The Boeing Company

National Labor Relations Board - Administrative Judge Opinions

Jul 31, 2014

19-CA-093656 (N.L.R.B. Jul. 31, 2014)

JD(SF)–36–14
Seattle, WA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
THE BOEING COMPANY
and Case 19-CA-093656
SOCIETY OF PROFESSIONAL ENGINEERING
EMPLOYEES IN AEROSPACE, affiliated with
INTERNATIONAL FEDERATION OF
PROFESSIONAL & TECHNICAL ENGINEERS,
LOCAL 2001
Anastasia Hermosillo Esq., for the General Counsel.
Charles N. Eberhart, Esq., for the Respondent.
Thomas B. Buescher, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
Dickie Montemayor, Administrative Law Judge. This case was tried before me on
February 4, 2014, in Seattle, Washington. The case involves an allegation that Boeing (the
Respondent) failed to provide the Society of Professional Engineering Employees in Aerospace,
affiliated with International Federation of Professional & Technical Engineers, Local 2001 (the
Union) certain information requested by the Union. The employer, for its part, denies that it
failed to bargain in good faith, or that it failed to provide the Union information it was required
to provide under the Act. I find that Respondent violated the Act as alleged.
This case was originally a part of a group of four cases that were consolidated pursuant to
a complaint and notice of hearing dated April 29, 2013. Prior to the hearing on the consolidated
cases, Respondent on May 10, 2013, moved to sever this case. By Order dated May 14, 2013,
Respondent’s motion to sever was granted and this matter proceeded to trial independently of the
other three consolidated cases.1

1 On May 15, 2014, Administrative Law Judge (ALJ) Gerald Etchingham issued a
decision in The Boeing Company and Society of Professional Engineering Employees in
Aerospace, IFTPE Local 2001, JD(SF)–23–14. In that case, the ALJ concluded that Respondent
violated Sec. 8(a)(1) of the Act by “surveilling employees” and “creating an impression of
surveillance” of employees. I make my findings that the employer violated the Act
independently, and without reliance upon, Judge Etchingham’s decision in the prior case.
JD(SF)–36–14
2
The complaint alleged that Respondent violated Section 8(a)(5) and (1) of the Act by
failing to provide the Union certain relevant requested information. Respondent filed a timely
answer to the complaint denying all violations of the Act.
Counsel for the General Counsel, the Union, and the Respondent filed briefs in support of 5
their positions on March 12, 2013. On the entire record, I make the following findings,
conclusions of law, and recommendations.
FINDINGS OF FACT
10
I. Jurisdiction
The complaint alleges, Respondent admits, and I find that at all material times,
Respondent has been a State of Delaware Corporation with its headquarters in Chicago, Illinois,
that manufactures and produces military and commercial aircraft at various facilities throughout 15
the United States, including Everett, Washington, and others in Seattle, Washington and the
Portland, Oregon metropolitan areas.
The complaint further alleges, Respondent admits, and I find that at all material times
Respondent, in conducting these operations, derived gross revenues in excess of $500,000 and 20
purchased and received at its corporate headquarters products, goods, and materials valued in
excess of $50,000 directly from points located outside the State of Washington.
The complaint alleges, Respondent admits, and I find that Respondent is and has been an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and 25
further, the Union, is, and has been a labor organization within the meaning of Section 2(5) of
the Act.
Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act. 30
II. Labor Organization
The complaint alleges, Respondent admits, and I find that at all times material herein, the
Union has been a labor organization within the meaning of Section 2(5) of the act.35
III. The Alleged Unfair Labor Practices.
A. Background
40
Respondent, is an airplane manufacturer, with facilities located in Washington; Oregon;
California; Mesa, Arizona; Texas; Charleston, South Carolina; St. Louis, Missouri; Philadelphia,
Pennsylvania; and Huntsville, Alabama. (Tr. 47–49:193.) Respondent employs between
150,000 and 200,000 employees nationwide. (Tr. 47.) Respondent is divided into four major
groups: (1) Boeing Commercial Airplanes(“BCA”); (2) Boeing Defense and Space Group 45
(“BDS”); (3) Engineering Operations and Technology (“EO&T”); and (4) Shared Services
Group (“SSG”). (Tr. 45.)
JD(SF)–36–14
3
1. The professional and technical bargaining units
The Union has a long history of representation with Respondent and has represented
many employee bargaining units dating back to the 1940s. (Tr. 143–144.) This case involves
the professional and technical units whose work is covered by the professional and technical 5
collective-bargaining agreements (“professional agreement” and “technical agreement”;
collectively, the “agreements”). (GC Exh. 3; GC Exh. 2.) The professional agreement covers
five bargaining units. (Tr. 43; GC Exh. 3 at 1–2). Employees covered by the professional
agreement perform engineering work. (Tr. 43–44). The technical agreement covers three
bargaining units. (GC Exh. 2 at 1.) Those covered by the technical agreement perform jobs 10
connecting engineering to manufacturing, such as sequencing or drafting. (Tr. 44.)
