A National Labor Relations Board administrative law judge will not hear Acting General Counsel Lafe E. Solomon’s unfair labor practice complaint against Boeing Co. until June 14, but Republican lawmakers in Washington, D.C., and in state government are not waiting until the complaint is tried to criticize NLRB and the case against Boeing almost daily.
Legislators who have been critical of NLRB allegations that Boeing unlawfully moved jetliner production away from unionized workers in Washington state to employees at a nonunion plant in South Carolina have moved beyond issuing public statements to demanding access to NLRB files and records and offering legislation to limit the board’s authority in the Boeing case and similar disputes.
The board’s acting general counsel, Democratic lawmakers, and some scholars maintain that the furor is misplaced or at least premature, given that the complaint has not yet made it to trial. Republican moves scrutinizing NLRB actions in a pending case may unnecessarily interfere with the administrative process, and an attempt to create a legislative roadblock to NLRB action against Boeing could have unintended consequences, some contend.
The legal dispute over Boeing’s conduct may be far from resolved, but the public debate about the case and its implications is well under way.
Background of Dispute Over Dreamliner Production.
According to the NLRB complaint and a “fact sheet” issued by the acting general counsel, the International Association of Machinists has represented Boeing production and maintenance employees in the Puget Sound area of Washington, and in Portland, Ore., in two bargaining units that have been covered by a series of collective bargaining agreements, including the most recent contract running from Nov. 2, 2008, to Sept. 8, 2012.
The complaint alleges that during the course of the long-standing bargaining relationship, IAM engaged in strikes against Boeing in 1977, 1989, 1995, 2005, and 2008.
The company, which has a backlog of orders for the Dreamliner, announced in October 2009 that it would build an assembly line in North Charleston, S.C., rather than in the Puget Sound area (207 DLR A-7, 10/29/09). The company said it planned to produce three Dreamliners per month in South Carolina in addition to seven per month at the Puget Sound facility.
Boeing’s announcement came about one month after employees at the South Carolina plant voted 199-68 to decertify IAM District Lodge 751 as their bargaining agent (175 DLR A-10, 9/14/09). The announcement came the same day the South Carolina legislature approved an economic development package that provided incentives for Boeing to expand in South Carolina.
Both Boeing and the union said in statements April 20 that they engaged in extensive discussions about adding production capacity in Puget Sound, where the union represents employees, but they failed to reach agreement, and the union filed an unfair labor practice charge in the board’s Seattle regional office on March 26, 2010.
NLRB Complaint Alleges Unlawful Action.
The IAM unfair labor practice charge was investigated in the board’s Seattle office but was referred to NLRB’s Division of Advice for consideration. Discussions of possible settlement of the case were unproductive, and the acting general counsel authorized the issuance of a complaint, which was signed by the Seattle regional director and issued April 20.
The complaint alleges that the company’s actions violated National Labor Relations Act Section
According to the complaint, company officials made five comments between October 2009 and March 2010 that connected the plan for South Carolina production of 787s to the company’s experience with IAM-sponsored strikes and its concern about future work stoppages. Solomon alleged that Boeing’s comments, including remarks on the company intranet website and in published news reports, communicated a coercive message to employees that the company “would remove or had removed work from the [IAM bargaining] Unit because employees had struck.”
The complaint also asserted that “combined with” the company’s comments about the union-represented employees and strikes, the company’s transfers of work were “inherently destructive” of the employee rights guaranteed by the NLRA.
Solomon said as part of a remedy to address the company’s unfair labor practices, he seeks an order requiring Boeing to have IAM-represented employees in Washington operate the company’s second Dreamliner production line, using supply lines maintained by bargaining unit employees in Washington and Oregon. However, he added, the requested relief would not prohibit Boeing from making nondiscriminatory decisions about where the company’s work will be performed.
Boeing Denies Any Violation of the NLRA.
Boeing has filed a formal answer to the NLRB complaint, denying the commission of any unfair labor practice and alleging that the company made its decision to place work “based upon a number of varied factors,” including South Carolina’s business environment and state government financial incentives, “achieving geographic diversity of its commercial airline operations,” and protecting the “stability” of 787 production.
“In any event,” the company asserted, even ascribing an intent to Boeing that it placed the second line in North Charleston so as to mitigate the harmful economic effects of an anticipated future strike would not be evidence that the decision to place the second assembly line in North Charleston was designed to retaliate against the IAM for past strikes.”
The company also contended in the answer that it would have made the same decision about building its second production line in South Carolina “even if it had not taken into consideration the damaging impact of future strikes on the production of 787s.”
Boeing has contended in its NLRB answer, and in subsequent statements about the case, that its conduct could not have been, as alleged by the acting general counsel, “inherently destructive” of employee rights under the NLRA.
