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2. Boeing says that the union security provision of the TWA-IAMAW agreement, while valid for TWA under the Railway Labor Act, is invalid for Boeing because of the applicability to it of Florida's so-called right-to-work law under the National Labor Relations Act. We may assume this is true, but it makes no difference. The invalidity of the union security provision does not void the entire agreement. The provision may be severed, leaving the agreement otherwise intact. N.L.R.B. v. Rockaway News Supply Co., 345 U.S. 71, 78–79. Boeing cannot, therefore, avoid its obligation to observe the terms of the valid provisions of the predecessor's agreement in reliance on the claimed invalidity of a severable provision.
3. Boeing says that the TWA-IAMAW agreement covers guards, and section 9(b) (3) of the National Labor Relations Act bars the Board from deciding that "any unit is appropriate ... if it includes, together with other employees, any individual employed as a guard. ..." The argument is utterly beside the point. The IAMAW does not represent guards at KSC under the TWA-IAMAW agreement or any other agreement. At KSC, which is the sole relevant operation, guard functions are performed by an employer other than TWA, and its employees are represented by Local 128, United Plant Guard Workers of America (Ex. 7, pp. 3, 5). Accordingly, observance of the terms of the TWWA-IAMAW agreement as it applies at KSC does not implicate coverage of guards. It does not need adding that, “while the employer may not be compelled, directly or indirectly, to recognize a nonguard union as bargaining agent for the guards, it may, if it wishes, grant such recognition." 34 NLRB Ann. Rep. 137 (1970).
4. Boeing notes that the System Board of Adjustment established by Article XII of the TWA-IAMAW agreement was created “[i]n compliance with Section 204, Title 11, of the Railway Labor Act, as amended” (Ex. 1, p. 75); that Article XII provides that the "parties will make a joint request to the National Mediation Board to name a referee" (id. at 76); and that it states that “[n]othing herein shall be construed to limit restrict, or abridge the rights or privileges accorded either to the employees or to the Company or to their duly accredited representatives, under the provisions of the Railway Labor Act, as amended" (id. at 79). This is a short horse quickly curried. It does not matter that the System Board of Adjustment was established pursuant to the Railway Labor Act, for it does no more than create a conventional arbitration procedure. It will be necessary to provide for the naming of a neutral of a body other than the National Mediation Board, but that is the merest detail. And while reservation of the rights conferred by the Railway Labor Act is no longer relevant, the provision may either be deleted or modified by substituting the National Labor Relations Act as the relevant statute. The adjustments required are trifling. They do not go to the essence of the procedure established, and certainly not to the essence of the whole of the agreement. If Boeing desires to substitute the arbitration procedure provided by the Boeing-IAMAW agreement, the IAMAW will be delighted to accommodate it. As the IAMAW informed Boeing by its letter of March 12, 1971 (supra, p. 16):
If Boeing believes that particular terms of that [TWA-IAMAW] agreement are inappropriate in their application to Boeing's forthcoming operation at the Kennedy Space Center under its Base Support Services Contract, the IAMAW requests that Boeing identify those particular terms which in its view are inappropriate. The IAMAW will negotiate with Boeing concerning those identified terms to the end that mutual agreement upon the deletion, modification, or continuance of those terms shall be sought. In sum, these are not serious arguments against Boeing's observance of the appropriate terms of the TWA-IAMAW agreement. That observance is compelled by Burns, not diminished by Emerald, and essential to the protection of the employees.
IV. BOEING'S REFUSAL TO EMPLOY AN UNDETERMINED NUMBER OF THE EMPLOYEES OF
THE INCUMBENT WORK FORCE
Boeing refuses to employ an undetermined number of the incumbent work force, at least 625 in number (supra, p. 17). This refusal is an unfair labor practice because it is directly referable to Boeing's disregard of the IAMAW as the representative of the incumbent work force and to its treatment of the incumbents as mere applicants for employment to whom it owed no further duty than to an utter stranger. The refusal is also discriminatorily motivated in the conventional sense.
1. Both Boeing and IAMAW, on separate theories, are agreed that the IAMAW is the representative. Furthermore, for the period preceding Boeing's take-over on April 1, 1971, the IAMAW was indubitably the representative of the incumbent work force, and Boeing could take no action affecting the employment status of that force in disregard of the IAMAW's status as the representative.