2. Respondent’s use of non-Boeing and nonbargaining unit labor
In addition to its own employees, Respondent also utilizes “Non-Boeing labor.” Non-15
Boeing labor refers to work performed by third parties, such as a contractors or vendors. Non-
Boeing labor may work in the same facilities as represented employees and perform bargaining-
unit work. (Tr. 49.) “Non-Bargaining-unit labor” refers to Respondent’s employees who are not
part of the bargaining units. (Tr. 50.) These employees may also perform bargaining unit work
at the same facilities as SPEEA represented employees; if, for example, the employee is on 20
travel assignment from an unrepresented facility. (Tr. 50.) However, these employees generally
work at nonunionized facilities. (Tr. 50.) Nonbargaining unit labor may perform both
engineering and technical work. (Tr. 50.)
3. Professional and Technical Employee Compensation25
The compensation scheme for SPEEA-represented professional and technical employees
can best be described as a salary or wage pool wherein specific rates or wages are not identified
but rather wage raises are pooled together and divided amongst employees. (Tr. 44.) The
agreements provide for a guaranteed “minimum increase percentage,” the amount received 30
beyond the minimum is determined by two other variables: (1) individual employee
performance; and (2) how the employee’s current pay compares to the Respondent’s salary
reference table (“SRT”). (Tr. 45, 173–174; GC 2 at 24–25; GC 3 at 24.) Respondent’s SRTs are
charts which “display the range of salaries [Respondent] has established for the jobs . . .
performed by nonexecutive salaried employees.” (R. 13 at 3.) Respondent maintains an SRT for 35
each employee position. (Tr. 235.)2
B. Negotiations
1. Overview40
During all times material to this case, the parties were engaged in contract negotiations
which formally began in April of 2012. (Tr. 55.) At the time of negotiations, the Union sought
to reach a “status-quo agreement.” Their desire was to extend the prior agreement for four more
years. (Tr. 62.) When Respondent presented its first proposal it proposed to cut the current five-45

2 See GC Br. at p. 3 and 4 for a more detailed, concise, and accurate explanation of how the SRTs are
created.
JD(SF)–36–14
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percent wage pools to three-percent. (Tr. 150, GC Exh. 5 at 37, GC Exh. 6 at 34.) The Union
presented the proposal to its membership. The Union members rejected the proposal. (Tr. 157,
229.)
2. The bargaining teams5
The Union’s bargaining team consisted of 25 members; 10 of whom were bargaining unit
employees and 15 were SPEEA staff. (Tr. 57.) Director of Strategic Development Rich Plunkett
(“Plunkett”) was a SPEEA staff member on the Union’s bargaining team. (Tr. 41.) Plunkett’s
role on the team was to advise and speak on behalf of the Union. (Tr. 53–54.)10
Respondent’s negotiation team principals were: BCA Vice President of Engineering
Mike Delaney; Vice President of Commercial Aviation Services Support Todd Zarfos; Director
of Engineering Conrad Ball; Director of EO&T Mark Burgess; Western Region Director of
Employee Relations Bill Hartman; BCA Vice President of Human Resources Julie Ellen Acosta; 15
Director of Human Resources Engineering Rich Hartnett; and Vice President of Labor Relations
Gene Woloshyn. (Tr. 58–59.)
IV. The Information Violation
20
A. The Information Requests at Issue in This Case
The allegations in this case rest on information requests that were sent by the Union to
the Respondent on September 11 and 20, 2012. The information requests were triggered by a
Bloomberg news article and statements made at the bargaining table. The article was published 25
online September 6, 2012, and was titled “Boeing May Use Non-Seattle Engineers as Costs Up.”
The thrust of the article was that Boeing was considering having some work done at other less
expensive sites. The article quoted Mike Delaney, Boeing of America chief engineer as saying,
“we’re committed to Puget Sound . . . But we will do—and I have told SPEEA this—when we
do the next airplane, I will do and use whatever resources it takes to launch the airplane.” (GC 30
Exh. 7 p. 1.) “We’re willing to pay a premium to be in Seattle because there’s a base, there’s
great capability, we’ve got a great team, but you if took SPEEA’s proposal, Boeing’s costs
would balloon and it wouldn’t be competitive. No customer will pay that kind of premium.”
(GC Exh. 7 p. 2.) The “proposal” was a clear reference to the Union’s proposal to maintain the
status quo. 35
Within 2 days of the article’s publication, the Union on September 11, 2012, submitted
an information request which directly referenced statements made at the bargaining table and
statements made to the media presumably referring to the statements attributed to Delaney.
