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: Rebuttal to new Boeing claims of
Feb 07 of our violation of Rule 14a-8(i)(3) and Rule 14a-9 in
our shareholder proposal on choice of Pension Plans.
We would appreciate confirmation of receipt of this letter by
reply to ---- or by phone or Fax to ---- We have faxed copies
to Perkins Coie and Boeing [confirmed by Boeing on Monday AM ]
Dear Sir or Madam:
We admit to a certain amount of vexation by having to further
burden the SEC with detailed rebuttals to the last minute Boeing
claims on items which could have been more easily resolved by
good faith negotiations via a phone call from Boeing, as happened
last year when Boeing missed its statutory response dates instead
of the intimidation tactics employed via misleading letters.
1) We repeat our offer to adjust wording to accommodate any
reasonable and rational request by Boeing or as requested by the
SEC.
2) We have included a copy [Exhibit A ] of the CalPERS web site as it was from April 2001 until late January 2002. We had initially assumed that the use of quote marks related to the source [CalPERS] combined with an active link to the website was adequate documentation for any purpose short of judicial proceedings. We apologize for not including it as an exhibit in our previous lengthy rebuttal letter.
3) The company again attempts to deny the proponent's statements regarding choice and improper conduct without citing a specific instance, law, regulation, administrative decision, or adjudication to substantiate its position. Boeing has offered only their unsupported interpretation of regulations. Their statements were then and are now improper, as due diligence would have revealed the company has already returned some employees to the Heritage Plan by contract, and contracts with choice at termination have been in effect since 1999, as mentioned in our rebuttals of last year and again this year.
We believe Boeing has failed to meet their burden of establishing an entitlement to exclude our statements, and again has made improper arguments.
Thank you for your attention [signed]
Boeing 2nd request Item 1.- Use of the word 'pump up'
. . . In his rebuttal letter, Proponent suggests that the false
and misleading nature of this allegation can be remedied by adding
the word "legally" before the words "pump
up." This attempted "fix" does not work, because
the statement still accuses the Company of pumping up earnings,
and by use of that pejorative phrase, implies that the Company
has acted improperly. Accordingly, the entire statement should
be excluded from the Proposal "
Comment: Some of our dictionary definitions of "pump up" include; to increase, heighten, or strengthen. We can find no definition that appears to be objectively pejorative. [ Webster Encyclopedic Unabridged Dictionary, 2001 Edition ]. For example, possible substitutions could include inflate, increase, heighten, strengthen. We believe it would be easier to resolve by a simple phone call than to pick any alternate wording and get further embroiled in the passing of notes with multiple copies game across the country as a result of the untimely response by Boeing.
Boeing 2nd request Item 2 -Complaint about the Calpers website.as
a citation.
". . . In fact, no such information is currently contained
on the referenced web site. Since Proponent has not provided support
or a proper cite for this statement, the statement should be excluded
from the Proposal "
Comment Had Boeing made a timely check or verification
of the website prior to late January, they would have found our
statement to be posted. About the first of February, Calpers
removed the previous years statement.
This is the Calpers site as accessed on 7 Feb 2002 8;30 PM
Seattle time
http://www.calpers-governance.org/alert/proxy/proxy-results.asp
BOEING CO This is provided for informational purposes only and
does not constitute investment advice. Ticker: BA Shareholder
Meeting Date: 5/1/02
Total Shares Voted: 0
Proxy votes are not yet available for this company. Votes for
this company are scheduled to be made available by 4/16/02
PLEASE NOTE THE MEETING DATE AND YEAR AND SCHEDULE FOR MEETING
SHOWN ABOVE.
This was the Calpers site when accessed in April 2001 and thru
Jan 2002
BOEING CO This is provided for informational purposes only and
does not constitute investment advice. Ticker: BA Shareholder
Meeting Date: 4/30/01
Total Shares Voted:4,691,243
Number Description / Reason Vote
[extract below ]
7. Shareholder Proposal : Give Certain Retirees a Choice Between
Old Pension Plan and New Cash Balance Plan
For
CalPERS advocates non-discrimination in retirement.
I accessed this site in preparation of my proposal in November,
and my rebuttal in early January, and no changes had been made
at that time.Exhibit A contains the complete Boeing voting record
as shown on the site prior to February this year.
