Boeing Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Boeing Company and Local No. 286-W, Interna- tional Union of Operating Engineers, AFL-CIO. Case 19-CA-8208 July 8, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On March 7, 1977, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel and Charging Party filed briefs in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, The Boeing Company, Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule 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 Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. I In the remedy section of his Decision, the Administrative Law Judge inadvertently omitted reference to F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (196%2), for the hackpay computation formulas. Regional Director for Region 19 of the National Labor Relations Board issued a complaint and notice of hearing, based upon an unfair labor practice charge filed on December 4, 1975, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C., § 151, et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record, upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION At all times material, The Boeing Company, herein called Respondent, has been a Delaware corporation, with office and place of business located at Seattle, Washington, and has been a major manufacturer of aircraft, missile, and aerospace products. During the 12-month period preceding issuance of the complaint, which period is representative, Respondent sold and shipped finished products valued in excess of $50,000 from its Seattle facility to points outside the State of Washington and, in addition, purchased goods and materials valued in excess of $50,000 which were delivered from outside the State of Washington directly to Respondent's Seattle facility. Therefore I find, as admitted in the answer, that at all times material, Respondent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED At all times material, Local No. 286-W, International Union of Operating Engineers, AFL-CIO,' herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. At all times material, International Association of Machinists and Aerospace Workers, Lodge 751, herein called Intervenor, has been a labor organization within the meaning of Section 2(5) of the Act.2 III. ISSUE DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: This matter was heard by me in Seattle, Washington, on January I I and 12, 1977. On January 20, 1976, the I As amended. 2 This finding is based upon the evidence showing that Intervenor has been representing its members, production and maintenance employees employed by the Respondent, through, inter alia, successive collective- 230 NLRB No. 94 Whether Respondent violated Section 8(d) and Section 8(aX5) and (1) of the Act by assigning to employees represented by Intervenor work which had previously been performed by employees represented by the Union, without the latter's agreement, acquiescence, or approval? bargaining agreements with Respondent. The basis for the intervention was, as discussed below, the fact that the work in dispute has been assigned to employees represented by Intervenor. 696 THE BOEING COMPANY IV. THE ALLEGED UNFAIR LABOR PRACTICE A. Background In The University of Chicago, 210 NLRB 190 (1974), cleaning work had been allocated historically between two labor organizations. During the term of a collective- bargaining agreement with one of those labor organiza- tions, the employer transferred the cleaning work which the employees represented by that labor organization had been performing to the unit for which the other labor organiza- tion served as the representative, in the process laying off the employees who had been performing that work, although giving them an opportunity to be rehired within the classifications represented by the labor organization whose members were now to perform the added work. The Board concluded that the employer had violated the Act by modifying the provisions of its collective-bargaining agree- ment, during its term, over the objections of the other party to that agreement. "The Board has also held that an employer acts in derogation of his b:rgaining obligation under Section 8(d), and hence violates Section 8(a)(5), when he unilaterally modifies contractual terms or condi- tions of employment during the effective period of a contract - and this even though he has previously offered to bargain with the union about the change and the union has refused." C & S Industries, Inc., 158 NLRB 454, 457 (1966). In arriving at its decision in University of Chicago, supra at 190, the Board made two subsidiary points. First, that the practice of "allocating cleaning areas between the two locals was an inextricable, albeit inexplicit, part of the bargaining history that led up to Respondent's contract with Local 321 and was necessarily embodied in the contract's recognition clause." Second, although "as an accommodation to management's responsibility for deter- mining the allocation of the firm's capital investment," employers were not absolutely barred, under recognition clauses, from terminating work at a particular location and subcontracting or transferring it elsewhere, nor from introducing different methods of operation at the same location, this accommodation did not extend to situations where work was to continue being performed at the same location by the employer's own employees. There is very little difference between the operative factors in the instant case and those presented in University of Chicago. Thus, since being certified in 1959, the Union has been the representative of Respondent's employees, throughout the State of Washington, in a unit of welders. It has been employees represented by the Union who have performed all tack welding3 functions, with certain exceptions described below, since issuance of that certifica- tion. In 1972, Respondent commenced production of military and commercial hydrofoils, an operation that, in early 1976, came to be denominated as the marine systems division. Hydrofoils are produced by cutting and fitting parts which are ultimately assembled into the finished I Tack welding is a welding process performed with a hand-held device for the purpose of temporarily holding together two pieces of metal. The method used to perform this work may consist either of making the tack weld at the point of contact of the two assembly parts. in which event the tack weld will be obliterated ultimately and become part of the permanent structures. In the process, every final weld requires some tack welding and, since commencement of the production of hydrofoils, all tack welding in the marine systems division had been performed by employees in the Union's unit until December 17, 1975. The current collective- bargaining agreement between Respondent and the Union became effective on February 2, 1975, and is to remain effective until December 15, 1977, with provision for annual renewal absent notice of intent to terminate the agreement. In the fall of 1975, Respondent made a decision to train employees represented by Intervenor to perform some tack welding, incident to their primary functions of cutting and fitting parts, in order to eliminate inefficiency in the production of hydrofoils. Respondent notified the Union of this decision and on October 8, 1975, representatives of both parties met to discuss the proposed reassignment of tack-welding work. However, the Union opposed any reassignment and