Some of the initial requests are no longer in issue in this litigation and have been purposely 40
omitted. The requests which are still in issue are set forth below:
1. With respect to your statements that engineering costs are higher in Puget Sound than
many other Boeing locations. Please provide the following for each of the past three
fiscal years for the Puget Sound area, St. Louis. MO. Philadelphia, PA. Houston, TX, San 45
Antonio, TX, Huntsville, AL, Charleston. SC and any other Boeing location where
engineers and technical employees perform work similar to that performed by members
of the SPEEA bargaining units in Puget Sound:
JD(SF)–36–14
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a. Detailed calculations and explanations of how Boeing calculates productivity at
each of these locations, including a line by line item breakout of local engineering
labor costs at each location including benefits and any other costs allocated as
engineering labor costs.5
b. Detailed calculations and explanations of how Boeing calculates engineering costs
per Unit of production (including specifically defining the unit of production).
c. A detailed line by line summary of engineering overhead for each location.10
2. With respect to your statement that Boeing is willing to pay a “premium” to do
engineering in Seattle and the Puget Sound area. Please provide the following
information·
15
a. What is the current premium paid to the engineering employees, if any?
b. Provide a detailed explanation of how that "premium” is calculated, the data
supporting that calculation and the data from other locations described in request
number 1 above showing how they do not pay such a “premium".20
3. With respect to your statement that with SPEEA’s current proposal Boeing's
engineering costs would "balloon and it [Boeing] would not be competitive” and ''no
customer would pay that kind of premium", please provide the following:
25
b. All information available or known to you about projected changes in engineering
costs for the competitors over the next three years.
d. A detailed statement of exactly how the “premium'' you claim that no customer
would pay is calculated and all information available or known to you support such a 30
statement.
4. With respect to the statement in the September 7, 2012, message to employees that
“Boeing cannot sustain the rate of growth outlined in the previous contract'', please
provide the following information:35
b. All data, including all assumptions and analyses used to make this determination.
c. A projected date for when growth rate becomes unsustainable, including all data,
assumptions and analysis used to make this determination. (GC Exh. 8.) 40
On or about September 20, 2012, the Union submitted another request for information.
The Union asked to be provided information. The requests that are still in issue are set forth
below:
45
1. Amounts paid by Boeing to outside entities of any kind for persons who perform
bargaining unit work. Data should be broken down to indicate the number of engineers,
the type of engineers and the time period they have worked each year. The same
JD(SF)–36–14
6
breakdown should be made for technical employees. To be clear, the data should be
provided in a manner that will allow SPEEA to do a simple arithmetic calculation
showing the cost per hour of a contract employee to Boeing for the period of time he/she
worked during these four years.
5
3. The compensation paid to engineers and technical employees provided by outside
entities of any kind to Boeing who are performing bargaining unit work. This data should
be broken down by skill type and separately list not just base pay but things like overtime
and fringe benefits, to the extent they exist. (GC Exh. 10.)
10
Respondent did not provide the information that was requested by the Union instead, on
September 25, 2012, Mark Brenaman, the employee relations specialist, responded via email to
the first request. In his email he stated:
1. As the Company has communicated consistently throughout the negotiation process, 15
wage rates in the Puget Sound are well above the national market. This information is
available publicly from sources to which the Union has ample access. The Company
also has information available through ERI illustrating the differences between the
specific markets identified in your request. Moreover, the Company has also presented
extensive data to the Union in previous meetings regarding our position on wages relative 20
to market. Much of that data was presented months ago, in our April 19th and 20th
sessions. Given the confidential nature of much of the ERI data and the information
presented during our meetings, the Company agreed to provide the presentations subject
to a confidentiality agreement. We iterated on a proposed confidentiality agreement to
the Union, but received no final response. If the Union now wishes to revisit its position 25
on the execution of a confidentiality agreement, the Company would be happy to discuss
it further.
2. It is a statistical and publicly available fact that the Puget Sound has higher wage rates
than other geographic regions. See the Company's response to request number 1 above.30
3. This request is vague, ambiguous, and overbroad, and calls for information with at
best tangential relevance to the ongoing negotiations. It contains such vague requests as
"information on the "quality differences (perceived and actual), materials, workmanship,
engineering, functionality, service, on time delivery and any kind of government subsidy 35
received between Boeing products and the competitors' products that would be purchased
by customers. If there are specific questions the Union has relating to these topics, we
ask that it pose those specific questions and state their relevance to the ongoing collective
bargaining .
40
As to the requests that the Company cost out the Union's proposals article by article, the
Company is under no obligation to cost out the Union's proposals in this fashion.
