sweden House inn, Inc,
supra
52 Burns, supra. at fn 4, N L R B v Interstate 65 Corp d/b/a Continental
Inn, 453 F 2d 269, 273 (C A 6 1971), Spruce Up Corporation, 194 NLRB
841, 847 (1972), Dorrance J Benzchawel and Terrence D Swingen. Copart-
ners d/b/a Parkwood IGA, 201 NLRB 905 (1973), Bachrodt Chevrolet Co.
205 NLRB 784 (1973). Where successorship was denied in the absence of
such a majority, see, e g, Tallakson Ford, Inc, 171 NLRB 503 (1968), Thom-
as Cadillac. Inc, 170 NLRB 884, 885 (1968), affd 414 F 2d 1135 (C A D C.
1969), cert denied 396 U S 889 (1969) But cf, Lincoln Private Police, Inc,
etc 189 NLRB 717, 720 (1971)
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such an obligation or is discriminatorily motivated in its
refusal to employ such employees.53 And a successor em-
ployer is ordinarily free to set initial terms under which it
will hire the predecessor's employees. However, the Gener-
al Counsel particularly relies on the caveat in Burns that
. , . there will be instances in which it is perfectly
clear that the new employer plans to retain all of the
employees in the unit and in which it will be appropri-
ate to have him initially consult with the employees'
bargaining representative before he fixes terms... .
Although the derivation of this statement in Burns is not
clear, such a dictum of the Supreme Court, in the context,
must be accorded full respect. Nevertheless, it cannot be
understood that the Supreme Court in this manner is de-
parting from the central collective-bargaining concept in
the Act based on the majority principle.54 The "plan to
retain" language in Burns must contemplate that the union
involved represents a majority of the unit employees of the
successor employer before a refusal to bargain violation
may be found on this ground. Thus, to be "perfectly clear,"
a successor employer's "plan to retain" all or a substantial
majority 55 of the employees of the predecessor must rea-
sonably mean a commitment to hire or an actual advance
hiring of such employees to be effective at the takeover of
operations.56 For purposes of the Act, such a majority is
thereby shown at the time of the commitment. However, as
the Court further stated, in other situations it may not be
clear whether the bargaining representative represents a
majority of the employees until the successor employer has
actually hired its complement of employees, and only at
such time does the bargaining obligation mature if a major-
ity is established.57 Where the predecessor's employees
constitute a majority of the unit "both before and after the
transfer of ownership," 58 the earlier revealed "plan to re-
tain" is reinforced and made manifestly clear. In my opin-
ion, it is some indication of the lack of perfect clarity in the
53 Golden State Bottling Co v NLRB , 414 U S 168 (1973) at In 6, citing
Burns, 406 U S at 280, In 5
54 See International Ladies' Garment Workers' Union, AFL-CIO [Bern-
hard-Altman Texas Corp ] v N L R B, 366 U S 731, 737 (1961)
55 E g , Alliance Industries, Inc, 198 NLRB 646 S-H Food Service Inc , 199
NLRB 95 (1972), i e, less than literally all
56 E g., Howard Johnson Company, 198 NLRB 763 (1972), Bachrodt Chev-
rolet Co, 205 NLRB 784 (1973), No H Denham and Gerladine A Denham,
d/b/a The Denham Company, 206 NLRB 659 (1973) No 75 And Cf
Ranch-Way, Inc, 203 NLRB 911 (1973), in which, during a hiatus before
takeover, the new employer interviewed incumbent employees, and others,
for the jobs to be filled before it decided whom it would hire, only those
who accepted the offered wage rates were hired In the latter case, the
alleged violation based on the contention of a "plan to retain" before fixing
terms was rejected, in the former cases, the violation was found
57 The Supreme Court distinguished the facts in the Burns case from ap-
plication of the "plan to retain" standard After Burns, as a successor, took
over operations on July 1, the unit employees received a lower rate than was
paid by the predecessor During June, it had completed its hiring in the unit
with a majority of the predecessor's employees The Court held there was no
"evidence that Burns ever unilaterally changed the terms and conditions of
employment it had offered to potential employees in June after its obliga-
tion to bargain with the union became apparent" 406 U S at 295
58 E g, Good Foods Manufacturing & Processing Corporation, etc, 200
NLRB 623 (1973), Bachrodt Chevrolet Co, 205 NLRB 784 (1973) And see
Ranch-Way, Inc, supra, In 56, where the obligation to bargain attached
only after the successor began operations
initial "plan to retain" where, absent discriminatory cause,
there is in fact no majority after the takeover or when hir-
ing is effectively completed.