the meeting adjourned without agree- ment on the reassignment. The parties stipulated that Respondent's decision to reassign the work was economi- cally motivated and that absent the existence of a collective-bargaining agreement, Respondent satisfied any bargaining obligation for which it was responsible. Notwithstanding the absence of the Union's consent to the tack-welding work transfer, Respondent implemented its decision by providing 2-week training courses for a total of 14 employees represented by Intervenor. Training was provided for both of the types of tack welding described in footnote 3, above. Upon completion of training, these 14 employees were qualified to perform both types of tack welding satisfactorily, although they possessed only a fraction of the skills required to be a production welder. Yet, only 4 of the 14 trained employees have actually performed any tack welding in the marine systems division. That which they have performed has been mostly of the type involving attaching brackets or tiedown straps temporarily to a metal part to hold it in place for ultimate welding to another part. Collectively, they performed only 45 total hours of tack welding in the marine systems division from December 16, 1975, through February 13, 1976. However, though no employees represented by Intervenor have subsequently performed tack welding in the marine systems division, this has been due only to a production cutback and the schedule of production. Respondent "believes it has the right to assign tack welding now being performed by employees represented by [the Union] to these or other [Intervenor] represented employ- ees in the future as dictated by the needs of the business and incidental to their primary job functions," although Respondent also "believes that, on the average, no [Ilntervenor] employee will be performing tack welding work in excess of 5 percent of his or her time." weld, or, alternatively. of attaching brackets or tiedown straps temporarily to a metal part to hold it in place for ultimate welding to another part, in which event the bracket or strap and tack weld will be removed after the final weld is completed. 697 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Contractual Bargaining Unit As all parties agree that Respondent satisfied any bargaining obligation owed the Union absent the existence of a collective-bargaining agreement, the obvious threshold question is whether it may be found that the current agreement embodies tack welding in the contractual unit. In this regard, it should be noted at this point that the United States Court of Appeals for the Seventh Circuit denied enforcement of the University of Chicago case, characterizing the "necessarily embodied in the contract's recognition clause" holding as a "novel theory." University of Chicago v. N.L.R.B., 514 F.2d 942, 944 (1975). However, in contrast to the situation presented in that case, the contractual bargaining unit in the instant case is based upon a certification. Accordingly, the instant case more strongly favors the result reached by the Board in University of Chicago. At the commencement of 1959, Intervenor represented all welders employed by Respondent as part of a statewide unit of production and maintenance employees. In Febru- ary of that year, the Board concluded that a unit of welders was an appropriate craft bargaining unit inasmuch as such employees "perform skilled work, subject to rigid inspec- tion, and require a long period of on-the-job training and experience." 4 The craft nature of this bargaining unit has been perpetuated in subsequent years, with the parties resorting to the Board for clarification of the unit whenever either classifications or specific jobs became the subject of dispute and with the Board resolving those disputes primarily on the nature of the skills and duties involved. Thus, in August 1959, the Board excluded Automatic Fusion Welding Machine Operators from the unit because they were easily trained to operate automatic machines, were not required to possess nor to exercise the complex of welding skills exercised by certified welders, and did not take military tests nor receive military certifications. 5 Similarly, in 1966, the Board concluded that employees in five classifications should be excluded from the unit because they "neither possess nor exercise the complex of skills utilized by the welding craft, are not in the line of progression for such craft, and are separately located and do not work with the welders .... 6 Finally, in September 1974, the Regional Director issued a Decision and Order, based upon a petition filed by Respondent, finding that the operators of four types of welding machines should be included in the unit as they "must 4 Case 19-RC-2194 (unpublished). s 124 NLRB 689. Two other classifications were excluded on the ground that, although they did perform some welding functions, they did not perform a sufficient amount to be "primarily engaged in craft work." 6 157 NLRB 848. 851. 7 19-UC-115 (unpublished). An operator of an Airco gas tungsten arc welding machine at Respondent's Auburn, Washington, plant would also have been included in the unit but for the fact that the machine had historically been operated by employees represented by Intervenor. Since the inclusion of this operator in Intervenor's unit would not be contrary to the policies of the Act, the Board would not disturb the historical inclusion of this machine in the unit, even though it would have included the machine operator in the Union's unit were it deciding the matter initially. See. e.g., National Gypsum Company, 220 NLRB 551. 555(1975). s Thus, art. 1, sec. 1.1 of the current agreement was changed to correspond with the unit description, as clarified in Case 19-UC- 115: observe the weld, visually or aurally, and make adjust- ments throughout the welding process in such variables as travel speed, arc voltage, arc gap, current, and amount of filler material, as well as further adjustment for tracking of the welding seam or for variations in thickness of material, mismatch or gap between the pieces to be welded together."7 Consequently, since 1959, the bargaining unit has remained a craft unit, the scope and composition of which has been governed under Board principles concern- ing such craft units. The latter is significant, for all agree that the subject of tack welding, the assignment of tack welding to employees represented by Intervenor, and the assignment of welding bargaining unit work to employees other than those represented by the Union have not been matters discussed during negotiations. Indeed, there is no evidence that the parties have ever even considered any of the specific duties of welders during their negotiations. What the bargaining history does show is that from "February 20, 1959, to date, the applicable recognition clauses in the [Union's] (or its predecessor's) contracts with Respondent were identical to the bargaining unit descriptions as found in the then most recent NLRB certification." s Consequently, what the parties have been doing is to conform, without discussion, their contractual recognition clauses to the Board's conception of the scope and composition of this craft unit, returning to the Board for clarification whenever problems were posed by the duties performed by employees or whenever new techniques arose. In other words, the Union and Respondent have designedly based their contractual recognition clauses upon