The Boeing Co., 31-UC-311

BOEING CO. 349 NLRB No. 91 957 The Boeing Company, Employer-Petitioner and Soci- ety of Professional Engineering Employees in Aerospace, IFPTE, Local 2001, AFL–CIO. Case 31–UC–311 April 30, 2007 DECISION ON REVIEW AND ORDER REMANDING BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER The Employer’s Request for Review of the Regional Director’s Decision and Order is granted as it raises sub- stantial issues warranting review. The Employer’s peti- tion seeks to clarify the existing bargaining units encom- passing facilities in Washington State and Ed- wards/Palmdale facilities in California to exclude certain disputed professional and technical employees. The Re- gional Director dismissed the Employer’s petition, find- ing the evidence was insufficient to resolve the represen- tation issues presented. He also concluded that it was unnecessary to decide whether deferral of those represen- tation issues to pending arbitration proceedings was ap- propriate. Having carefully considered the Request for Review and the Union’s Statement in Opposition, the Board finds, contrary to the Regional Director, that the repre- sentation issues presented pertaining to whether the dis- puted employees are excluded from or included in the units are matters for resolution by the Board and not by an arbitrator. Further, the Board finds that those issues may best be resolved by remanding the case to the Re- gional Director for further processing, including reopen- ing the hearing. Resolution of representation matters is within the prov- ince of the Board. Where a dispute involves representa- tion as well as contractual matters, the Board will not defer to arbitration, but will resolve the dispute. Postal Service, 348 NLRB No. 3 (2006); Advanced Architec- tural Metals, 347 NLRB 1279 (2006). Here, as found by the Regional Director and contrary to the Union’s claim, the instant dispute involves representational as well as contractual issues.1 The Union has represented certain professional em- ployees and technical employees of the Employer at fa- cilities in Washington State and at the Edwards facilities since at least 1975, adding facilities at Palmdale in 1989. In 1996, the Employer acquired Rockwell International and in 1997, merged with McDonnell Douglas. The 1 We do not believe that the Board’s deferral doctrine in unfair labor practice cases necessarily warrants deferral in representation cases. Indeed, the Board has historically eschewed this course. It has done so, inter alia, because of its special role in representation matters, and the need for speed in those matters. Employer began consolidating and restructuring work at its Edwards/Palmdale facilities. The Union learned that the Employer was hiring and placing or transferring cer- tain professional/technical employees at Ed- wards/Palmdale outside the units when they allegedly should have been in the units. After unsuccessfully at- tempting to resolve the issue with the Employer, the Un- ion filed a grievance, which is now pending arbitration. The Employer thereupon filed the instant petition seek- ing to clarify the bargaining units to exclude employees working at the Edwards/Palmdale facilities whose cur- rent job requisitions were not filled through the Seattle, Washington staffing offices. The Employer, through the instant petition, contends that it is seeking to affirm the exclusion of the disputed employees, who it claims have been historically excluded from the existing units. The Union’s grievance seeks recognition by the Employer for employees designated as Union-represented per the parties’ collective-bargaining agreements. However, on the evidence before us, it ap- pears that the collective-bargaining agreements never clearly reflected agreement of the parties with respect to the placement of the disputed employees. The parties apparently never agreed on the composition of the unit as they proceeded through negotiations for contracts follow- ing merger/acquisition and consolidation. Rather, the parties took conflicting positions about determining unit composition by programs, classifications, and hire dates and continue to do so. Since the agreements themselves do not resolve the issue, community-of-interest factors must be considered. Accordingly, the Board finds that the issues presented are not solely a matter of contract interpretation, but rather, involve representation matters. Despite his acknowledgement that this case does not solely involve a contractual issue, the Regional Director dismissed the petition. The Regional Director’s dis- missal, in effect, allows the arbitrator to decide the repre- sentational issues, subject only to a deferential Board review. This result clearly conflicts with Board policy. Thus, we find that the Board has the authority to, and should, define the unit in this case. See Postal Service; Advanced Architectural Metals, supra. However, the correct analysis of the representation issues requires ex- amination of evidence which, it appears, is not available in the existing record and, therefore, those issues cannot be resolved without further hearing. Thus, in clarifying whether the at-issue employees are in or out of the units, the Regional Director and the Board need to