Various other considerations operate to defeat the Gen-
eral Counsel's major contention that Boeing invoked such
a "perfectly clear" plan to retain a substantial majority of
the TWA incumbents, and that it violated the Act by fixing
the wages and terms of employment in the ISS unit without
initially consulting with the IAM. In its competitive pro-
posal to NASA on August 19, 1970, Boeing incorporated a
primary staffing plan to hire 85.6 percent of the ISS incum-
bents at specified wage rates and labor costs substantially
lower than the existing terms for the employees under
TWA.59 It is a realistic fact that the plan to hire and the
lower terms were simultaneously and inextricably linked in
Boeing's proposal. Boeing was free to hire or not hire the
incumbents and to require applications 60 Even assuming a
basis for accurate projection in Boeing's staffing plan, it
could not be regarded that the mere submission of its pro-
posal to NASA constituted proscribed conduct of unilater-
ally changing terms of employment. Despite Boeing's de-
tailed reasons in the proposal to support this staffing plan,
such an attempted prediction of ability to hire union-repre-
sented skilled employees at sharply reduced earnings was
inherently dubious. An alternative plan relying on re-
searched nonincumbent sources was included in the pro-
posal as an assurance that full staffing could be accom-
plished within the scheduled time. In the awareness of the
IAM and the employees, Boeing's intentions to hire the
incumbents were tied to the lower rates and benefits of the
Boeing-IAM contract. And they knew that employment
applications were required. I do not find that, in the pro-
posal to NASA or in any other form, was an employment
commitment made by Boeing to the incumbent employees.
While there is an indicated disposition of Boeing to have
initially preferred TWA incumbents on a selective basis in
the light of available classification vacancies, applications
from others, and time targets, it cannot be held that Boeing
was thereby obligated to hire any incumbents individually
or as a class And there was certainly not, in my view, a
"perfectly clear" plan to retain a majority of the incum-
bents within the intendment of Burns. Accordingly, Gener-
al Counsel has not sustained the allegation that Boeing had
unilaterally changed employment terms in violation of Sec-
tion 8(a)(5).6t
59 As earlier noted, the 85 6 figure pertained to all categories in the ISS
pr%ect, and was not related specifically to the unit employees
E g, Tn State Maintenance Corp v N L R B, 408 F 2d 171, 173 (C A
D C 1968)
61 Respondent argues the "impracticality" of requiring bidders on com-
petitively bid contracts to bargain concerning unilateral changes submitted
in the bid As to Federal Government contracts, perhaps the problem has
been largely alleviated in the 1972 amendment to the Service Contract Act,
supra. so far as wage reductions are concerned Assuming the Board's power
to do so, there appears no valid reason to exempt such employers from the
full bargaining requirements of the Act The facts in each case would be
determinative as to when the bargaining obligation matures See Emerald
Maintenance, Inc, 188 NLRB 876 (1971), cited and quoted in Burns, 406
U S at In 13 And cf, Atlantic Technical Services Corporation, 202 NLRB
169 (1973)
THE BOEING COMPANY
2. The alleged "strike"
The complaint alleges that, from December 5, 1970, to
February 19, 1971, a "majority" of the TWA employees
engaged in a "strike" against Boeing by concertedly with-
holding their employment applications. On the theory that
they were unfair labor practices strikers or, alternatively,
economic strikers , the General Counsel seeks reinstatement
and backpay for all incumbents who were not hired by
Boeing, presumably omitting only those who were retained
by TWA. As found, the alleged prior unfair labor practice
by Boeing of engaging in unilateral action has not been
sustained.
There is no testimony from employees themselves that
any of them withheld their applications, concertedly or
otherwise, as a means of putting economic pressure on
Boeing. During or following the supposed period of the
strike, there was no express or implied communication to
Boeing of the existence of such a strike from any employee
group acting in concert, or from Local 773, or the Interna-
tional IAM. There is no identification of any individual
employees, or recognizable group, to constitute the alleged
"majority" of incumbents who were purportedly on strike.