the Board's principles for deter- mining the parameters and the composition of the unit. Under Board principles, tack welding is includable in craft welders' units. I base this conclusion upon the fact that, while I have found no case excluding tack welding or those who perform it from a craft welding unit, there are two cases where the Board decided upon inclusion. In The Douglas Aircraft Co., Inc., 16 NLRB 93, apprentices and helpers who performed principally tack welding were included in a craft unit with welders and cutters. In Northrop Aircraft, Inc., 42 NLRB 1109, employees classi- fied as tack welders were included in a unit of oxy- acetylene, oxy-hydrogen, and electric arc welders. Conse- quently, since the parties have intended their contractual unit to be governed by Board principles, it is clear that tack welding is a part of the contractual unit for which the Union is the representative, as such work is normally All welders, including research, high strength, production, burner, gas and arc, maintenance A and maintenance B welders, welder leadmen, burners' apprentices and helpers, and including all employees operating machine welding equipment where, in the operation thereof and in the process of the weld, based on the employees' sight or sound observations, the equipment may require adjustment in variables such as travel speed, arc voltage, arc gap, current, amount of filler metal being fed into welding puddle, seam tracking or adjustment for variations in the thickness of material, mismatch or gap, in order to produce a satisfactory weld, employed by the Employer at its plant and operations located in the state of Washington, excluding automatic fusion welding machine operators, sheet metal worker and welder maintenance C employees, employees operating the Airco gas tungsten arc welding machine at the Employer's Auburn, Washington plant, office clerical employees, professional employees, guards, all other employees, and supervisors as defined in the Act. 698 THE BOEING COMPANY included in a craft unit of welders, under Board principles. Indeed, it is abundantly clear that tack welding has been considered an integral part of the unit in the instant case, for it is the welders themselves who have been performing this work. Several additional factors tend to support the conclusion that Respondent did consider tack welding to be part of the contractual unit. First, until December 1975, all tack welding in the marine systems division had been performed by welders. Indeed, Respondent acknowledged the right of these employees to tack welding work when it notified the Union of the proposed reassignment and acknowledged its obligation to bargain concerning the matter. In fact, at no point has there really been a dispute about the inclusion of tack-welding work in the Union's bargaining unit. The basic dispute has been over the point in time at which Respondent becomes free to reassign that work. Second, Respondent argues that tack welding has been performed by employees represented by Intervenor at locations other than the marine systems division. However, examination of Respondent's evidence on this point tends merely to reinforce the conclusion that tack welding was considered a part of the Union's unit work. Thus, while Tulalip Test Site Supervisor Robert Lominick testified that he had assigned tack welding at that location to propellant test mechanics, represented by Intervenor, his testimony concerning these incidents was extremely vague. His inability to recall anything very specific about these incidents leads me to conclude that they were at best sporadic and of extremely short duration. More important, Lominick conceded that he had cleared making such assignments with Carl H. Holder, the lone welder and formerly Union's steward at Tulalip, obtaining Holder's consent to these assignments: "I had a a conversation with him [Holder] most any time that it ever occurred. I would imagine that I talked it over mostly with him probably ninety percent of the time that it occurred." In this respect, Lominick's testimony corroborated that of Holder, who asserted that he had never observed propellant test mechanics doing tack welding "without my permission." In these circumstances, the performance of tack welding work by propellant test mechanics at Tulalip appears to have been no more than sporadic, of brief duration, and undertaken only after securing the consent of the Union's steward. While the Union may not have wanted such consent to be accorded, it is clear, if for no other reason than that Lominick returned to Holder on each occasion where such assignments were to be made, that Holder's consent was limited to each occasion and cannot be relied upon as "clear and convincing" evidence that Respondent was accorded the right to make such assignments without restriction at all times and locations throughout the State of Washington. Lominick also testified that an automotive mechanic, represented by Intervenor, at Tulalip did welding "that's necessary to support or . . . keep the mobile equipment operational . ... If a bracket or a brace or something breaks on a jitney or a piece of mobile equipment, he repairs it, or an automotive type piece of equipment, 9 Engineers have also performed welding work. According to the Seattle area labor relations manager. Charles E. Bevendge, this "usually came up in strictly mobile equipment." However, neither Lominick nor any other official of Respondent made any assertion that any official of the Union, including Holder, had been advised specifically of the automotive mechanic's welding work. While Lominick did assert that the area was so small that Holder "couldn't miss it" when the automotive mechanic was welding, he never attributed actual knowl- edge of the automotive mechanic's welding to Holder and the latter, who certainly did not appear adversely disposed toward Respondent when he testified, made no reference to the automotive mechanic, in contrast to his forthright concession that the propellant test mechanics had been performing welding work. Indeed, there is a significant basis for doubting that Holder could have been aware of any welding being performed by the automotive mechanic, inasmuch as Lominick acknowledged that this employee worked in a building separate from the building to which Holder reports for work, and separate from the test areas where Holder normally conducts his welding activities. The extent of the Union's knowledge of the welding work performed by the automotive mechanic is important for it was one of several Intervenor-represented classifications for which the job descriptions list "welding," "tack and weld," "tack weld" or "Tack weld as necessary" among "Determining Duties and Responsibilities" or "Associated Duties and Responsibilities." However, it is clear that these job descriptions were not formulated in consultation with the Union. Indeed, Business Representative John Gilbert, who has been solely responsible for policing the Union's agreement with Respondent since mid-1971, testified that he had not become aware of most of these job descriptions until the approach of the hearing in the instant case. With respect to the remaining descriptions, Gilbert testified that, although he knew of the references to welding therein, he "had no reason to" file a formal grievance regarding them because "the company had not actually assigned these jobs. They were not doing the [welding] work." In fact, other than the