However, the Company has evaluated the Union's wage proposal of 7.5% each year and
JD(SF)–36–14
7
determined that if accepted, it would place the bargaining unit's salaries at almost 30%
above the market. (See Respondent’s Chart) 3
4. As noted in response to the above requests 1-3, while the Company seeks to remain
market leading, it must provide compensation that is sensitive to the current market. No 5
company can sustain its competitiveness if its cost of labor continues to significantly
outpace the growth among its market competition. The Company is not financially
insolvent or claiming a present inability to pay. It is simply reiterating that wage
increases must be based on fiscally prudent analysis of the Company's position relative to
market in order to remain and sustain the Company's competitive position. We shared the 10
basis for our opinions in detail during the Company's presentation on the competitive
business environment delivered during our August 16, 2012 meeting and throughout the
negotiations to date.
On October 5, 2012, Boeing and the Union entered into the confidentiality agreement 15
referenced in paragraph one of Brenaman’s emails. (GC Exh. 12.) Similarly on October 5,
2012, William Hartman, the director of employee relations responded to the Union’s
October 5, 2012 request pertaining to Non-Boeing Labor and stated among other things that the
requested, “data remains presumptively irrelevant to the current negotiations, and the Union still
would be required to articulate a basis for the request.” (GC Exh. 17.) Enclosed with the 20
response was a matrix with information pertaining to contractors. The chart however did not
contain information that was specifically requested by the Union including amounts paid to
outside entities, compensation paid to employees by outside entities including any overtime and
fringe benefits. (GC Exh. 18.)
25
Thereafter, on November 1, 2012, the Union sent an email asserting that despite signing
the confidentiality agreement that Brenaman asserted was a prerequisite to Respondent
complying with the request, and the Union’s explanation of the relevance of the information
sought, Respondent still had not provided information responsive to its requests. Specifically
Respondent failed to provide information pertaining to “rates paid to non-Boeing personnel 30
performing bargaining unit work.” (GC Exh. 19, p. 2.)
On November 7, 2012, Respondent provided a chart which contained information
regarding the hourly rates paid to contractors listing the minimum, average, and highest amounts
paid. (GC Exh. 20.)4 The chart however did not provide any information regarding contract 35
house fees, overtime, or fringe benefits. (GC Exh. 20.)5
After receiving the chart, the Union’s representative, Rich Plunkett contacted Brenaman
by phone to discuss the information requests. Brenaman when questioned about information that

3 Respondent’s email provided a chart supporting its calculation which appears in the
original email but was omitted. (See GC Exh. 11 p. 2.)
4 The actual dollar amounts that appeared in the original exhibit were redacted to preserve
the confidentiality of the information. (GC Exh. 20.)
5 Counsel for the General Counsel conceded in its brief that only two items from the
September 20, 2012 request remain at issue. The first being the Union’s request for the amounts
paid to outside entities and second, the compensation including overtime and fringe benefits paid
to contractors. (See GC Br. at 28.)
JD(SF)–36–14
8
still had not been provided told Plunkett, “what you’ve got is all you’re going to get” (Tr.
140:18). Thereafter, no other information was received regarding either the September 11or 20,
2012 requests.
B. The Duty to Provide Information5
Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer “to
refuse to bargain collectively with the representatives of its employees.” 29 U.S.C. § 158(a)(5).
As the Board explained in A-1 Door & Building Solutions, 356 NLRB No. 76, slip op. at 2
(2011): An employer's duty to bargain includes a general duty to provide information needed by 10
the bargaining representative in contract negotiations and administration. See NLRB v. Truitt
Mfg. Co., 351 U.S. 149, 152–153 (1956) [parallel citations omitted]. Generally, information
concerning wages, hours, and other terms and conditions of employment for unit employees is
presumptively relevant to the union's role as exclusive collective-bargaining representative. See
Southern California Gas Co., 344 NLRB 231, 235 (2005). By contrast, information concerning 15
nonunit employees is not presumptively relevant; rather, relevance must be shown. Shoppers
Food Warehouse Corp., 315 NLRB 257, 259 (1994). The burden to show relevance, however, is
“not exceptionally heavy,” Leland Stanford Junior University, 262 NLRB 136, 139 (1982), enfd.
715 F.2d 473 (9th Cir. 1983); “[t]he Board uses a broad, discovery-type standard in determining
relevance in information requests.” Shoppers Food Warehouse, supra at 259.20
Notably, once the burden of showing the relevance of nonunit information is satisfied, the
duty to provide the information is the same as it is with presumptively relevant unit information.
