Experts Say Allegations In NLRB Complaint Against Boeing Represent "Classic" Case Of Labor Law Violations

››› ››› ADAM SHAH

Conservative media figures continue to claim that the National Labor Relations Board is attacking states with lax labor laws and engaging in "unprecedented" actions by filing a complaint alleging that Boeing violated federal labor laws in connection with its decision to move the production line for its new 787 Dreamliner to South Carolina. In fact, labor law experts say that if the allegations against Boeing are true, the NLRB has presented a "classic" case of labor law violations.

Conservative Media Attack Supposedly "Unprecedented" NLRB Complaint Against Boeing

WSJ's Moore On NLRB Complaint: "We've Never Seen Anything Like That Before ... In The History Of This Country." On Fox News' Your World, host Neil Cavuto claimed that the NLRB complaint against Boeing was "a controversial move by the government telling Boeing where it can and cannot create jobs." The Wall Street Journal's Steve Moore responded by calling the complaint "unprecedented":

CAVUTO: In response to a controversial move by the government telling Boeing where it can and cannot create jobs, a legislative bomb: 34 Republican senators signing on to the Job Protection Act. It's a piece of legislation designed to make sure the government doesn't get into this type of business of telling businesses where to do business.

[...]

MOORE: What's really unprecedented, I would say, about this National Labor Relations Board decision is that they're basically telling a company, an American company, you have to stay in the state that you're in. You can't move your facility. And by the way, in this case, in Boeing's case, this is not even an existing facility; it's a new plant that they want to build. The NLRB is basically saying, you know what, you cannot build it in South Carolina. You have to remain in Washington. We've never seen anything like that before that I know of in the history of this country. [Fox News, Your World With Neil Cavuto, 5/13/11]

Moore And Laffer: The NLRB Complaint Marks "The First Time A Federal Agency Has Intervened To Tell An American Company Where It Can And Cannot Operate A Plant." From a May 13 opinion piece in The Wall Street Journal co-authored by Moore and economist Arthur Laffer:

The NLRB's action, which Boeing will challenge at a hearing next month, is a big deal. It's the first time a federal agency has intervened to tell an American company where it can and cannot operate a plant within the U.S. It lays the foundation of a regulatory wall with one express purpose: to prevent the direct competition of right-to-work states with union-shop states. Why, as South Carolina Gov. Nikki Haley recently asked on these pages, should Washington have any more right to these jobs than South Carolina?

A recent New York Times editorial justified the NLRB decision by arguing that unions are suffering from "the flight of companies to 'Right-to-Work' states where workers cannot be required to join a union." That's for sure, and quite an admission. We've been observing that migration pattern for years, but liberals have denied it's actually happening -- until now. [The Wall Street Journal, 5/13/11]

George Will: NLRB Complaint Interpreted Statute "Perversely, [And] Disregarded Almost Half A Century Of NLRB And Supreme Court Rulings." From George Will's May 13 Washington Post column:

This summer, the huge Boeing assembly plant here will begin producing 787 Dreamliners -- up to three a month, priced at $185 million apiece. It will, unless the National Labor Relations Board, controlled by Democrats and encouraged by Barack Obama's reverberating silence, gets its way.

Last month -- 17 months after Boeing announced plans to build here and with the $2 billion plant nearing completion -- the NLRB, collaborating with the International Association of Machinists and Aerospace Workers (IAM), charged that Boeing's decision violated the rights of its unionized workers in Washington state, where some Dreamliners are assembled and still will be even after the plant here is operational. The NLRB has read a 76-year-old statute (the 1935 Wagner Act) perversely, disregarded almost half a century of NLRB and Supreme Court rulings, and patently misrepresented statements by Boeing officials.

South Carolina is one of 22 -- so far -- right-to-work states, where workers cannot be compelled to join a union. When in September 2009, Boeing's South Carolina workers -- fuselage sections of 787s already are built here -- voted to end their representation by IAM, the union did not accuse Boeing of pre-vote misbehavior. Now, however, the NLRB seeks to establish the principle that moving businesses to such states from non-right-to-work states constitutes prima facie evidence of "unfair labor practices," including intimidation and coercion of labor. This principle would be a powerful incentive for new companies to locate only in right-to-work states. [The Washington Post, 5/13/11]

Breitbart: NLRB Engaged In "Thuggery" By Telling "People [They] Can't Move Their Companies Where They Want To." From a May 6 segment on Fox Business' Follow The Money, featuring right-wing gadfly Andrew Breitbart:

BOLLING: So is the NLRB-President Obama love affair going to take down the free market project? Andrew, I've heard you say it. You've said you don't like thuggery. Isn't this an example of union thuggery?