automotive mechanic, whose welding work has not been shown by Respondent to have been known to any official of the Union, including Steward Holder, there is no evidence that prior to December 17, 1975, any of the employees in the Intervenor-represented classifications had performed welding work, including tack welding, with any degree of regularity and with the Union's knowledge. To the contrary, the parties stipulated that since the early 1960's, following the initial certification in 1959, no tack-welding work has been assigned to employ- ees in most of these classifications. It was the assignment of tack welding to the marine systems mechanics A, B, and C that gave rise to the filing of the charge in the instant case. Respondent did not dispute the testimony of Union Representatives Lawrence, Lansciardi, and Gilbert to the effect that the Union did complain informally whenever employees whom it did not represent were discovered performing welding work and that Respondent would immediately direct those employees to cease welding, without the need for filing a formal grievance.9 Thus, notwithstanding the allocation of work under the job descriptions, the fact is that those job descriptions have not a research area where we had ... research welders ... working fairly close with the engineering department to try to develop new techniques in (Continued) 699 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been implemented with regard to tack welding. Moreover, to accept Respondent's argument in this regard is to open the door for reassignment of all unit work inasmuch as the job description references to welding are not confined to tack welding. Tack welding, while only a slice of the overall skills and functions of a certified welder, requires many of the skills which are utilized in making a final weld. That these are not skills normally possessed and exercised by an Interve- nor-represented employee is best illustrated by the fact that Respondent went to the expense and trouble of conducting 2-week training sessions to prepare the 14 Intervenor- represented employees to perform tack welding. Therefore, the nature of the unit, the history of its evolution, and the parties' practice of assigning welding, including tack welding, pursuant thereto support the contention that the contractual unit did implicitly embody tack welding as one of the job functions to which employees represented by the Union were entitled. It is, of course, true that the recognition clauses in the successive agreements in the instant case, as in University of Chicago, have not recited in detail all of the skills, functions, and duties which the employees encompassed thereby are to exercise and perform. Indeed, it was principally this omission which in that case led the Seventh Circuit to criticize the Board's reasoning as a "novel theory." Yet, it is exceedingly rare to find either a collective-bargaining agreement or a certification which does recite every detail of every duty of every classification encompassed therein. To attempt to do so would generate recognition clauses of tome proportions, particularly where a number of classifications were encompassed or where the unit covered, as in the instant case where 300 pages of transcript plus a number of exhibits have been devoted to explaining welding duties, craft employees.' 0 The simple fact is that, as a practical matter, collective-bargaining agreements are not susceptible to detailed recitation of duties of the employees in the bargaining unit to the same degree as wage rates, holidays, or vacation periods can be listed. This does not, however, render recognition clauses, and the duties performed by the employees pursuant thereto, any less a part of the collective-bargaining agreements, particularly where, as in the instant case, it is shown that the parties have been following a practice of observing specific work assignments on the basis of their recognition clauses. Rather, the recognition clause is the most fundamental provision in a collective-bargaining agreement for, as in the political arena, it defines the basis upon which all other factors proceed. It is, accordingly, entitled to, at the very least, the same status as other, more specifically articulated provisions of the agreement. Therefore, I find that tack welding has been a part of the contractual bargaining unit during the history of Respon- welding." However. Beveridge conceded that this was not production welding, that the research welders were represented by the Union and that the Union had continued to complain whenever an engineer was discovered performing such work. Indeed, from Beveridge's description, this work appears to have been no more than sporadic. Accordingly. it does not form the basis for a finding that welding work was being assigned to employees not represented by the Union with the latter's knowledge and acquiescence. "' Consider what this would involve in a relatively straightforward classification such as that of truckdriver. The parties would have to recite dent'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 agree- ment with Respondent. C. The Reassignment of the Tack Welding Work It is undisputed that Respondent reassigned the tack- welding work in the marine systems division notwithstand- ing the objection of the Union. Since this work is a part of the contractual unit, however, Respondent was not free to make this reassignment without the consent of the Union. "Were an employer permitted to ... take work embodied in the bargaining history and recognized classifications of one union, assign it to other of its employees represented by another union at the same location, and transfer to the latter unit or lay off the former unit's members who had been performing the work, contracts could be eviscerated at the employer's will." University of Chicago, supra. "The Union's consent was required if management's proposed modifications were to take effect." The Standard Oil Company (Ohio), 174 NLRB 177 (1969). It should be understood that the holdings of the Board in this area are based upon the express language of Section 8(d) of the Act, under which no party to a contract may be compelled to discuss or agree to a midterm modification of that contract. In this regard, there is nothing new about either the General Counsel's argument in this case or the Board's rationale in University of Chicago. See N.L.R.B. v. Jacobs Manufacturing Company, 196 F.2d 680 (C.A. 2, 1952); Leeds & Northrup Company v. N.LR.B., 391 F.2d 874, 877 (C.A. 3, 1968); Robertshaw Controls Company, Acro Division v. N.LR.B., 386 F.2d 377 (C.A. 4, 1967); N L Industries, Inc. v. N.LR.B., 536 F.2d 786 (C.A. 8, 1976). Consequently, Respondent's argument that it has the right to reassign tack welding during the term of its collective-bargaining agreement, without the Union's consent, is clearly contrary to Section 8(d) of the Act. In support of its argument, Respondent cites a number of cases. Most, however, involve newly established bargaining relationships where no collective-bargaining agreement had as yet been reached." Others concerned situations where there had been a historical bargaining relationship, but the proposed change was not a midterm modifica- tion.12 These cases would not be applicable to a situation, such as exists in the instant case, where Respondent's agreement with the Union remains extant and may not at this point be reopened for modification of its terms - a situation -that can, of course, change in the latter part of this year. In addition, Respondent makes reference to the sizes and types of vehicles to be driven, the geographic area within which the driving is to take place, and the degree to which related functions, such as maintenance and loading or unloading, are to be performed. " E.g., Globe-Union, Inc., 222 NLRB 1081 (1976); The Lange Company, A Division of Garcia Corporation, 222 NLRB 558 (1976); Stone d Thomas, 221 NLRB 573 (1975). 