Depending on the circumstances and reasons for the union's interest, information that is not
presumptively relevant may have “an even more fundamental relevance than that considered 25
presumptively relevant.” Prudential Insurance Co. of America v. NLRB, 412 F.2d 77, 84 (2d
Cir.), cert. denied 396 U.S. 928 (1969). “[A]n employer's duty to bargain includes a general duty
to provide information needed by the bargaining representative to assess claims made by the
employer relevant to contract negotiations.” Caldwell Mfg. Co., 346 NLRB 1159, 1159–1160
(2006). NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956). As the Supreme Court 30
explained in Truitt, when a party asserts its positions without permitting proof or independent
verification, “[t]his is not collective bargaining.” 351 U.S. at 153 (quoting Pioneer Pearl button
Co., 1 NLRB 837, 842–843 (1936)).
C. Relevance 35
1. The presumptively relevant information requests
The evidence of record establishes, and I find that some of the information requested by
the Union was presumptively relevant. More specifically, I find that the request for information 40
regarding “premiums” paid to engineering employees represented by the Union (September 11,
2012)-Item Number 2(a) and (b) were presumptively relevant as it directly related to wages paid
unit employees. See Maple View Manor, Inc., 320 NLRB 1149 (1996).
2. The other relevant information requests 45
The discovery standard for relevance is construed “broadly to encompass any matter that
bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or
JD(SF)–36–14
9
may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978), Hickman v.
Taylor, 329 U.S. 495, 51 (1947). Although not presumptively relevant, I find that items 1a, 1b,
1c, 3 b, 3d, 4b, and c of the September 11, 2012 request and items 1 and 3 of September 20,
2012, all relevant.
5
In this case, the Union sought the information because the Union wanted to know first
and foremost the rationale underlying the statements made at the bargaining table and those
attributed to Delaney in the news article. The question is whether the requests for the
information satisfy the “broad, discovery-type standard” of relevance utilized by the Board. I
find that they do. The information regarding calculations and explanation of productivity costs, 10
engineering costs, and engineering overhead all directly relate to statements made at the
bargaining table, and the news article statements attributed to Delany regarding the expense
associated with the Union at Puget Sound and the inference that work would be sent elsewhere
absent some agreement that contained costs. (Tr. 78:11–21, Tr. 70:11–18, 73:4–18, Tr. 69–70,
Tr. 73). This information is directly relevant to the Union’s evaluation and/or reevaluation of 15
their bargaining position as it related to the fundamental and basic underlying contract wage
issues.
Similar reasoning is applicable to the data and calculations showing how premiums are
not paid at other facilities, projected changes in engineering costs for the next 3 years, a detailed 20
statement of how the “premium” referenced at the bargaining table and attributed to Delaney in
the news article is calculated, information regarding whether Respondent could sustain the rate
of growth (referenced both in a memo to employees and the news article), along with
information when rate of growth would become unsustainable. (GC Exh. 9.) I find that all these
information requests are directly relevant to the Union’s evaluation of its position regarding 25
Respondent’s claims that the Union’s initial bargaining position would harm its competitiveness.
The relevance of the information was generally explained by Plunkett who testified “[i]f we’re
going to price them out of business, we’re out of work. So we needed to know what is this
premium. And if no customer is going to pay, we need to understand that.” (Tr. 90:10–16.)
30
So too, I find relevant the two September 20, 2012 information requests pertaining to the
amounts paid to outside entities during the prior 4 years and compensation including overtime
and fringe benefits paid to contractors for the last 4 years. This information was also directly
relevant to underlying contractual wage issues that were at the heart of the negotiations between
the parties. The information was relevant to the Union’s evaluation of the overall “market rate” 35
referenced by Respondent and whether the rate took into account rates being paid contract
workers and those paid to a “contract house.” (Tr. 104:10–20.) Mr. Plunket generally described
the relevance stating, “we wanted to understand the market . . . and we’re trying to understand
the market to the greatest level of detail so we could structure a counter or have a dialogue about
interests not simply I want to be x percent in the market.” (Tr. 105:10–16.). 40
In sum, Respondent’s proposal to reduce the annual wage growth percentage, its direct
statements (and those attributed to Delany) directed at the Union’s initial “status quo” proposal
asserting that Boeing’s costs would “balloon and it wouldn’t be competitive” were a public
invitation and/or warning to the Union to reevaluate its bargaining position. This triggered the 45
Union’s duty to evaluate in detail Respondent’s statements to determine the accuracy of such
statements and whether in fact their position required some alteration.
JD(SF)–36–14
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I further find that it is inherently contradictory for Respondent on the one hand to assert
at the bargaining table and publicly that these matters are broadly relevant to bargaining and then
during the litigation assert that these very matters have absolutely no relevance to the
negotiations. I find that all of the information requests referenced above would have assisted the
Union in assessing the accuracy of the Respondent's factual assertions and developing its own 5
counterproposals. The record evidence unambiguously demonstrates that the Union’s requests
were made directly in response to specific assertions made by the Respondent while bargaining
was ongoing.
