The Boeing Co.

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