12 E.g., American Buslines, Inc., 164 NLRB 1055 (1967); Tesoro Petroleum Corporation, 192 NLRB 354 (1971). 700 THE BOEING COMPANY several cases involving elimination of job classifications during a contract term13 and discontinuance of and subcontracting an operation during the term of a con- tract.14 It was, of course, to these types of situations that the Board referred in University of Chicago when it stated that "as an accommodation to management's responsibility for determining the allocation of the firm's capital investment," its holding there was not to extend to such matters as subcontracting or transfer of work to another location (terminating the performance of work at a particular location) nor to situations where different methods of operation resulted at the same location. Yet, these factors are not present in the instant case. Though the parties stipulated that Respondent's object for wanting to make the change was to eliminate inefficiency in the production of hydrofoils, there is no evidence that an "allocation of the firm's capital investment" was involved in the reassignment. Rather, the work will continue to be performed by the same means (though by different employee-classifications) and in the same division and location as it had been performed by the Union's represented welders. The sole difference is that the tack welding is to be performed by employees represented by a different labor organization from the Union - and one from which this work, along with all of the welding work, was severed in 1959. In these circumstances, I find that the Board's University of Chicago decision is directly applicable to the facts presented in the instant case and that Respondent will simply have to wait for the appropriate time before attempting to bargain respecting a change in the work assignment of tack welding. That there may be a more efficient manner of performing this work is not disputed. However, Respondent's situation in this respect is no different from that of a contracting party who discovers that a more advantageous bargain might have been struck. As the United States Court of Appeals for the Eighth Circuit stated in N.L.R.B. v. Nash-Finch Company, 211 F.2d 622, 626 (1954): The following language from Printing & Co. v. Sampson, L.R. 19 Eq. 462, 465, has several times been approved by the Supreme Court of the United States: "* * I if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice." See Baltimore & Ohio S.W.R. Co. v. Voigt, 176 U.S. 498, 505, 20 S.Ct. 385, 387, 44 L.Ed. 560; Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356, 51 S.Ct. 476, 75 L.Ed. 1112. Respondent, however, raises three additional arguments directed to the Board's holding that it must obtain the Union's consent to a midterm modification of a contractu- ally established work assignment. First, it points to the fact that the Seventh Circuit declined to enforce the Board's II E.g., The Emporium, A Subdivision of the Emporium-Copwell Company Division, etc.. 221 NLRB 1211 (1975). theory in this regard. Yet, several points emerge from the University of Chicago case which serve to distinguish the court's decision on the facts presented. Most apparent was the similarity, indeed identity, of the work being done by the employees in the two units in that case. Here, of course, the Union represents employees in a craft unit pursuant to a Board certification. Consequently, there is no division of identical work between two units as was present in University of Chicago. To the contrary, there was no tack welding work performed by any employees other than those represented by the Union in the marine systems division prior to December 1975. Another distinguishing point in the University of Chicago decision was the fact that, during the 23-year bargaining history, there had been many transfers of work between the two bargaining units. This has not, of course, happened to any degree in the instant case and the Union has registered complaints whenever it has discovered tack-welding work being performed by employees which it does not represent and these com- plaints have led Respondent to direct such nonunit employees to cease performing that work. Further, Re- spondent has secured the consent of the Union's Tulalip steward whenever it has assigned tack welding to propel- lant test mechanics and that consent, as found above, has extended only to the particular project for which the tack welding is to be performed. Consequently, it can hardly be urged that, as in University of Chicago, the tack-welding work has been transferred between units during the 17-year bargaining history of the Union's representation of the welders. Similarly, in contrast to University of Chicago, where there was no evidence that the parties had consid- ered the classifications and jurisdiction of the work, in the instant case the bargaining unit was created as a craft unit based upon the nature of the welders' work, the parties historically have conformed their contractual unit descrip- tions to that certified unit, clarifications of the unit have been sought from the Board whenever questions arose respecting performance of particular functions, and the Union has carefully policed its unit's jurisdiction, com- plaining whenever it believed Respondent was transgress- ing that jurisdiction and obtaining Respondent's consent to cease doing so without the need for a formal grievance proceeding. Finally, it is clear that the court in University of Chicago believed that health and safety considerations had motivat- ed the transfer of work in that case. "In this day of concern for public health and safety, what higher motives could there be?" Id., 514 F.2d at 949. Considerations of health and safety have given rise to modifications and extensions of settled doctrines in other areas. See Sundstrand Heat Transfer, Inc. (Triangle Division), 221 NLRB 544 (1975); Alleluia Cushion Co., Inc., 221 NLRB 999 (1975). In the instant case, no health and/or safety purposes are ad- vanced to justify the reassignment of tack welding. Nor have any considerations pertaining to "allocation of the firm's capital investment" been revealed to be the motivat- ing force for the change. In these circumstances, I find that the Seventh Circuit's decision in University of Chicago is distinguishable from the facts presented in the instant case '" E.g., Laclede Gas Compan), 171 NLRB 1392 (1968): Carnation Company, 192 NLRB 237(1971). 