D. The Failure to Provide Relevant Information.10
The Union was entitled to all of the relevant information referenced above and I find that
Respondent’s refusal and/or failure to provide the information violated the Act. “The refusal of
an employer to provide a bargaining agent with information relevant to the Union’s task of
representing its constituency is a per se violation of the act without regard to the employer’s 15
subjective good or bad faith.” Piggly Wiggly Midwest, LLC, 357 NLRB 191 (2012); Brooklyn
Union Gas Co., 220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co., 237 NLRB 747, 751
(1978), enfd. 603 F.2d 1310 (8th Cir. 1979). The failure to provide the information is in direct
contravention to the fundamental objectives of the Act. “The objective of the disclosure [of
requested information] obligation is to enable the parties to perform their statutory function 20
responsibly and ‘to promote an intelligent resolution of issues at an early stage and without
industrial strife.” Clemson Bros., 290 NLRB 944, 944 fn. 5 (1988).
The Respondent's arguments to the contrary are unavailing. Respondent contends that it
had no duty to provide the information because (1) “Boeing never claimed an inability to pay; (2) 25
Boeing never put “engineering costs” at issue; (3) NBL costs and compensation is irrelevant to
SPEEA employee compensation and (4) SPEEA did not need the information to perform its
bargaining function.”
1. Inability to pay30
Respondent argues that it never claimed “inability to pay” and therefore the duty to
provide information was never triggered. Respondent’s assertions regarding “inability to pay”
fall short. The Board in Caldwell Mfg. Co., 346 NLRB 1159, 1160 (2006), openly rejected the
notion that only assertions of “inability to pay” will trigger a duty to disclose information. The 35
Board instead held that “when there has been a showing of relevance, the Board has consistently
found a duty to provide information such as competitor data, labor costs, production costs,
restructuring studies, income statements, and wage rates for nonunit employees.” In Caldwell,
the Board specifically held that “the General Counsel established that the information was
relevant, because it would have assisted the Charging Party in assessing the accuracy of the 40
Respondent’s proposals and developing its own counterproposals. The record evidence
demonstrates that the Charging Party’s requests were made directly in response to specific
factual assertions made by the Respondent in the course of bargaining.” (Id. at 1160.) A similar
result was reached in KLB Industries, Inc. v. NLRB, 700 F.3d 551 (D.C. Cir. 2012), wherein the
company sought wage concessions on the basis of competitive pressures it claimed to be facing. 45
In KLB, the court reaffirmed the Board’s holding that when the company relied on competitive
pressures to justify wage concessions it “made the veracity of that claim relevant to the
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negotiations.” (Id. at 557.) The reasoning and rationale of Caldwell and KLB is particularly
applicable to the facts of this case and directly addresses the very questions presented.
2. Respondent directly and indirectly put engineering costs in issue
5
Respondent’s assertion that it never put “engineering costs” in issue ignores the plain and
obvious statements attributed to Delaney, statements made at the bargaining table, and
statements made by Brenaman in response to the information requests themselves.
Unmistakably, the news article’s plain focus was on “engineering costs.” Wage rates are
undoubtedly a part of what makes up “engineering costs.” Brenaman, in his September 25, 2102 10
response to the Union’s request for information regarding “engineering costs” stated, “as the
company has communicated consistently throughout the negotiation process, wage rates in
the Puget Sound are well above the national market (emphasis added).” (GC Exh. 11.)
Brenaman’s statement is a clear admission that “throughout the bargaining process” engineering
costs were in fact “in issue.” 15
Respondent further argues that the requests for information were “based upon the false
premise derived from an inaccurate and unreliable news article.” (R. Br. at 31.) Respondent
further argues that the Bloomberg article was not “substantive evidence” and “unsubstantiated
hearsay.” (Id.)20
The news article falls outside the definition of hearsay because it was never offered to
prove the truth of the matters asserted therein. (Tr. 81.) See Fed. Rules of Evidence 801(c)(2).
I also reject the underlying premise of Respondent’s argument that somehow it was insulated
from responding to the requests for information because the requests were partly triggered by 25
quotes attributed to Boeing’s VP of engineering and chief spokesperson for Boeing Commercial
Airplanes (BCA). The article was published while negotiations were ongoing and specifically
referred to the Union’s proposal. The language used in the news article mirrored other
statements made in bargaining. I find the totality of these to facts sufficient to trigger the
Union’s statutory duties and responsibilities. The information sought clearly had a bearing on 30
the bargaining process and the Union had a reasonable belief supported by objective evidence i.e.
a printed news article with statements attributed to the chief spokesperson for BCA requesting
the information. See Shoppers Food Warehouse, 315 NLRB 258, 259 (1994).
