Securities and Exchange Commission
Office of Chief Counsel Division of Corporation Finance Judiciary
Plaza 450 Fifth Street, N.W.
Washington, D.C. 20549 FAX -1-202-942-9525
Re: Boeing Shareholder Proposal by Don Shuper for Annual Meeting
April 2002.
Re: Boeing letter of 07 February 2002, request for no-action letter
from Perkins-Coie LLP on behalf of The Boeing Company. ["Boeing
2nd request" ]
Subject: Appeal of portions of SEC letter of 14 Feb 2002
We would appreciate confirmation of receipt of this letter by
reply to --- ---- ---. We have faxed copies to Perkins Coie and
Boeing
Dear Sir or Madam:
We wish to appeal portions of the SEC letter regarding certain
required deletions. Meanwhile, to speed up the process and avoid
further delays, we are enclosing a copy of our redacted proposal
in strict accordance with your requests, pending a resolution
of our appeal.
1) . . .delete the sentence that begins " Communications" and ends " . http://home.att.net/~dprops/welcome.html "
Comment : We can find no supportable or documented claims
by Boeing that meet the standards described in Staff bulletin
# 14 in section F-1, which states 'Companies seeking to exclude
a website address under rule 14a-8(i)(3) should specifically indicate
why they believe information contained on the particular website
is materially false or misleading, irrelevant to the subject matter
of the proposal or otherwise in contravention of the proxy rules.
"
The burden of proof is on Boeing, they have made no supportable
claims, merely allegations.
2) . . "delete the sentence that begins " Please encourage and end . . . to loyal employees";
Comment : We have enclosed copies of the SEC response from last year, along with our proposal as published, and as initially submitted last year. We complied exactly with the SEC request, and believe your current response was caused by confusion resulting from Boeings' lack of proving their allegations, and our response which did not adequately resolve the issue of the "informed " wording. We did remove the "informed" wording from the Resolution statement as requested. Boeing made no further objections to the use of the word in our supporting statement in the last paragraph.
Thank you for your attention [signed ]
Use of the word 'informed"
In our initial submittal last year, our opening statement in
our proposal was:
Resolved : The shareholders request that the Boeing Board of Directors
adopt the following policy:
(1) All non-represented employees be given an informed
choice between the old Boeing Heritage pension plans used prior
to Jan 1, 1999, or the current Pension Value cash-balance plan
at time of termination or retirement.
Boeing objected to the informed wording , and in the SEC response, the requirement said:
. . In our view, the proponent must:
- delete the word "informed" in the sentence
that begins "All no-represented . . ." and ends "...or
retirement "
Nothing was said about our use of the word promise or informed in our closing statement which said then and now:
Please encourage the BOD to keep their previous pension promises by giving an informed choice to the loyal employees who have helped make the company famous and profitable.
Thus we appeal your current decisions on the two issues -
1) use of our website URL
2) deletion of the last phrase, which was also mis-stated in your
response, since the sentence does not end as indicated
Additionally, we have included our proposal, redacted as requested, and added what we believe is adequate- traceable support for our CalPERS statement.
Attachments
a) Our current proposal - redacted in conformance with your
initial request - pending our appeal.
b) Last years SEC request for our 2001 annual meeting proposal
c) Our 2001 proposal as published last year - specific areas marked
Our phon-xxxxx - Yesterday- at noon our time we placed a call to the SEC 292-942- 2900 - requesting clarification. At the time we are faxing this - we have not received a response.
Thank you for your attention [ signed ]
REDACTED IN ACCORDANCE WITH SEC FEB 14TH LETTER PENDING APPEAL
[ 391words ] [Phrase deleted ]portions are intended to be printed
as shown
Resolved: Shareholders request the Board of Directors adopt
the following policy:
(1) All employees vested at time of conversion be given a choice
between their heritage plans or the Pension Value cash-balance
plan at time of termination or retirement.
(2) The cash balance plan to provide a monthly annuity at least equal to that expected under the old pension plan, or an actuarially equivalent lump sum.
Supporting Statements
Boeing implemented the Pension Value Plan [PVP] in 1999 for over
100,000 non-represented employees Although the PVP is primarily
one of benefit formula change, Boeing claimed it could not comply
with eligibility, vesting, benefit and funding requirements by
giving employees a choice at retirement or termination. Over 50
Congresspersons signed a letter to the IRS suggesting several
changes in regulations including " . . . a safe harbor should
be established allowing cash balance plans to meet existing legal
requirements only if all employees are allowed to choose which
pension plan works best for them . . ." [Representative B.
Sanders, February 24,2000]
Last year, this proposal received 52 million votes despite
being incorrectly described on the proxy card as a retiree choice.
The California Public Employees Retirement System supported it.
From: CorpGov@calpers.ca.gov To:[proponent]
Subject: Boeing Proposal Date: Wed, 21 Mar 2001 09:39:51
-0800
X-WSS-ID: 16A6368A238361-01-01
Preliminary research indicates that this proposal warrants our
support. We commend your efforts and look forward to reviewing
the proxy material when released.
From April 2001 until Jan 2002, their website at
http://www.calpers-governance.org/alert/proxy/proxy-results.asp
stated: " BOEING CO Ticker: BA Shareholder Meeting Date:
4/30/01
Total Shares Voted:4,691,243 Number Description / Reason
Vote
7. Shareholder Proposal : Give Certain Retirees a Choice Between
Old Pension Plan and New Cash Balance Plan For CalPERS advocates
non-discrimination in retirement."
We believe a majority of employee shareholders supported our proposal. Boeing declined multiple requests for the summary voting record of State Street which held 69 million employee shares as a trustee.
[Phrase deleted ] Boeing will not provide a copy of their analysis
described last year.
Boeing does not use excess plan investment gains to increase the
benefits otherwise due any participant, but uses them to reduce
or eliminate future Company contributions.
[ Phrase deleted ] Last year, the amount used was 428 Million,
about 20 percent of net earnings.
[ Phrase deleted ] who made the company famous and profitable
THANK YOU