701 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that the operative factors which motivated that circuit not to enforce the Board's decision are not present in the instant case. The second argument advanced by Respondent pertains to article 2, section 2.1, of its agreement with the Union which provides: The management of the Company and the direction of the work force is vested exclusively in the Company subject to the terms of this Agreement. All matters not specifically 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 determine. Relying upon this clause, Respondent argues that the contract gives it the right to reassign work among the various classifications, citing United Aircraft Corporation (Pratt and Whitney Division), 192 NLRB 382 (1971). However, in United Aircraft, the clause at issue gave the employer "the sole right and responsibility for directing operations and for determining the assignment of work to employees and other persons." Id. at 389. No reference to "assignment" appears in article 2, section 2.1. Moreover, article 2, section 2.1, is specifically "subject to the terms of this Agreement" and pertains only to "matters not specifically and expressly covered or treated by the language of this Agreement." As found above, the recognition clause, defining the contractual unit, encom- passed the work description for a craft unit established under Board principles. Inasmuch as the function of tack welding is a part of such a unit, I find that this work is encompassed at other places in the agreement. Furthermore, there is other language in the agreement that does pertain to changes in job functions. Thus, article 7, section 7.2, provides, in part, "During the life of this Agreement the Company will determine the necessity of any changes in job functions." Accordingly, it would appear that any transfer of work between job classifica- tions would be governed by this section and that it would constitute a matter "specifically and expressly covered or treated by the language of this Agreement" within the meaning of section 2. In other words, the provision of article 7 removes changes in job functions from consider- ation under article 2, thereby eliminating any argument premised upon the latter provision. While article 7 might, itself, appear to cover the transfer of the tack welding, the parties stipulated that "Respondent does not contend that the assignment of tack welding to [Intervenor] represented employees is authorized by Article 7 of the parties' current collective bargaining agreement." Indeed, it seems likely that the entire subject of coverage by a management rights clause of the transfer of tack- welding work is mere afterthought, inasmuch as Respon- dent did meet with the Union in an effort to secure consent to the change and that fact, of itself, is inconsistent with an asserted contractual right to unilaterally undertake such a change. Therefore, I find that the evidence is simply not sufficient to establish that article 2 gives Respondent the contractual right to transfer this work. It is subject to the recognition clause. It appears that article 7 governs changes in work, though the parties stipulated that article 7 did not cover the situation presented here. It is a belatedly raised defense, inconsistent with Respondent's earlier conduct in meeting to secure the Union's consent to the transfer. Finally, Respondent argues that the entire matter is de minimis inasmuch as only 45 total hours of work were spent by Intervenor-represented employees performing tack welding between December 17, 1975, and February 13, 1976; it is not anticipated that any individual Intervenor- represented employee will spend more than 5 percent of his working time performing tack welding; and, the tack welding which Intervenor-represented employees will perform will be but an insignificant portion of the duties performed by employees represented by the Union, both with regard to the amount of time spent and the degree of skill devoted to such work. In advancing this argument, Respondent relies heavily upon Rochester Telephone Corporation, 190 NLRB 161 (1971), where the Board dismissed a complaint concerning a change in method of operations affecting employees classified as installers. However, in reaching the result in that case, the Board relied primarily upon Westinghouse Electric Corporation (Mansfield Plant), 150 NLRB 1574 (1965). In the Westinghouse case the Board predicated its decision upon three factors: Consistency with past practice and normal method of operation, absence of a demon- strated adverse impact upon the unit employees, and ability of the union to have negotiated about this type of practice during past negotiations. New Orleans Board of Trade, Ltd., 152 NLRB 1258, 1259 (1965). In the instant case, Respondent's argument is based exclusively upon the second factor, absence of demonstrated adverse impact, and ignores the facts that the reassignment of tack-welding work to Intervenor-represented employees does not, as found above, comport with past practice and, since the reassignment was proposed and implemented after the current agreement became effective, was not a matter which the Union could have raised during negotiations for the agreement. Thus, assuming the correctness of Respon- dent's de minimis argument, this factor, alone, would not be sufficient to warrant dismissal of the complaint. Schien Body and Equipment Co., Inc., 216 NLRB 110, fn. 1 (1975), affd. 530 F.2d 1094 (C.A.D.C., 1976); George Webel d/b/a Webel Feed Mills & Pike Transit Company, 217 NLRB 815, fn. I (1975). For example, in a case involving the subcontracting of janitorial work, the Board based its dismissal upon not simply the de minimis nature of the work subcontracted, but on the basis of "all the facts and circumstances," Sundstrand Heat Transfer, Inc. (Triangle Division), supra at 545: [W]e take note of the fact that the work subcontracted was de minimis and was work that unit employees did not wish to perform; that the subcontracting was undertaken to maintain healthful and sanitary condi- tions; that the subcontracting in question was merely an extension of a historical pattern of subcontracting this type of work; and that no unit employee suffered reduction of hours or was in any way adversely affected as a result of the action taken. 702 THE BOEING COMPANY Consequently, the fact that the work to be reassigned to the Intervenor-represented employees may be de minimis would not, of itself, justify dismissal of the complaint. Furthermore, it has not, in reality, been fully established by Respondent that the tack-welding work is de minimis. While it is true that only 45 hours have been devoted by Intervenor-represented employees to such work, Respon- dent intends those employees to resume such work upon the resumption of hydrofoil production. Thus, this matter will not simply end with a total of 45 hours of such work having been performed. Moreover, though only four Intervenor-represented employees performed the tack- welding work, Respondent has trained an additional 10 employees to do such work and it can only be assumed that this was done for the object of utilizing them, as well as the 4 others, to perform tack welding. Inasmuch as there are but 47 employees represented by the Union in the marine systems division, the fact that 14 employees not represent- ed by the Union will be performing work formerly performed by craft welders is hardly insignificant. Those 14 employees represent almost one third of the total comple- ment of employees represented by the Union in the marine systems division. Respondent estimates that the amount of tack welding which will be performed by those 14 employees will not exceed, on the average, 5 percent of each individual's working time. Yet, so far as the record discloses, this is merely an unsupported estimate, lacking foundational evidence from which to appraise its accuracy. Accordingly, it is merely speculative. See, e.g., Western Boot and Shoe, Inc., 205 NLRB 999 (1973). Beyond this, 5 