Further, there is no evidence in the record from which to conclude that the news article 35
was either inaccurate or unreliable. Delany was never called as a witness and no person who was
called to testify called into question the accuracy or reliability of the article. Nor did any of
Respondent’s officials suggest during the various communications between the parties during
bargaining that the news article was inaccurate or unreliable. There was no testimony or
evidence offered which established that Delany, the chief spokesperson for BCA, was not 40
authorized to speak on behalf of Boeing in his official capacity. There was also no evidence
introduced which established that Boeing sought any retraction or correction from Bloomberg.
Nevertheless, the information request was not predicated solely on the news article. The Union’s
request on September 12, 2012, on its face referenced both, “statements made at the bargaining
table and to the media.” (GC Exh. 8.) 45
JD(SF)–36–14
12
3. Non Boeing Labor (NBL) costs and compensation was relevant.
Respondent’s assertions that that NBL costs and compensation were irrelevant are also
misplaced. The comparison of what others were paid is directly relevant to the Union’s
evaluation of the market rate of pay. This is especially true given the fact that Non-Boeing 5
contract workers can perform the same work and in fact work side by side with bargaining unit
employees. (Tr. 49:9–24.) As previously noted, wage rates and their comparison with what
Boeing was characterizing as the “market rate” were matters that were at the heart of the
negotiations and were directly relevant to bargaining.
10
E. Respondent Has No Legal Right to Unilaterally Decide What Information the Union
Needs to Perform its Statutory Responsibilities.
Respondent’s assertion that the Union did not need the information to perform its
bargaining function also lacks merit. Respondent has no legal right to determine unilaterally 15
what information the Union needs to engage in meaningful negotiations nor to unilaterally force
the Union to rely upon the accuracy of its assertions without independent verification. The need
for the information was directly triggered by the actions of Respondent and the assertions it
made and/or were attributed to it in the news article. It was the Union’s legal right and
responsibility to assess and verify for itself the accuracy of the Respondent's claims in 20
bargaining. Shoppers Warehouse, supra. As the Supreme Court noted in Truitt, supra, if “an
argument is important enough to present in the give and take of bargaining, it is important
enough to require some sort of proof of its accuracy.” 351 U.S. at 152–153. The Supreme Court
in Truitt recognized the right for independent verification noting that without permitting proof or
independent verification, “[t]his is not collective bargaining.” 351 U.S. at 153 (quoting Pioneer 25
Pearl Button Co., 1 NLRB at 842–843.
Respondent’s Other Defenses
I reject the Respondent's other asserted defenses as being contrary to clearly established 30
Board law. The Respondent’s contention that the Union's information requests were made in bad
faith is without any factual support. “[T]he presumption is that the union acts in good faith when
it requests information from an employer until the contrary is shown.” Hawkins Construction
Co., 285 NLRB 1313, 1314 (1987), enf. denied on other grounds, 857 F.2d 1224 (8th Cir. 1988);
International Paper Co., 319 NLRB 1253, 1266 (1995), enf. denied on other grounds, 115 F.3d 35
1045 (D.C. Cir. 1997). There is not a scintilla of evidence to support the assertion the Union
acted in bad faith. In Land Rover Redwood City, 330 NLRB 331, 331–332 fn. 3 (1999), the
Board held that “the requirement that an information request be made in good faith is satisfied if
at least one reason for the demand can be justified.” As was discussed above, the Union’s
requests were all relevant to the ongoing bargaining and therefore justified. Respondent asserted 40
that the timing of the requests suggests that the real purpose behind the requests was to “delay-
not facilitate-the negotiations.” (R. Br. at 35.) I disagree, the timing of the requests were
triggered by statements made at bargaining and those attributed to Delany and there was no
showing to the contrary. Respondent also argues that the “sheer quantity of SPEEA’s
information requests established bad faith.” (Id. at 36.) While it is clear that in some 45
circumstances an overly burdensome request can constitute bad faith, the requests in this case
simply do not fall within that category. I find that the requests were not overly burdensome or
JD(SF)–36–14
13
“excessive” as characterized by Respondent. Rather, they were carefully and narrowly tailored
and sought relevant information that was put in issue directly by Respondent.
Respondent’s assertions of waiver similarly lack merit. Respondent can point to no
evidence in the record (and there is none) which would support a finding that the Union 5
relinquished its rights to the information sought. See Clinchfield Coal Co., 275 NLRB 1384
(1985). Nor has there been the requisite showing that the Union expressly waived its right to
information. NLRB v. Perkins Mach. Co., 326 F.2d 488(1st Cir. 1964).