In a lengthy written statement submitted to the Senate Health, Education, Labor, and Pensions committee, Boeing’s general counsel, J. Michael Luttig, said statements by Boeing executives about work stoppages in the Puget Sound area reflected Boeing’s “forthright acknowledgement” that concern about “future production stability” contributed to its business decision.
“That Boeing considered as one part of its business decision the benefits of improving production stability by avoiding strikes is not improper anti-union animus,” Luttig contended in the paper, arguing that the U.S. Supreme Court has held some of the actions employers take to protect themselves from the effect of strikes are not violative of Section 8(a)(3) even if they have a practical effect of discouraging union membership.
Noting Boeing’s effort to “reach out” to the IAM to explore options for placing all Dreamliner production in the Northwest was unsuccessful, Luttig argued that the effort “wholly undermines any suggestions that the Company wanted to punish the IAM.”
“Put another way,” Luttig argued, “the NLRA is not so slanted in favor of unions that a union’s failure to achieve its goals at the bargaining table establishes that the employer was acting from anti-union animus, rather than for legitimate business reasons.”
GOP Lawmakers Very Critical of NLRB.
The same day that the NLRB complaint was issued, Sen. Jim DeMint (R-S.C.) asserted in a statement that the complaint against Boeing was “nothing more than a political favor for the unions who are supporting President Obama’s re-election campaign.”
Alan Wilson, the attorney general of South Carolina, and eight other attorneys general from right-to-work states, told Solomon in an April 28 letter that the complaint “represents an assault upon the constitutional right of free speech, and the ability of our states to create jobs and recruit industry.”
The state officials told Solomon that “[y]our only justification for the NLRB’s unprecedented retaliatory action is to aid union survival” and called upon the acting general counsel to “cease this attack on our right to work, our states’ economies, and our jobs.” The same day, Wilson wrote to members of Congress, asking them to “share our letter with your colleagues and … join us in calling upon Mr. Solomon and the NLRB to stop their aggressive actions against South Carolina, our citizens, and our right-to-work.”
A day later, Nikki Haley, the Republican governor of South Carolina, wrote an op-ed piece in the Wall Street Journal calling the complaint against Boeing “a direct assault” on right-to-work states, and asserting that President Obama “has been silent since his hand-selected NLRB General Counsel Lafe Solomon, who has not yet been confirmed by the United States Senate as required by law, chose to engage in economic warfare on behalf of the unions last week.”
“The nation deserves an explanation as to why the president’s appointees are doing the machinist union’s dirty work on the backs of the businesses and workers of South Carolina,” Haley wrote.
On May 3, the 10 Republican senators on the HELP Committee wrote to Solomon, stating that they disagreed with the issuance of a complaint and warning that while the case was still in a preliminary stage, “the Board” would need to explain its reasoning to Congress. “As your nomination is brought before our Committee,” the HELP Committee Republicans wrote, “we will be asking for a greater explanation of your actions.”
Two days later, on May 5, Sen. Orrin Hatch (R-Utah), spoke on the floor of the Senate and said, “Boeing did nothing wrong and I’m confident it will ultimately prevail.” Hatch argued that the company lawfully chose to locate new Dreamliner work in a business-friendly state that had a right to-work law. He added that Solomon’s complaint was “an effort by Washington Democrats and career bureaucrats to force unionism on the entire country.” Hatch called the action “no less than economic warfare being waged by the NLRB on behalf of President Obama’s friends.”
At a May 10 press conference called by the U.S. Chamber of Commerce and attended by legislators and South Carolina public officials, Sen. Lindsey Graham (R-S.C.) blasted NLRB for the Boeing complaint, and aimed very critical comments at Solomon.
Calling the unfair labor practice complaint “legal slander,” Graham said “nobody in their right mind would make these conclusions unless you had an agenda beyond the law.” He urged Obama to withdraw Solomon’s nomination to a full term as general counsel, stating that Solomon “will never see the light of day in the Senate.”
Harkin, Reid Warn of Political ‘Interference.’
But on May 11, Sen. Tom Harkin (D-Iowa), chairman of the Senate HELP committee, made a speech on the floor of the Senate, stating that “dramatic responses” to the Boeing complaint “have needlessly complicated the issue and the NLRB’s process.”
Harkin said that some legislators had made threatening comments about funding for NLRB and had attempted to link the fate of NLRB nominations pending before the HELP Committee to the outcome of the Boeing litigation.
“These actions threaten the integrity of our judicial and prosecutorial processes,” Harkin argued, stating that “this case—like any adjudication handled by an independent agency—should be determined based on the facts and the law, not politics.”
