Boeing Airplane Company, a Corporation, Successor To Boeing Aircraft Company, a Corporation, And Its Agent William M. Allen And Aeronautical Industrial District Lodge No. 751, International Association Of Machinists (ind.), 447 (1948)

Docket Number: 19-CA-95

Parts: 477

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In the Matter of BOEING AIRPLANE COMPANY, A CORPORATION,

SUCCESSOR TO BOEING AIRCRAFT COMPANY, A CORPORATION, AND ITS AGENT WILLIAM M. ALLEN and AERONAUTICAL INDUSTRIAL DISTRICT LODGE No. 751, INTERNATIONAL ASSOCIATION OF MACHINISTS (IND.) Case No. 19-CA-95.-Decided November 2, 1948.

DECISION AND ORDER On July 20, 1948, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and 8 (a) (5) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Union filed a brief in support of the Intermediate Report.

On October 19, 1948, the Board heard oral argument at Washington, D. C., in which the General Counsel, the Respondent, and the Union participated.1 Thereafter the Respondent and the Union filed supplemental briefs.

The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.

The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, the contentions advanced at the oral argument, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as they are consistent with this Decision and Order.

1 Board Member Houston, who was not present at the oral argument, has read the transcript of that proceeding.

1. The effect of Section 8 (d) The Trial Examiner found, and we agree, that on and after April 25, 1948, the Respondent refused to bargain with the Union in violation of Section 8 (a) (5) and Section 8 (a) (1) of the amended Act. With respect to the contention of the Respondent 2 that at the time of its refusal to bargain the strikers had lost their status as 'employees' because of the failure of the Union to comply with Section 8 (d), the Trial Examiner found, inter alia, that the Union had substantially complied with the requirements of Section 8 (d)3 of the amended Act before it resorted to strike action on April 22, 1948. However, we do not pass upon the question of whether the Union had met the requirements of Section 8 (d), inasmuch as we are of the opinion that under the particular circumstances involved herein compliance with Section 8 (d) was not required.

We find, as the record shows,4 that on March 16, 1946, the Union and the Respondent entered into a collective bargaining agreement which provided that the contract 'shall be and remain in full force and effect from the 16th day of March 1946 to the 16th day of March 2The Resnondent's position may be summarized as follows: (1) Section 8 (a) (5) makes it an unfair labor practice for an employer 'to refuse to bargain collectively with the representatives of his employees, subject to the provisions of Section 9 (a).' (2) Under Section 9 (a) a labor organization can only be representative of 'employees.' (3) The Union failed to comply with the requirements of Section 8 (d), inter alia, by engaging in a strike within the 60-day waiting period specified in 8 (d) (4), as a result of which the employees lost their status as 'employees' for the purposes of Sections 8, 9, and 10 of the amended Act. (4) Since the Union no longer represented its 'employees,' it no longer possessed representative status, and the Respondent was free to refuse to bargain with it. (5) Such refusal does not violate Section 8 (a) (5).

SThe relevant provisions of Section 8 (d) of the Act, as amended, provide that:..

Where there is in effect a collective bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modifications;

(2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;

(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time;

and (4) continues in ful...

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