And there is no evidence to support the General Counsel's
allegation that an unconditional request was made to
Boeing on February 19 for reinstatement of TWA employ-
ees who had not theretofore filed applications.
The basis of General Counsel's position is far from clear.
It is apparently rested on the letters, communications, and
notices from Lcoal 773 to its membership and from the
evidence that a large number of applications were submit-
ted later in March. The detailed facts need not be reiterat-
ed. From the outset, it was the mandatory policy of the
International, with its agents on the scene at KSC, to have
the applications filed; and it cannot be inferred that the
officers of Local 773 deliberately sought to flout this poli-
cy. One item largely relied on by the General Counsel is
the letter of December 22 to employees from D'Andrea,
Local 773's president. The statement therein that the Inter-
national had "advised" Local 773 that applications should
not be turned in was an admitted error, which the Interna-
tional quickly undertook to rectify It is noted that, in the
same letter, instructions are given to "those people who feel
they must fill out an application." This, in my opmon, is
hardly a call for concerted action against Boeing. There
was no opposition from Local 773 to the "Declaration of
Interest" questionnaire distributed to all TWA hourly em-
ployees on December 1. Only about 500 of the responders
indicated by December 18 that they desired employment
with Boeing. Notwithstanding the alleged call for "strike"
action by Local 773, it appears that 435 incumbents filed
applications by February 19, the date of the asserted "re-
quest for reinstatement." The IAM itself forwarded appli-
cations of incumbents on December 22 and thereafter,
with a reservation based on claimed rights under the TWA-
IAM contract . Some references are made in minutes of
meetings and notices to members of only a "preference" by
561
Local 773 that applications not be filled out. Indeed, in
early January, the members were advised in a positive vein
to turn in their applications to officers of the Local. Re-
peated emphasis was placed in communications to the
members in January that "no company" had been awarded
the ISS contract "now held by TWA," and that no award
could be made before final decision on the protests before
the Comptroller General. Additionally, during the same
period of the alleged "strike," the TWA employees were
often reminded by TWA, engaged in the recruitment for
Boeing, that its protests were being pursued and that it
strongly believed its claims to be valid. The employees
were also aware of the lawsuits pending and the efforts to
seek Congressional assistance. In this whole context of evi-
dence, the particular reasons of any employees for not fil-
ing applications for employment with Boeing can only be
speculated. The outstanding circumstances were that
Boeing was offering substantially lower wage rates and
benefits,62 and that the TWA employees were aware of the
IAM's vigorous stand in support of the binding effect of
TWA-IAM contract on Boeing-an erroneous assumption
as it later turned out in Burns. It is difficult to conceive in
terms of the law the attainment of superior rights by poten-
tial applicants for concertedly refusing to seek employment
with an employer who is offering unacceptable wages and
conditions.
In certain limited circumstances, applicants for employ-
ment are deemed employees under the Act, for example as
protection against discrimination in hiring by the employ-
er.63 In the present context, such a concept would be ex-
ceedingly strained. Even if it be assumed that certain of the
incumbents engaged in an economically motivated con-
certed activity by withholding their applications, upon the
cessation of such action, they would not be entitled to dis-
place employees hired during the period of the concerted
activity. Nor, in my opinion, would they be entitled to pref-
erence in hiring as against other existing applicants. It is
not alleged or found that Boeing deliberately refrained
from hiring a majority of the ISS incumbents to avoid suc-
cessorship or for discriminatory reasons.
In sum, I conclude there is no merit to the allegations
that TWA employees engaged in a strike or protected con-
certed activity against Boeing, or that they were unlawfully
refused "reinstatement" on or after February 19. While, as
already shown, there is no complaint allegation of a gener-
al refusal to bargain, it may finally be noted that the IAM
was not properly the majority representative in the ISS unit
on, before, or after March 12, when it presented Boeing
with a formal request for recognition in such unit. I per-
ceive nothing else under the complaint to warrant remedial
action.
Accordingly, it is hereby recommended that the com-
plaint be dismissed in its entirety.
62 In his deposition, D'Andrea indicated that, by withholding their appli-
cations, the "people" were showing "that they didn't want to work for the
wages Boeing was offering," and felt that the TWA-IAM "contract that
the
6
1 had should be upheld "
Phelps Dodge Corp v N L R B, 313 U S 177