Boeing Co. v. N.L.R.B.
| Decision Date | 11 September 1978 |
| Docket Number | I,No. 77-2674,AFL-CI,77-2674 |
| Citation | 99 LRRM 2847,581 F.2d 793 |
| Parties | 99 L.R.R.M. (BNA) 2847, 84 Lab.Cas. P 10,850 The BOEING COMPANY, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent. and Local 286-W, International Union of Operating Engineers,ntervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bruce M. Cross (argued), of Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., for petitioner.
Steven B. Frank (argued), Seattle, Wash., for intervenor.
Petition to Review and Set Aside Decision and Order of the National Labor Relations Board and Cross-Petition for Enforcement of the Order.
Before DUNIWAY and WRIGHT, Circuit Judges, and KUNZIG, * Judge.
This case, involving a challenge to a National Labor Relations Board (NLRB or Board) interpretation of the recognition clause in a Collective Bargaining Agreement between the Boeing Company (the Company) and Local 286-W, International Union of Operating Engineers, AFL-CIO (the Union), is before the court on the Company's petition for review of a Decision and Order of the Board issued on July 8, 1977 230 N.L.R.B. ---, and on the Board's cross-application for enforcement of its Order. Because we agree with the Company that the Board's questioned interpretation has the effect of extending a standard "Recognition Clause" into an unbargained-for "Jurisdictional Clause," we grant the relief sought by the Company and deny enforcement of the Board's Order.
The Company is a major manufacturer of hydrofoils, which are produced at its Seattle, Washington plant. The process of piecing together the hydrofoil requires sheets of aluminum to be cut, fitted together, and then "tack" welded to hold them in place, pending the final welding. In an effort to produce hydrofoils more efficiently, the Company decided to train a number of "cutters and fitters," represented by the International Association of Machinists and Aerospace Workers, Local 751, to do tack welding so that they could perform the minimal number of such welds required incidental to their main tasks of cutting and fitting. The Company informed the Union of its intention, but the Union refused to assent to such cross-training on the grounds that all such work should, under the Company/Union Collective Bargaining Agreement (the CBA), be assigned to the Union.
Certain tack welds, it appears, did become part of the final welds in the production of hydrofoils and tack welding does require the same garden variety of skills as does the final welding. In early 1959, the N.L.R.B. had determined that those employees qualified to do all welding (tack welding And final welding) constituted a "craft group" and separated them from the existing maintenance and production workers, enabling the Union to become their representative. The Board based its decision on the fact that qualified welders "performed skilled work, subject to rigid inspection, and require a long period of on-the-job training and experience." The training required by the cutters and fitters to enable them to do only tack welds, however, consisted of only a two-week training period. Thus they had only a fraction of the welding skills required of a full production welder.
In the current dispute, the N.L.R.B. found that, during all contract negotiations since the initial 1959 certification of the Union as the Bargaining Unit Representative of the welders, neither the Union nor the Company ever discussed any of the welders' specific duties, or tack welding in particular, and that they never considered the question of assignment of welding unit work, or tack welding in particular, to non-unit employees; whenever a dispute arose over job classifications or specific jobs, the parties petitioned the Board to clarify the unit. On two previous occasions, the Board had excluded, from the jurisdiction of the Union, employees who performed "welding" type operations, but "were easily trained," "were not required to (have) . . . the complex of welding skills", or "were not required to be certified by the government." In 1974, however, certain employees were included in the Union's bargaining unit because they were "required to exercise traditional welders skills."
The CBA in effect at the time of the alleged violation now in issue once again had no clause expressly assigning particular job functions to welders. It did, however, contain the standard bargaining unit description found in previous CBAs and in the Board's certification. 1
The Board, acting on the Union's charge against the Company, found that the Company's action in assigning some tack welding work (a maximum of 5% of any cutters' or fitters' working hours) to non-Union workers constituted violations of subsections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1)-(a)(5) (1970).
The Administrative Law Judge by whom this dispute was initially heard determined that only four of the 14 tack weld-trained employees had actually performed tack welding operations and that they had worked at tack welding for only about 45 total hours before the Company ceased the practice because of a cutback in production. He further found that certain other non-Union employees had performed tack welding functions sporadically over several years without Union complaint (and possibly without Union knowledge) and that several non-Union-represented Company job descriptions listed "tack welding." However, he determined that, as a whole, all the Company's welding work since 1959 had been performed by Union employees.
In addition, he ascertained that, although no Union-represented employees lost work hours or were laid off because of the Company's change of policy, there were Union-represented craft welders already in a laid-off status who could have been reemployed to perform the tack welding.
His conclusions are best summed up in his own words:
Therefore, I find that tack welding has been a part of the contractual bargaining unit during the history of Respondent's bargaining relationship with the Union and that it is work which belongs to the employees whom the Union represents under the existing collective-bargaining agreement with Respondent.
The N.L.R.B. affirmed and adopted his decision and his order. The Company petitioned this court to review and set aside the Board's decision and order and this court assumes jurisdiction, pursuant to subsections 10(e) and 10(f) of the Act, 29 U.S.C. § 160(e)-(f) (1970).
The main issue in this case is dramatically pointed out by the positions taken by the parties before this court. Stripped of all subsidiary arguments, the Union and the Board, emphasizing the categorization "welder," go to great lengths to establish the logical progression necessary to make the cutters and fitters who were doing the tack welding into "welders." The tack weld, they argue, requires a certain expertise available only within the craft designation "welder"; the tack weld, historically at Boeing, has always been performed by welders; the reassigned tack welding was more than a De minimis portion of the work performed by the employee to whom it was assigned; and whenever there has been a dispute over whether someone is a "welder," within the meaning of the recognition clause, the parties have come to the Board for a clarification of the bargaining unit. The Union and Board then make the logical jump of saying that, because of these demonstrated relationships between "tack welding" and "welders," the Company implicitly agreed to assign all tack welding to "welders" represented by the Union (and, thus, not to cutters or fitters represented by another union) when it explicitly agreed, in the recognition clause, that all "welders" should fall within the bargaining unit represented by the Union. From there, it is an easy step to reason that any attempt to reassign tack welding constituted a mid-term modification of the CBA which, when made without the consent of the Union, constituted an unfair labor practice. Since the Board has wide discretion and expertise, their argument concludes, since the parties here have historically resorted to the Board in disputes over job classifications or specific jobs, and since substantial record evidence indicates that the Company actually did assign some welding functions to non-union members, the decision of the Board should be affirmed and its order enforced.
The Company, on the other hand, charging the Union and Board with arguing in "non-sequiturs," concentrates on the Function of "tack welding" and asserts that nowhere in the CBA is any function, especially the function of tack welding, granted exclusively to employees represented by the Union and that there is nothing in the CBA even remotely resembling such a ...
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