percent of the working time of 14 employees is not really so insignificant. For example, during the approximate 2-month period from December 1975 to February 1976, four of these employees were capable of performing 45 hours of tack welding. Projecting this proven time of performance, the total of 14 employees would perform 157-1/2 hours of tack welding during a 2-month period. That represents almost 4 weeks of tack-welding work (at the rate of 40 hours per week) and those 4 weeks, of course, are half the 2-month period during which the 45 hours of tack welding had been performed. Hardly the picture of a de minimis situation. While no employees represented by the Union were laid off and none lost any hours of work by virtue of the 45 hours of tack welding performed by Intervenor's employ- ees, that can hardly be dispositive of what may occur in the future when all 14 of these replacement employees begin performing tack welding. The Union represents craft welders who are already on layoff status. To the extent that nonunit employees receive unit work for performance, the periods of those layoffs are extended commensurately. It is, of course, true that, when compared with the number of skills that a craft welder exercises and the types of normal duties performed by employees so classified, tack welding is not a complicated matter and, in compari- son with the other skills of the trade, is readily learned. Yet, tack welding does entail the use of the basic specialized 1s Which is not to attribute such a motive to Respondent. l~ Significantly. while Respondent's witness testified that the 14 Interve- nor-represented employees had been trained only to tack weld on aluminum skills of a craft welder. It is not the type of function that can be discharged satisfactorily by the normal production employees, as best illustrated by the fact that all 14 employees represented by Intervenor, who had worked around the welders regularly in the marine systems division and who were familiar with the function of tack welding from that fact, still had to undergo training to perform the work satisfactorily. That the skills utilized in tack welding are part of those exercised in the normal course of events by craft welders in undisputed. As pointed out above, the Board has normally included tack welding and those who perform that function in craft welding units. Thus, it can hardly be found that the relative simplicity of the work, compared exclusively against the other functions of craft welders, affords a basis for ignoring interrelationship of tack welding with the welding craft. Indeed, to so find would open the door for parties to break down various craft functions into separate segments, sufficiently narrow so that each could be performed repetitively, thereby engaging in a quiet larceny of the concept of a craft unit.' 5 Such an approach is hardly consistent with the principles of craft status which the Board is mandated to follow by Section 9(b) of the Act and, in the instant case, would undermine the initial severance decision, as the effect would be to restore tack welding to the unit from which it was severed in 1959. Finally, there is the matter of time spent tack welding by the welders. Respondent presented two witnesses who testified that this function occupied approximately 5 percent of the welders' working time. However, one of these witnesses based his estimate primarily upon a time study conducted by persons other than himself. Beyond that, his firsthand knowledge of the time spent tack welding was confined to sporadic checking of what welders were doing while he was engaging in a sampling study for the entire marine systems division in the fall of 1975. Significantly, the results of that study treat welding as a unit. There is no specific allocation of the welding time spent specifically in tack welding. In these circumstances, while I do not doubt the sincerity of the witness, I do not believe that he possessed sufficient firsthand knowledge of the welders' duties, particularly of the time devoted specifically to tack welding, to render an estimate that can be accorded any weight in making the determination as to the amount of time spent tack welding. Among the duties of the second witness, a marine systems division supervisor, was the supervision of the welding shops. However, though he understood the tack-welding process sufficiently to describe it, had observed the welders under his supervision engage in tack welding, and had gone to training classes to familiarize himself with the welding functions, he acknowl- edged that he had never worked as a welder. Respondent did not call any welder, either in its own employ or in the employ of any other employer, to explain the tack-welding process or to corroborate the testimony of the nonwelder witnesses that it did call regarding the percentage of a welder's time occupied with tack welding.'8 alloy 5456 using the metal inert gas (MIG) process. the parties stipulated that the "training program . . . consisted of training the [Intervenor- (Continued) 703 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In contrast, the General Counsel produced two of the Union's officers, each with long experience working as welders for Respondent. Both estimated that approximate- ly 30 percent of an average craft welder's job was spent tack welding. This, of course, was not refuted by any other experienced welder. While I have some doubt, based upon the specific description of John Lansciardi concerning how many minutes are spent tack welding in relation to the number of minutes spent performing other facets of craft welding, that as much as 30 percent of a welder's time is spent tack welding, I have no doubt, based upon the descriptions of how tack welding is accomplished and upon the descriptions of how many tack welds are needed for the various facets of hydrofoil production, that tack welding occupies significantly more than 5 percent of a welder's working time. Therefore, I find, for the above-listed reasons, that it cannot be found that the complaint in this matter must be dismissed on a de minimis theory. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with Respondent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW i. The Boeing Company is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 286-W, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. A unit appropriate for collective bargaining is: All welders, including research, high strength, produc- tion, burner, gas and arc, maintenance A and mainte- nance B welders, welder leadmen, burners' apprentices and helpers, and including all employees operating machine welding equipment where, in the operation thereof and in the process of the weld, based on the employees' sight or sound observations, the equipment may require adjustment in variables such as travel speed, arc voltage, arc gap, current, amount of filler metal being fed into welding puddle, seam tracking or adjustment for variations in the thickness of material, mismatch or gap, in order to produce a satisfactory weld, employed by the Respondent at its plant and operations located in the State of Washington, exclud- ing automatic fusion welding machine operators, sheet metal worker and welder maintenance C employees, employees operating the Airco gas tungsten arc welding machine at the Respondent's Auburn, Washington, represented mechanics to perform both kinds of tack welding mentioned" in fn. 3 above. plant, office clerical