BREITBART: Yeah. No. I didn't know that much about unions before this presidency. But what I have seen, the only people that we know who have gone to the White House hundreds of times are Richard Trumka and Andy Stern. This is a presidency that's being run by proxy by way of the unions. And it's thuggery. It's happening in battles that you see in terms of people versus people in Wisconsin, the thuggery against the Tea Party up there. I was attacked in Searchlight, Nevada by the IBEW Local 357. The Tea Party Express bus was hit by eggs as they were passing by. I'm looking at this type of thing. It's anti-capitalism. It's anti-capitalism. The idea that these people can't move their companies where they want to. And I swear, it is President Trumka. When it comes to the fiscal policies of this country, the unions are leading the charge. [Fox Business, Follow the Money, 5/6/11, via Media Matters]

NLRB Complaint Actually Alleges Boeing Moved Work To SC Because Unionized Workers Engaged In "Lawful Strikes"

Complaint Alleges Boeing CEO Said He Was "Moving The 787 Dreamliner Work To South Carolina Due To 'Strikes Happening Every Three To Four Years' " In Washington State. From the complaint against Boeing filed by the NLRB general counsel's office:

[Boeing president, chairman, and CEO, Jim McNerney] made an extended statement regarding "diversifying [Respondent's] labor pool and labor relationship," and moving the 787 Dreamliner work to South Carolina due to "strikes happening every three to four years in Puget Sound." [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

Complaint Alleges Boeing Decided To Transfer 787 Production To SC Because Washington State Employees "Engag[ed] In ... Lawful Strikes" And To "Discourage" Such Activity In The Future. From paragraph 7 of the complaint:

(a) In or about October 2009, on a date better known to Respondent, but no later than October 28, 2009, Respondent decided to transfer its second 787 Dreamliner production line of 3 planes per month from the Unit to its non-union site in North Charleston, South Carolina.

(b) Respondent engaged in the conduct described above in paragraph 7(a) because the Unit employees assisted and/or supported the Union by, inter alia, engaging in the protected, concerted activity of lawful strikes and to discourage these and/or other employees from engaging in these or other union and/or protected, concerted activities.

(c) Respondent's conduct described above in paragraph 7(a), combined with the conduct described above in Paragraph 6, is also inherently destructive of the rights guaranteed employees by § 7 of the Act. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

Complaint Specifically Says Boeing Is Free To Make "Non-Discriminatory Decisions" About "Where Work Will Be Performed." The complaint asks that the 787 production line that was moved to South Carolina allegedly for the illegal purposes of punishing Washington state workers for going on strike be moved back to Washington state. However, the complaint adds that it "does not seek to prohibit [Boeing]" from having work performed in South Carolina or anywhere else as long as Boeing does not violate labor laws in making such decisions. From paragraph 13 of the complaint:

(a) As part of the remedy for the unfair labor practices alleged above in paragraphs 7 and 8, the Acting General Counsel seeks an Order requiring Respondent to have the Unit operate its second line of 787 Dreamliner aircraft assembly production in the State of Washington, utilizing supply lines maintained by the Unit in the Seattle, Washington, and Portland, Oregon, area facilities.

(b) Other than as set forth in paragraph 13(a) above, the relief requested by the Acting General Counsel does not seek to prohibit Respondent from making non-discriminatory decisions with respect to where work will be performed, including non-discriminatory decisions with respect to work at its North Charleston, South Carolina, facility. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

Labor Law Expert: If Allegations Are True, This Is An "Absolutely Standard Violation" Of Federal Labor Laws

Labor Law Professor Brudney: "Relocating Work Away From A Plant Because Of Too Much Lawful Union Activity Would Be A Classic Violation" Of Federal Labor Laws. In a telephone interview with Media Matters, James J. Brudney, the Newton D. Baker-Baker & Hostetler Chair in Law at Ohio State University's Moritz College of Law, said: "Relocating work away from a plant because of too much lawful union activity would be a classic violation of 8(a)(3)" of the National Labor Relations Act, which makes it illegal for employers "to discriminat[e] in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." [Phone interview with Media Matters, 5/11/11]

Labor And Employment Law Professor Fisk: If NLRB General Counsel's Complaint Is True, This Is An "Absolutely Standard Violation" Of Federal Labor Laws. In a telephone interview with Media Matters, University of California-Irvine Chancellor's Professor of Law Catherine Fisk said that if the NLRB general counsel's complaint is true, this is an "absolutely standard violation of Section 8(a)(1) [of the National Labor Relations Act], which has been in the statute since 1935 and prohibits retaliation against employees for protected activities" such as forming a union, engaging in collective bargaining, and striking. Fisk also said that she saw "nothing controversial" about the complaint. [Phone interview with Media Matters, 5/11/11]

Fisk: Company Violates Federal Labor Laws If It Relocates Work For Purposes Of "Seeking To Stop Workers From Engaging In Unionizing, Collective Bargaining, And Striking." Fisk also said that the case against Boeing is "all about whether the company was retaliating for the workers' decision to unionize" or engage in another protected activity like striking. She said, "It is permissible for an employer to move work to find lower wages," but it violates labor laws if they do it for the purpose of "seeking to stop workers from engaging in unionizing, collective bargaining, and striking." [Phone interview with Media Matters, 5/11/11]

Labor Law Professor Secunda: Complaint Against Boeing Shows The NLRB Is "Carrying Out Its Congressionally Mandated Mission To Protect The Right Of Workers To Engage In Concerted Activity." From a Seattle Times editorial by Marquette University Law School associate professor Paul Secunda:

The National Labor Relations Act gives workers the unequivocal right to engage in concerted activity -- including the right to strike. Boeing stated publicly that it was moving production away from Washington because its workers there previously went on strike and could go on strike again in the future.