I also find Respondent’s assertions that the subsequent reaching of a collective-10
bargaining agreement renders moot the Union’s claims unpersuasive. Respondent’s assertions
ignore well-established Board precedent to the contrary. See Lumber Mills Employers Assn’s,
265 NLRB 199, 204 (1982), enfd., 736 F.2d 507 (9th Cir. 1984), cert. denied, 469 U.S. 934
(1984).
15
F. The Practical Effects of the Failure to Provide Relevant Information
I find Respondent’s failure to provide requested information undermined and tainted the
bargaining process. “Collective bargaining is often described as a struggle of brute economic
power between an employer and union. It is, but at the same time the Act regulates the process 20
of that struggle by requiring good-faith bargaining that encourages reasoning, problem solving,
and honest discussion. This reasoned side of the Act is essential if the Act's goal of industrial
peace is to be furthered. There is a right to engage in knowledge-based bargaining where parties
can verify each other's statements, and just as importantly, have information necessary to
creatively search for solutions to the problems and differences that arise in collective 25
bargaining.” National Extrusion & Mfg. Co., 357 NLRB No. 8 (2011). Respondent’s actions in
failing to provide the requested information deprived the Union of its right to engage in
“knowledge based bargaining.”
CONCLUSIONS OF LAW30
1. The Respondent, The Boeing Company, is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Party the Society of Professional Engineering Employees in Aerospace, 35
affiliated with International Federation of Professional and Technical Engineers, Local 2001
(Union) is a labor organization with the meaning of Section 2(5) of the Act.
3. At all material times the Union has been the designated exclusive collective-
bargaining representative of the following bargaining units of Respondent's employees: 40
a) Professional Unit
Professional employees, including but not limited to those working at [Respondent’s]
facilities in the State of Washington and the State of Oregon, as set forth in 45
Appendix B of the Collective-Bargaining Agreement for the Professional Bargaining
Units.
JD(SF)–36–14
14
b) Technical Unit
Technical employees, including but not limited to those working at [Respondent’s]
facilities in the State of Washington and the State of Oregon, as set forth Article 1
and Appendix B of the Collective-Bargaining Agreement for the Technical 5
Bargaining Units.
4. By failing and refusing to provide information requested by the Union and relevant to
the Union's representational duties Respondent violated Section 8(a)(5) and (1) of the Act.
10
5. The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
15
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
20
The Respondent shall provide the Union with the information requested in paragraphs 1,
2, 3b and d, and 4 b and c of its September 11, 2012 request for information. Respondent shall
also provide the Union with the information requested in paragraphs 1 and 3 (excluding the wage
information previously provided) in its September 20, 2012 request for information.
25
To remedy the Respondent's unlawful failure to bargain in good faith with the Union, the
Respondent shall be ordered to bargain in good faith with the Union.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended630
ORDER
The Respondent, [name, city, State], its officers, agents, successors, and assigns, shall
35
1. Cease and desist from
(a) Failing and refusing to bargain with the Union as the representative of its
employees in an appropriate bargaining unit by failing and refusing to provide information
requested by the Union that is relevant and necessary to the Union's representational status.40
2. Take the following affirmative action necessary to effectuate the policies of the Act.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–36–14
15
(a) In a timely manner, furnish the Union with the information requested by the
Union in paragraphs 1, 2, 3b and d, and 4b and c of its September 11, 2012 request for
information.
(b) In a timely manner, furnish the Union with the information requested by the 5
Union in paragraphs 1 and 3 of its September 20, 2012 request for information (excluding the
wage information previously provided referenced herein).
(c) Within 14 days after service by the Region, post at its facility in Seattle,
Washington, copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms 10
provided by the Regional Director for Region 19, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 15
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to 20
all current employees and former employees employed by the Respondent at any time since
November 23, 2012.
(d) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the25
steps that the Respondent has taken to comply.
Dated, Washington, D.C. July 31, 2014
30
__________________________
Dickie Montemayor35
Administrative Law Judge

7 If this 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.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT fail to collectively bargain in good faith with the SPEEA, IFPTE LOCAL 2001
(the “Union”), by refusing and failing to provide the Union with requested information that is
relevant and necessary to the performance of its duties as the collective-bargaining
representative of our employees in the units as described in article 1 of the most recent
collective-bargaining professional and technical agreements between the Union and us.
WE WILL provide the Union with the information it requested as set forth in paragraphs 1, 2,
3b and d, and 4b and c of its September 11, 2012 request for information; and in paragraphs 1
and 3 (other than wages which were provided on November 5, 2012) of its September 20, 2012
request for information.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
THE BOEING COMPANY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
915 2nd Avenue, Room 2948, Seattle, WA 98174-1078
(206) 220-6300, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-093656 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (206) 220-6284.