2. Boeing at the outset, before it was convinced that the IAMAW would insist upon its observance of the TWA-IAMAW agreement, planned to man its forthcoming KSO base support services operation with the incumbent work force. NASA stated that "Boeing proposes to absorb a large portion of the TWA work force ..." (supra, p. 9). Boeing stated that it intended to employ approximately 90 percent of the TWA labor force (ibid.). Accordingly, there is no question, as there could not be, that the incumbent work force was satisfactory to Boeing and suitable to its operation
3. But Boeing proceeded to recruit that force in disregard of the IAMAW as the representative and as if the incumbents were mere applicants for employment. It discussed and arranged a method of recruitment with TWA, dealing only with TWA (Ex. 3, pp. 1-2), not even notifying the IAMAW. "Boeing gave TWA 1,200 Boeing forms of job applications during early December, 1970 and 150 additional in January, 1971,” which TWA distributed to the employees (Ex. 13, p. 2). Boeing informed TWA that "Boeing would accept applications from TWA employees who presented them at Boeing's employment office in the city of Cape Canaveral" (ibid.).
Incumbents who submitted applications, and who were offered employment by Boeing, were given rates of pay substantially below their current rate, and were required to respond to the offer "within one week." A sample letter to the incumbent, dated January 11, 1971, from Boeing reads as follows (Ex. 14):
Based on discussions with our representative, The Boeing Company is pleased to offer you employment as an Electrician at a starting salary of $3.79 per hour.
This offer is contingent upon the final award by the Government of the Installation Support Services Contract at Kennedy Space Center and the work is scheduled to start by April 1, 1971.
We would appreciate a response to our offer within one week. Upon acceptance we will arrange a time for you to be at the Boeing Employment Office located at 7099 North Atlantic Avenue, Cape Canaveral, Florida for processing. You will be required to show your social security card, proof of birthdate, and discharge papers (if you ever served in the armed forces). If we have not been contacted within one week, we must assume the offer is rejected.
If you have any questions relative to this offer, please call 783–1440. 4. Consternation and bewilderment among the employees ensued (Ex. 15). The offers were at sharply reduced rates. A five-day deadline to respond to the offer was established by Boeing, although it had not yet been awarded the service contract by NASA, for TWA, Pan-Am, and the IAMAW had protested Boeing's selection and the Comptroller General had not yet made his decision, and would not until February 27, 1971. Furthermore, when the Comptroller General rejected the protest, TWA filed a complaint and motion for preliminary injunction with the United States District Court for the District of Columbia to restrain the award to Boeing, and the motion was not denied until March 10, 1971.
5. Confronted with Boeing's unilateral recruitment, the IAMAW, disregarded by Boeing, stepped in. IAMAW wired Boeing on January 15, 1971, as follows (Ex. 16):
I am in receipt of letters from Boeing offering employment to certain employees of TWA represented by District Lodge 142, IAM&AW. Be advised that it is the position of our organization that there is a bona fide labor contract in effect containing wages, hours, and other conditions of employment covering certain employees performing the base support services at the Kennedy Space Center which must be maintained and assumed by any successor company. In accordance with applicable law, the entire work force must be offered employment opportunities subsequent to the final awarding of the bid to any successor company. Therefore, the applications for employment that Boeing is soliciting from our union members are unnecessary and we will take all appropriate steps to support this position for
the complete protection of our membership. Boeing responded by wire on January 21, stating that the IAMAW's telegram "has been referred to our corporate counsel for reply. In the interim, we remain
willing to accept applications on a non-discriminatory basis" (Ex. 17). Boeing counsel wired the IAMAW on January 27 that "we cannot agree with the conclusions expressed in your telegram. However, please be assured that the Boeing Company has in the past and will continue to receive and process applications on a nondiscriminatory basis" (ibid.).
The IAMAW wired a response on February 5, stating that, as the representative, it was requesting that Boeing "cease its 'final offer' ultimate notice to the employees," and that it "meet immediately" with Boeing to "effect an orderly lateral transfer of employees" in the event that Boeing was awarded the service contract. The telegram reads in full as follows (Ex, 18) :
Regarding telegram received from your corporate counsel of January 27, 1971. Assurance that The Boeing Company is continuing to process application on a non-discriminatory basis is not reflected by widespread alarm and confusion prevalent among many Trans World Airlines employees at the Kennedy Space Center. Method being used by The Boeing Company and apparently sanctioned by NSAS are extremely improper and are difficult to understand since as of this date no final award to any interested bidder has been announced by the General Accounting Office. As President and General Chairman of District Lodge 142 IAM and the certified IAM bargaining agent for certain Trans World Airline employees involved, I am hereby requesting: first that Boeing cease it's "final offer” ultimatum notice to employees who have filed job applications and second that I meet immediately with the responsible Boeing Company official in order to preclude further complications which could have damaging effect on orderly lateral transfer of employees in the event The Boeing Company is the suc
cessor employer I wait your prompt reply in this urgent matter. 5. A meeting between Boeing and IAMAW was held on February 19, 1971 (Exs. 15, 19A). IAMAW repeatedly informed Boeing that the incumbent work force desired continuation of employment with Boeing in the event it was awarded the service contract, and that the IAMAW's purpose in calling a meeting was to discuss an orderly lateral transfer of the employees (Ex. 15, pp. 2-3).