Such comments amount to an admission from the company that it was intentionally retaliating against employees and trying to limit their rights -- a clear affront to the law that the NLRB is charged with enforcing.

At the end of the day, what we are seeing is the agency carrying out its congressionally mandated mission to protect the right of workers to engage in concerted activity for mutual aid and protection. The agency is simply enforcing the law, providing balance and fairness for workers and businesses alike. [The Seattle Times, 4/29/11]

Labor Law Professor Hirsch: Boeing Allegations Involve A "Relatively Straightforward Case Of An Employer Punishing Workers For Striking." From a post on the Workplace Prof Blog by University of Tennessee College of Law associate professor Jeffrey Hirsch:

I've been surprised at how much attention is getting paid to the NLRB General Counsel's complaint against Boeing. Based on what I've seen, the conservative uproar to what, based on the allegations is a relatively straightforward case of an employer punishing workers for striking (with admittedly large potential economic impacts), is way out of proportion. But this editorial from the Wall Street Journal (subscription required, but if you Google the title, you can find it free) and the legislation it describes, has now entered the bizzaro stage.

As for the editorial, even taking into account the normal tenor one would expect from a WSJ editorial, I honestly don't ever remember seeing any piece of writing with so many inaccuracies. For instance, there's the title, which states that there is a Board ruling (it's just a GC complaint); the description of the remedy to shut down production in South Carolina (the GC doesn't seek that, it would just require Boeing to maintain production in Washington; and the argument that the complaint requires employers to stay in non-right-to-work states (I don't even know where to begin). Two minutes with a fact-checker would've had these cut, although that would've undermined the purpose of the editorial and its support for the legislation. [Workplace Prof Blog, 5/4/11]

Labor Law Expert: Boeing Case Is Part Of "A Very Long Line Of Cases ... NLRB Has Been Pressing Since The 1940s"

Fisk: Complaint Against Boeing Is Part Of "A Very Long Line Of Cases That The NLRB Has Been Pressing Since The 1940s." Fisk also said that the complaint against Boeing is part of "a very long line of cases that the NLRB has been pressing since the 1940s, when employers began moving work from unionized workplaces in the industrial Northeast to non-unionized workplaces in the Southeast and later the Southwest." [Phone interview with Media Matters, 5/11/11]

Brudney: "If You Undergo A Partial Closing For Anti-Union Reasons, That May Be An Unfair Labor Practice If It Was Done To Chill Protected Union Activity In The Future." Pointing to the 1965 Supreme Court case of Textile Workers Union v. Darlington Manufacturing Co., Brudney observed that a company is allowed to go out of business because of union activity, but "if you undergo a partial closing for anti-union reasons, that may be an unfair labor practice if it was done to chill protected union activity in the future." If done for that reason, under Darlington it would be unlawful under federal labor law. [Phone interview with Media Matters, 5/11/11]

  • Supreme Court In Darlington: "A Partial Closing Is An Unfair Labor Practice ... If Motivated By A Purpose To Chill Unionism In Any Of The Remaining Plants Of The Single Employer." From the Supreme Court's majority opinion in Darlington:

The closing of an entire business, even though discriminatory, ends the employer-employee relationship; the force of such a closing is entirely spent as to that business when termination of the enterprise takes place. On the other hand, a discriminatory partial closing may have repercussions on what remains of the business, affording employer leverage for discouraging the free exercise of [National Labor Relations Act] § 7 rights among remaining employees of much the same kind as that found to exist in the "runaway shop" and "temporary closing" cases. Moreover, a possible remedy open to the Board in such a case, like the remedies available in the "runaway shop" and "temporary closing" cases, is to order reinstatement of the discharged employees in the other parts of the business. No such remedy is available when an entire business has been terminated. By analogy to those cases involving a continuing enterprise, we are constrained to hold, in disagreement with the Court of Appeals, that a partial closing is an unfair labor practice under § 8(a)(3) if motivated by a purpose to chill unionism in any of the remaining plants of the single employer and if the employer may reasonably have foreseen that such closing would likely have that effect. [Textile Workers Union v. Darlington Manufacturing Co., 3/29/65 (citation and footnote omitted)]

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