resolve such issues as whether those em- ployees may be accreted to the existing units, are already included in the units by virtue of their performance of historical unit work functions, or are sufficiently dissimi- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958 lar to warrant their exclusion. In order to determine whether employees constitute an accretion to the existing unit or may constitute a separate entity, there must be an examination of community of interest factors including employee skills, functions, supervision, interchange, con- tact, working conditions, and bargaining history. Towne Ford Sales, 270 NLRB 311 (1984). In order to deter- mine whether the disputed employees are already cov- ered by the units, the Regional Director and the Board will need to examine bargaining history and the parties’ practices, or, where there are new classifications, whether employees are performing the same basic func- tions historically performed by unit employees. Prem- cor, Inc., 333 NLRB 1365, 1366 (2001).2 It is apparent from the Regional Director’s discussion, as well as from the Employer’s Request for Review and the Union’s Opposition, that there is insufficient evi- dence in the record regarding critical elements of this case. Thus, the composition of the existing bargaining units themselves is unclear. The evidence with respect to collective-bargaining agreements, side agreements, con- tract negotiations, and actual practice is insufficient to show which employees have been included in the bar- gaining units in the past. Moreover, the evidence does not appear to address community of interest factors in a relevant manner. It appears that there is little or no evi- dence with respect to functions, skills, or working condi- tions of any Edwards/Palmdale employees. Reference to supervision is with respect to programs, rather than to specific classifications of employees. There is no indica- tion of the extent of interchange or contact between those who may be in the existing units and the disputed em- ployees. The Employer contends that none of the Ed- wards/Palmdale employees shares a community of inter- est with the Washington State employees in the bargain- ing units, but this matter is left unclear by the extant re- cord. In sum, it does not appear that there is sufficient evidence in the record to enable the Board to make a determination on the inclusion or exclusion of the dis- puted employees based on community-of-interest factors. Our colleague, citing her dissent in Tweddle Litho, Inc., 337 NLRB 686, 687 (2002), suggests a two-step process, i.e., arbitration and then, if representation issues remain, Board intervention. Consistent with the Board majority in Tweddle Litho, Inc., we see no need or war- rant in the instant case to adopt this two-step process. That process has at least three defects. First, it permits an arbitrator to resolve representation case issues, subject only to a deferential review by the Board. Secondly, it delays the Board proceeding until after the arbitration 2 This listing of issues is not necessarily exhaustive. proceeding has run its course. Third, it provides for a two-tribunal process, rather than the one process envis- aged by the Act.3 Our dissenting colleague also asserts that the Em- ployer’s rationale for its unit contention is based solely on the fact that some employees were assigned through the Seattle office and some were not. Our colleague then says that we rejected this rationale and then posited our own. Our colleague is incorrect on both points. First, the Employer’s rationale was based, at least in part, on bargaining history, i.e., the fact that one group was his- torically represented by the Union and the other was not. In addition, the Employer argued that each group has a separate identity. Finally, the Employer explicitly argues that each group has its own community of interest. Con- cededly the record is presently incomplete on that last point, and we are remanding for further evidence on that point. It is ultimately the Board’s responsibility to de- termine those matters, and we want to have all relevant facts before making that determination. Therefore, we reverse the Regional Director’s dis- missal of the petition and remand to the Regional Direc- tor for further processing of the petition, including re- opening the record, focusing particularly on eliciting additional evidence with respect to elements critical to resolving the unit composition issues. MEMBER LIEBMAN, dissenting. In its eagerness to protect the Board’s authority to de- cide representation questions under the Act, the majority today remands a legally-insufficient unit-clarification petition, preempting an arbitration proceeding that might resolve the matter without the need for Board interven- tion and that would at least conserve the Board’s re- sources. Consistent with my dissenting position in other cases, I would dismiss the Employer’s petition and await the arbitrator’s ruling. This case concerns the Employer’s unit-clarification petition and the Union’s contractual grievance regarding the composition of two bargaining units at the Em- ployer’s facilities in Washington State and at Ed- wards/Palmdale, California. The Employer’s petition would include