Harkin also argued that the NLRB proceeding had been inacccurately characterized as an attack on right-to-work states or laws. Harkin, representing Iowa, which is one of the states with a right-to-work law, said: “There is absolutely no way that the outcome of this case could affect in any way the right to work laws of any state.”
“Unions are one of the few voices left in our society speaking up for the little guy, and the rights provided in the NLRA are one of the few tools that workers can use to stand up for fair treatment, including good American jobs that pay good American wages and benefits,” Harkin told the Senate.
Sen. Harry Reid (D-Nev.) also addressed the Senate on May 11, asserting that the HELP Committee Republicans and state attorneys general who had pressed for the withdrawal of the NLRB complaint against Boeing were acting before an ALJ had even considered the allegations against the company.
“This kind of interference is inappropriate,” Reid argued. “It’s disgraceful and dangerous.” Stating that “we need agencies like the NLRB to be able to operate freely and without political pressures,” Reid said the Senate should be reminded that “prejudging the case is not our job.”
House Committees Probe NLRB, Boeing Complaint.
In a May 5 letter to Solomon, House Education and the Workforce Committee Chairman John Kline (R-Minn.) and Phil Roe (R-Tenn.), chairman of the panel’s Health, Employment, Labor, and Pensions Subcommittee, acknowledged that the facts of NLRB’s Boeing proceeding “are still in dispute,” but they expressed concern that the case “could have significant consequences for job-creators and workers.”
Kline and Roe observed that the NLRB complaint “references alleged statements made by Boeing officials between October 2009 and March 2010 that work stoppages were one reason for choosing the new location.” But they observed that in June 2010, NLRB’s Seattle regional director, Richard Ahearn, was quoted by the Seattle Times as saying “it would have been an easier case for the union to argue if Boeing had moved existing work from Everett[, Wash.], rather than placing new work in Charleston.”
The chairmen said that 10 months after the newspaper interview, Ahearn signed the unfair labor practice complaint against Boeing, which Solomon has said he authorized. Kline and Roe said “[t]he pivot in position by NLRB officials, as well as the unusual timing, raises serious concerns that warrant congressional inquiry.”
They asked Solomon to provide by May 19 “a description of what transpired between June 2010 and April 2011 that led the NLRB to alter its opinion in this matter,” as well as all documents and communications between the NLRB regional and national offices concerning the case. The House panel also asked for all documentation that supports the NLRB view that work “is being ‘transferred’ in this case,” as well as “[p]ast precedent that supports a finding that Boeing violated sections
On May 12, in a letter that made no mention of the Kline/Roe request, Rep. Darrell Issa (R-Calif.), chairman of the House Committee on Oversight and Government Reform, sent another letter to Solomon.
The chairman noted the acting general counsel’s complaint against Boeing had drawn the company’s denials of unlawful action, as well as opposition to the action by the attorneys general of nine states. Issa added that Solomon had directed NLRB attorneys to file lawsuits challenging the validity of state secret ballot constitutional amendments (88 DLR AA-1, 5/6/11).
“The Committee is carefully evaluating labor policy given the current economic climate,” Issa wrote, stating “[t]he NLRB’s recent actions to address labor activity are likely to impact America’s economic recovery.”
Issa’s committee requested production of “all documents and communications referring or relating to the Office of General Counsel’s investigation of Boeing,” all documents and records of communications between “anyone” in NLRB and IAM, and “all documents referring or relating to the Office of General Counsel’s investigation of union election laws in Arizona, South Carolina, South Dakota, and Utah.”
Issa’s committee will apparently follow up after documents are produced by conducting a hearing on the Boeing case. The Greenville News reported May 17 that Rep. Trey Gowdy (R-S.C.), a member of the committee, said Issa has agreed to conduct a June field hearing in South Carolina on the Boeing complaint.
According to the newspaper account, Gowdy expects to question NLRB officials at the hearing, and promised to ask them: “What were you thinking? Are you trying to intimidate South Carolina? Are you a shill for the unions? Who put you up to this?”
An NLRB spokesperson told BNA May 17 the agency had not been advised of a Government Operations Committee hearing or asked to participate.
Senate Bill Would Limit Board’s Authority.
Making good on Senate Republicans’ warnings that they would seek a legislative remedy for their concerns about the complaint against Boeing, Sen. Lamar Alexander (R-Tenn.) May 12 introduced legislation with 33 co-sponsors to amend the NLRA.
In a statement on the floor of the Senate, Alexander said that the proposed Job Protection Act (S. 964), “is occasioned by” Solomon’s approval of an unfair labor practice complaint “to stop the Boeing Company from building airplanes at a nonunion plant in South Carolina, suggesting that a unionized American company cannot expand its operations in 1 of 22 States with a right-to-work law.”