Boeing's attorney interjected to say that, while Boeing was willing to meet, Boeing was not the successor or TWA and was not required to accept a transfer of the employees (Ex. 15, p. 2). IAMAW reiterated its desire to arrange an orderly transfer (Ex. 15, pp. 2–3). Boeing stated a "new hire" had to file an application form, that the applicant would be required to meet Boeing's requirements of medical fitness, and would be required to obtain security clearance (Ex. 15, p. 3).
The IAMAW spokesman said, "wait a minute, I'm hearing something for the first time; my understanding was that Boeing was willing to hire the incumbent employees without any strings attached" (Ex. 15, p. 3). The Boeing spokesmen responded “that's not necessarily the case ...; it's like any other applicant for employment; he has to go through the same clearance process, and there are certain Company criteria that have to be met” (Ex. 15, p. 3). The IAMAW spokesmen said that "what you're telling me is that a good many of the incumbent employees won't be hired by Boeing," and Boeing's spokesmen replied, “that's a possibility” (Ex. 15, p. 4).
Nevertheless, acquiescing in Boeing's insistence, the IAMAW agreed that it would distribute application forms among the employees, and return the completed forms to Boeing (Ex. 15. p. 3).
6. On February 25, 1971, IAMAW wrote to Boeing to confirm its willingness to provide the incumbent employees "with an individual Boeing employment application form with proper instructions” (Ex. 19):
This will confirm our telephone conversation regarding the above subject matter on February 24, 1971, wherein I advised you that I have instituted the program which we discussed during our conference, that being that our organization would cooperate with Boeing wherever possible and the initial step being that this organization would take measures to assure Boeing Corporation that all employees are interested in maintaining employment with Boeing Corporation, and in our effort to prove our sincerity, we assured you that all IAM-TWA members would be contacted and provided with an individual Boeing employment application form with proper instructions.
As stated at the conference, and in our telephone conversation, I want to take this opportunity to once again express the willingness of this office to cooperate in any way which would assure uninterrupted, expedient handling
of any matters which may arise if the NASA contract would be awarded to the Boeing Corporation. Feel free at any time to contact this office if you should be able to foresee any inmediate or future problems that the Boeing Corporation would, could or may face in being named the successful
bidder. However, not until the week of March 1, 1971, did the IAMAW receive a sufficient quantity of application fornis, Boeing telling it that forms “were being fiown in from Seattle, Houston, and other Boeing offices ..." (Ex. 19). About March 5, the IAMAW mailed the forms to the incumbents (Ex. 19A). On March 9, 1971, IAMAW transmitted about 537 completed applications to Boeing, and additional completed applications were transmitted on March 11, 12, 15, 16, 18, and 23, making a total of about 710 (Exs. 19A-26). Meanwhile, it was not until March 11, 1971 that NASA and Boeing entered into their service contract (supra, p. 5).
7. It is in this context that it is necessary to consider Boeing's assertion that it had "not offered employment" to the bulk of the incumbent work force because the incumbents "failed to timely complete and file employment applications" (Ex. 13, p. 3). Boeing's claimed failure to receive an adequate response in eariy January 1971 stemmed from its own unilateral effort at recruitment, in utter disregard of its obligation to deal with the IAMAW on the matter, and its own treatment of the incumbents as mere applicants who were required to respond to offers within short deadlines in a situation frought with anxiety and confusion. At the meeting on February 19, 1971, the IAMAW unequivocally informed Boeing that the incumbents desired to transfer and that the IAMAW desired to work out an orderly method of transfer. But Boeing persisted in treating the incumbents as "new hires," insisted on application forms, and went so far as to say, of employees already at work, that their medical fitness and security clearance required checking. IAMAW nevertheless acquiesced in Boeing's adamance as to applications, but it did not secure a sufficient supply of forms until the week of March 1, and even within that limited time span returned 537 completed applications to Boeing on March 9, two days before Boeing entered into the service contract with NASA. In these circumstances it is plain that Boeing refused to hire the incumbents, not because their applications were untimely, but to rid itself of them.
This is confirmed by Boeing's extraordinary statement, in justification of its failure to offer employment to the incumbents, that (Ex. 13, pp. 2–3) :
... Boeing had reason to conclude that the majority of TWA employees preferred to remain with TWA. This conclusion was reached based on the small number of TWA applicants during January and a statement by Mr. Olander [of TWA) as reported by the Brevard Sentinel of January 17, 1971. He was quoted as follows: “ 'Practically all of our employees at the Space Center have indicated they would like to remain with TWA if possible.' He said TWA will try to find places for them elsewhere if Boeing does
get the contract." Of course a majority of TWA employees would prefer to remain with TWA. Who would not in view of its higher wages and fringe benefits? But Boeing knew, as all knew, that this was impossible. There were not nearly enough jobs with TWA. TWA had 1,000 employees on layoff status. It is common knowledge that all air carriers were and are in straitened circumstances. There could be jobs with TWA for only those incumbents who had sufficient seniority to bump junior employees in other parts of the system, and only 139 incumbents were in that position (Ex. 19A, p. 2).