or exclude employees from the two units based on whether or not its Seattle office assigned the employees to work at its Edwards/Palmdale facilities. There is no legal support for determining the composi- tion of a bargaining unit on such a basis. The majority properly rejects the Employer’s unit-clarification ration- ale. 3 We acknowledge that there are contractual issues relevant to the representation case issue. The Board can consider these issues and resolve all of them in one proceeding. BOEING CO. 959 But instead of dismissing the Employer’s petition, the majority remands the matter to the Region to reopen the hearing and to take further evidence on alternative legal theories, none of which were asserted by the Employer in its petition as a basis for inclusion or exclusion of em- ployees into or from bargaining units. This approach is necessary, the majority insists, because the “[r]esolution of representation matters is within the province of the Board” and “[w]here a dispute involves representation as well as contractual matters, the Board will not defer to arbitration, but will resolve the dispute.” The majority’s approach is unwise, even if not un- precedented. In my dissent in Tweddle Litho, Inc., 337 NLRB 686, 687 (2002), I advocated a two-step process in cases involving a potential conflict between a unit- clarification petition and a contractual grievance: First, allow the arbitrator to issue an award; second, determine if there are any representation issues requiring Board intervention.1 The advantage to this approach is that it acknowledges the parties’ contractual interests, by allow- ing their agreed-upon grievance and arbitration to oper- ate, and furthers the possibility of a negotiated accom- modation. Even if the Board were to conclude that defer- ral to the arbitration award was inappropriate, its ultimate disposition of the unit-clarification petition would be aided by allowing the arbitrator to decide any underlying factual and contractual issues, before the Board deter- mined the crucial representation issues. That approach is particularly appropriate here, given the long and complex course of collective bargaining on this issue between the parties. I am unpersuaded by the majority’s summary conclusion that the dispute is not primarily a matter of contract interpretation. Indeed, the recognition clauses of five successive collective- bargaining agreements for each unit clearly refer to per- sons assigned to Edwards/Palmdale as being part of the unit. The parties also entered into at least two side- agreements seeking to elucidate the composition of the unit. Permitting the arbitration to proceed would allow the arbitrator to provide a reasoned determination as to 1 See also Ziegler, Inc., 333 NLRB 949, 951 (2001) (dissent). whether the parties had, in fact, agreed on the unit placement of the Edwards/Palmdale employees. Either party would be free to file (or re-file) a unit-clarification petition if it took issue with the arbitrator’s decision. At that point, the Board could either defer to arbitration (if the dispute involved purely contractual issues) or resolve any representation issues posed.2 Contrary to the major- ity’s assertion, the Board—not the arbitrator—would have the final say regarding representation issues. As for the majority’s argument that a bifurcated process would be inefficient or cause delay, the same could be said of all of the Board’s deferral doctrines.3 And yet for years the Board has seen fit to accord a fair degree of deference to the arbitral process, even to resolve issues involving alleged violations of the statute, in recognition of the favored status in labor policy of dispute resolution meth- ods agreed upon by the parties (e.g., Sec. 203(c) of the Act), and of the arbitrator’s presumed expertise in resolv- ing issues that arise out of the collective-bargaining rela- tionship. In fact, proceeding in this way here could very well simplify the Board’s handling of the matter, since Regional officials would not have to preside over the litigation of the important legal and factual issues con- cerning the collective-bargaining agreements.5 For these reasons, I believe that the majority errs in jumping the gun here, to preclude the mere possibility that the arbitrator will intrude on the Board’s authority to decide representation issues. Accordingly, I dissent. 2 See generally Marion Power Shovel, 230 NLRB 576, 577–578 (1977) (propriety of deferral depends on whether representation case can be resolved via contractual interpretation or application of statutory policy, standards, and criteria). 3 Olin Corp., 268 NLRB 573 (1984); Collyer Insulated Wire, 192 NLRB 837 (1971); Dubo Mfg. Corp., 142 NLRB 431 (1963), Spielberg Mfg. Co., 112 NLRB 1080 (1955). See also Carey v. Westinghouse Electric Corp., 375 U.S. 261 (1964) (Court acknowledged that the dispute could be characterized either as a representation dispute or as a jurisdictional or work-assignment dispute; but however the dispute is to be characterized, it may also properly be adjudicated by an arbitrator under the contract). 5 Presumably, the parties would simply submit the arbitration tran- script and the arbitrator’s award to be made part of the record of the Board proceeding.