The bill would amend Section
Provided further, That the Board shall have no power to order any employer to relocate, shut down, or transfer any existing or planned facility or work or employment opportunity, or prevent any employer from making such relocations, transfers, or expansions to new or existing facilities in the future, or prevent any employer from closing a facility, not developing a facility, or eliminating any employment opportunity unless and until the employer has been adjudicated finally to have unlawfully undertaken such actions—
(1) without advance notice to the labor organization, if any, representing the bargaining unit of the affected employees, of the economic reason(s) for the relocation, shut down, or transfer of existing or future work; or
(2) as a primary and direct response to efforts by a labor organization to organize a previously unrepresented workplace.
The bill would also add a new subsection to the act, providing in similar language that nothing in the NLRA shall prevent an employer from choosing where to relocate, develop, or expand plants or facilities.
The statutory proposal also would broaden an employer’s freedom of speech under the NLRA. Section
“Provided further, That an employer’s expression of any views, argument, or opinion related to the costs associated with collective bargaining, work stoppages, or strikes, or the dissemination of such view, arguments, or opinions, whether in written, printed, graphic, digital, or visual form, shall not constitute or be evidence of antiunion animus or unlawful motive, if such expression contains no threat of reprisal or force or promise of benefit.”
The proposed Job Protection Act does not directly mention or address the Boeing dispute, but Alexander stated in his remarks that the bill would “preserve the federal law’s current protection of state right-to-work laws in the [NLRA] and provide necessary clarity to prevent the NLRB from moving forward in their case against Boeing or attempting a similar strategy against other companies.”
Legislation, Furor Over NLRB Case Questioned.
Charles J. Morris, professor emeritus at Southern Methodist University’s Dedman School of Law, reviewed the text of S. 964 and wrote to Alexander May 16 suggesting that Alexander and the co-sponsors withdraw the legislation.
Morris commented that with the exception of the bill’s free speech language, the proposed legislation attempts to change the outcome of the Boeing litigation by altering the board’s authority to issue orders in unfair labor practice cases.
Arguing that the proposed amendment would have no effect on Boeing if it were cleared of committing an unfair labor practice, the professor said that the legislation would therefore be of significance only if Boeing is found responsible for violating the NLRA. Congressional approval of S. 964 “would confirm to the public that Boeing was indeed guilty of such conduct,” and would actually be prejudicial to the company, Morris argued.
“[T]here are many conceivable reasons” why Boeing may not be in violation of the federal labor law, Morris wrote. “If the work in South Carolina is not work that would otherwise be performed in the existing Washington State bargaining unit, that scenario would not ordinarily meet the definition of a ‘runaway shop,’ ” he said. Morris added that “[e]ven if the Board were to find a retaliatory intent, the relocation would not be a violation if the economic reason for that action is one that would have been made regardless of the anti-union motive, i.e., it would be viewed as a mixed motive case.”
In addition to arguing that the bill might prejudice Boeing, Morris argued that “[a]lthough the complaint in the Boeing case is not aimed at right-to-work states, it is evident that S. 964 is aimed at non-right-to-work states—whether or not it was so intended—for it would provide an easy means for unionized employers in non-right-to-work states to openly and legally move to non-union locations simply by giving ‘advance notice to the labor organization’ … that the move was being made for alleged ‘economic reasons,’ such as that it is deemed cheaper to operate non-union.”
“S. 964 would thus provide the means to make unionization almost totally impossible where it does not already exist, and where it does presently exist it would provide an attractive method for employers to use for legally moving to nonunion locations,” Morris wrote. “In other words, the proposed amendment would be the tail that wags the NLRA dog,” he said, arguing “[t]he NLRA could become virtually useless to employees and unions, but would continue to be extremely useful to employers to protect them from secondary and other outlawed union activity.”
Complaint Still to Be Tested, Professor Points Out.
Ellen Dannin, a professor of law at Penn State Dickinson School of Law, questioned the furor over the issuance of a complaint against Boeing that has not yet been tested before an ALJ or the NLRB.
Dannin told BNA May 16 that the standard for issuance of an unfair labor practice complaint—whether the general counsel has reasonable cause to believe an unfair labor practice has occurred—is different than the standard that will be applied when an ALJ considers the case. Boeing will be able to present its defense in the administrative litigation, and the acting general counsel will have the burden of establishing that the company violated the NLRA.
Commenting that “this is why you have trials,” Dannin said that courts have traditionally considered that NLRB has the expertise necessary to examine the strength or weakness of unfair labor practice allegations. She said the case against Boeing can and should be resolved in the administrative process, with appropriate judicial review.
Noting that the unfair labor practice complaint and the NLRB proceeding do not present an “anti-right-to-work” issue, Dannin said she was surprised by the intense criticism of NLRB and “disappointed more people haven’t read the complaint.”
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