employees, professional employees, guards, all other employees, and supervisors as defined in the Act. 4. At all times material, Local No. 286-W, Internation- al Union of Operating Engineers, AFL-CIO, has been the exclusive collective-bargaining representative of the em- ployees in the above-described unit within the meaning of Section 9(a) of the Act. 5. By unilaterally modifying the recognition clause in the existing collective-bargaining agreement between itself and Local No. 286-W, International Union of Operating Engineers, AFL-CIO, by unilaterally transferring work required by contract to be performed by employees employed in the bargaining unit described in Conclusion of Law 3 above to employees in another bargaining unit, and by unilaterally withdrawing work from the bargaining unit for which Local No. 286-W, International Union of Operating Engineers, AFL-CIO, is the contractually recognized representative under the terms of the current collective-bargaining agreement, The Boeing Company unlawfully modified the terms and conditions of said contract before said contract could be reopened pursuant to its provisions, thereby violating Section 8(d) and Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Having found that The Boeing Company has failed and refused to honor and abide by the terms and conditions of the recognition clause of its collective-bargaining agree- ment with Local No. 286-W, International Union of Operating Engineers, AFL-CIO, I shall recommend that The Boeing Company reimburse employees represented by Local No. 286-W, International Union of Operating Engineers, AFL-CIO, for any loss of pay or benefits which would have accrued to them under the collective-bargain- ing agreement, with interest to be paid at the rate of 6 percent per annum thereon. Although there may be no need to resort to this remedy with regard to the 45 hours of tack welding performed between December 1975 and February 1976, this remedy is to apply once The Boeing Company resumes production of hydrofoils in its marine systems division, should it continue to fail and refuse to assign tack-welding work to employees represented by Local No. 286-W, International Union of Operating Engineers, AFL-CIO, during the term of the existing collective-bargaining agreement, and should the result of such conduct be to preclude laidoff employees represented by the Union from being recalled. Upon the foregoing findings of fact and conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: 704 THE BOEING COMPANY ORDER 17 Respondent, The Boeing Company, Seattle, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local No. 286- W, International Union of Operating Engineers, AFL- CIO, as the exclusive bargaining representative of all employees in the bargaining unit heretofore found appro- priate in Conclusion of Law 3, above. (b) Transferring tack welding or any other work encompassed within the aforesaid contractual bargaining unit to any other bargaining unit during the term of the contract, without the express written consent of Local No. 286-W, International Union of Operating Engineers, AFL-CIO. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of any right guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Upon request, bargain collectively with Local No. 286-W, International Union of Operating Engineers, AFL-CIO, as the exclusive bargaining representative of all employees employed in the bargaining unit heretofore found appropriate in Conclusion of Law 3, above. (b) Apply the terms and conditions of the current collective-bargaining agreement between The Boeing Com- pany and Local No. 286-W, International Union of Operating Engineers, AFL-CIO, to the performance of all tack-welding work. (c) Make whole employees represented by Local No. 286-W, International Union of Operating Engineers, AFL-CIO, for any loss of pay or benefits which would have accrued to them under the above-described collective- bargaining agreement but for the failure to assign tack- welding work to those employees during the term of that collective-bargaining agreement, with interest at the rate of 6 percent per annum thereon. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to compute the backpay rates as set forth in "The Remedy" section of this Decision. (e) Post at all locations in the State of Washington to which the collective-bargaining agreement with Local No. 286-W, International Union of Operating Engineers, AFL-CIO, applies, copies of the attached notice marked "Appendix." i' Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representative, shall be 17 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 all objections thereto shall he deemed waived for all purposes. 1o In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities except to the extent that the employees' bargain- ing representative and employer have a collective- bargaining agreement which imposes a lawful requirement that employees become union mem- bers. WE WILL NOT refuse to honor and abide by all terms and conditions in our current collective-bargaining agreement with Local No. 286-W, International Union of Operating Engineers, AFL-CIO, as the collective- bargaining representative of the employees in the appropriate unit: All welders, including research, high strength, production, burner, gas and arc, maintenance A and maintenance B welders, welder leadmen, burners' apprentices and helpers, and including all employees operating machine welding equip- ment where, in the operation thereof and in the process of the weld, based on the employees' sight or sound observations, the equipment may re- quire adjustment in variables such as travel speed, arc voltage, arc gap, current, amount of filler metal being fed into welding puddle. seam tracking or adjustment for variations in the thickness of material, mismatch or gap, in order to produce a satisfactory weld, employed by the Respondent at its plant and operations located in the State of Washington, excluding automatic fusion welding machine operators, sheet metal worker and welder maintenance C employees, employees operating the Airco gas tungsten arc welding machine at the Respondent's Auburn, Washington, plant, office clerical employees, 705 DECISIONS OF NATIONAL LABOR RELATIONS BOARD professional employees, guards, all other employ- ees, and supervisors as defined in the Act. WE WILL NOT transfer tack welding or any other work encompassed by the bargaining unit of our collective-bargaining agreement with Local No. 286- W, International Union of Operating Engineers, AFL- CIO, to any other bargaining unit during the term of that agreement, without the written consent of Local No. 286-W. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights under the National Labor Relations Act as set forth above. WE WILL recognize and bargain collectively with Local No. 286-W, International Union of Operating Engineers, AFL-CIO, as the exclusive collective-bar- gaining representative for employees in the above- described bargaining unit. WE WILL apply the terms and conditions of our current collective-bargaining agreement with Local No. 286-W, International Union of Operating Engineers, AFL-CIO, to all tack-welding work. WE WILL make whole any employees who were unlawfully deprived of tack-welding work on and after December 17, 1975, for any pay or benefits which they may have lost by virtue of our failure to assign tack- welding work to them, with interest at 6 percent per annum. THE BOEING COMPANY 706