Boeing 2nd request Item 3.- Use of the word 'improperly'
" . . . Accordingly, since Proponent has provided no support
for the allegation of improper conduct, the entire statement
should be excluded from the Proposal. "
Comment: In December 2000, Boeing made the following statement
in their request for a no action letter: "Fourth, the Proposal
is misleading to the extent it may be implying that the "informed
choice" could be made at the time of retirement or termination.
ERISA and other laws impose specific eligibility, vesting, benefit
and funding requirements. The Company could not comply with
these requirements if participation were not determined until
retirement or termination."
That statement was provably false, misleading, and improper for several reasons.
1) The company and its legal team should have known that a contract between AT&T and the Communication Workers of America specified : " . . . Workers with 15 years or more of service as of July 30, 1998, may choose to receive benefits either under the traditional defined benefit plan or the cash balance account and they can make the choice at the time of retirement so that it is completely clear which is best for them at that stage of life." [ Morton Bahr CWA President [Communication Workers of America ] from the CWA News, October 1999.], and that comment was contained in our rebuttal last year and again this year.
2) In July, 2000 , previously unrepresented technical workers
at Boeing Wichita who had been converted to the Boeing cash balance
plan called the Pension Value Plan or PVP voted for union representation.
By Feb 2001, formal negotiations were in process, and by April,
2001 the company offer included the following statement:
" . . . Benefits earned under the prior
Pension Value Plan will continue to be indexed and/or accrue interest
credits as appropriate. . . ". Which meant that the company
would convert back to the previous Heritage Plan. [The Boeing
Company Employee Retirement Plan ] on contract approval. http://www.speea.org/wichita/files/negotiations/new_4-27-01/Benefits_Comparison.html
By June, 2001, the contract including that offer was accepted.
In pertinent part, the contract now reads :"ARTICLE 17
RETIREMENT PLAN Section 17.1 " . . . the Pension Value
Plan in the form now in effect as to the employees within the
unit to which this Agreement relates shall continue to be effective
through December 31, 2001. Effective January 1, 2002, employees
will no longer accrue Benefit Service in the Pension Value Plan
and will become participants of The Boeing Company Employee Retirement
Plan (hereafter called the Plan). . ."
http://www.speea.org/wichita/files/negotiations/WTPU_Contract/Article 17.html
Boeing knew in December of 2000, and knew last
week that it is:
a) Legally possible to revert BACK to the Heritage Plan AFTER
a conversion to the PVP
b) Legally possible to enter in a contract which would allow
choice at retirement.
Again, our position is that by stating something known to
be not in accordance with fact, truth, or right procedure is IMPROPER
[Blacks- Abridged 6th Edition].
Thank you for your attention.
EXHIBIT A - CALPERS WEBSITE APRIL 2001 THRU LATE JAN 2002
http://www.calpers-governance.org/alert/proxy/proxy-results.asp
BOEING CO This is provided for informational purposes only
and does not constitute investment advice. Ticker: BA Shareholder
Meeting Date: 4/30/01
Total Shares Voted: 4,691,243
Number Description / Reason Vote
1. Elect Directors
For
2. Shareholder Proposal
Disclose Offsets Made with Foreign Entities
For
CalPERS believes this proposal poses no long-term harm
to the company.
3. Shareholder Proposal
Report on Space-Based Weapons
For
CalPERS believes this proposal poses no long-term harm to the
company.
4. Shareholder Proposal
Report on Ways to Link Executive Compensation to Social Performance
For
CalPERS believes this proposal poses no long-term harm to
the company
5. Shareholder Proposal
Reinstate Simple Majority Vote Requirement
For
CalPERS believes this proposal poses no long-term harm to the
company.
6. Shareholder Proposal
Annual Election of the Entire Board of Directors
For
CalPERS believes annual elections foster accountability.
7. Shareholder Proposal
Give Certain Retirees a Choice Between Old Pension Plan and
New Cash Balance Plan
For
CalPERS advocates non-discrimination in retirement.
8. Shareholder Proposal
Advisory Vote for Audit Committee
For
CalPERS believes this proposal poses no long-term harm to the
company.
9. Shareholder Proposal
Limit Stock-Based Awards Against
CalPERS believes this proposal may pose long-term harm to
the company.
= = = END EXHIBIT A = = =
End of our 2nd rebuttal.