The flimsiness of Boeing's reasons reveals its true motivation to be to rid itself of the incumbents and by that means to rid itself of the TWA-IAMAW agreement.
8. But Boeing's refusals to hire constitute unfair labor practices regardless of Boeing's motivation, For its action is condemned by the Board's decisions in Chemrock Corp., 151 NLRB 1074, and Martin Marietta Corporation, 159 NLRB 905.
Chemrock presented the case in which the successor did not hire any of the predecessor's employees. Chemrock, a newly formed company, told the truck drivers, who were represented by a union, that it would deal with them individually and would hire them only if they were willing to work at a pay rate lower than that set by the old union contract. When the drivers insisted on preserving their contract rights and their union representation, Chemrock hired new drivers. The Board held that (151 NLRB at 1078) :
... where, as here, the only substantial change wrought by the sale of a business enterprise is the transfer of ownership, the individuals employed by the seller of the enterprise must be regarded as "employees" of the purchaser as that term is used in the Act. Such individuals possess a substantial interest in the continuation of their existing employee status, and by virtue of this interest bear a much closer economic relationship to the employing enterprise than, for example, the mere applicant for employment in the Phelps Dodge case. The particular individuals involved here were unquestionably "employees" of the enterprise at the time of the transfer of plant ownership. The work they had been doing was to be continued without change. Clearly employees in such a situation are entitled to seek through bargaining to protect their economic relationship to the enter
prise that employs them. The Board concluded that the "drivers ... were [the successor's] employees .., and the Union represented all of them. The ... (successor's] failure to bargain with the Union upon request, its unilateral change in the wage rates offered the drivers, and its dealing individually with the drivers thus constituted violations of Section 8(a) (5) of the Act" (id. at 1080).
The Board further concluded that the successor independently violated Section 8(a) (1) of the Act. It explained that (id. 1080-81):
... [D]uring the interim period between the time it contracted for the purchase of the plant and the time it took physical possession, ... (the successful), deliberately bypassing the Union, entered into direct dealings with the drivers concerning their continued tenure of employment and the terms and conditions of such continued employment. It is undisputed that the Union at least during that period still retained its statutory status as the employees' duly designated bargaining agent in an appropriate unit. ... It is quite clear that when Respondent invited the drivers as a group to confer with it about their continuity of employment and rates of pay in the "employing industry” to which it was succeeding, it was acting in an employer capacity, and this is so regardless of whether the employees were yet ... (the successor's) employees in a literal sense. Moreover, the subjects about which ... (the successor] engaged in direct dealings with the drivers, though concerned with terms and conditions of employment that were not to be applicable until ... [the successor] actually took over the plant, involved nonetheless matters as to the negotiation of which the employees had a legitimate right and interest to be represented by their bargaining agent. Having itself elected during the interim period referred to above to deal with the employees on matters properly a subject for collective bargaining, ... [the successor] could not at the same time lawfully disregard the employees' statutory right to bargain through their then currently duly designated bargaining representative. ... [The successor's] insistence upon bypassing the Union and dealing with the employees directly and, even more so, its flouting of the employees' expressed desire to be represented by the Union in such negotiations, constituted, it is found, a clear infringement of the employees' Section 7 rights, and as such was violative of Section 8(a) (1). The Board ordered the successor "to offer the drivers reinstatement ..., and to make them whole for any loss of earnings ..." (id. at 1082).
The Board's decision in Martin Marietta condemns Boeing's action in treating the incumbent's as new hires. The Board explained that (159 NLRB at 905–906):
Acme (the successor] ... violated its bargaining duty in still another respect. This was on February 1 and thereafter when it staffed the plantselecting, dismissing, and retaining employees—without consultation with the Union and in disregard of seniority rights of the Coffeyville employees. We have noted heretofore that seniority rights are matters which relate to "wages, hours, and other terms and conditions of employment" and there. fore fall within the scope of mandatory bargaining imposed by the Act. Seniority rights acquired by employees are not necessarily annulled or obliterated when the contract expires, and the obligation to bargain with respect thereto may continue beyond the contract term. We further believe, in this connection, that seniority rights are not vitiated simply by the advent of another employer. We conclude, in the circumstances in this case, that Acme ... was no more privileged to act unilaterally with respect to seniority rights of Coffeyville employees than it could for example, unilaterally