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NLRB v Boeing (and everyone else)

May 10th, 2011  |  Matt Pavich

On April 20, 2011, NLRB Acting General Counsel Lafe Solomon issued a complaint against the Boeing Company, alleging that the airline manufacturer decided to place a production line for its 737 fleet in a non-unionized, South Carolina factory, in retaliation for work actions instituted by the union that represented Boeing employees at its Everett, Washington facility, where the first 737 line was placed. The complaint alleged that statements by Boeing officials suggested that the move was in response to both a strike, and future potential strikes, by the International Association of Machinists. If true, such a comment would constitute a violation of the NLRA. The matter seemed fairly cut and dried. Or, rather, it would have seemed cut and dried had you been living under a rock for the last ten years.

Conservative critics, sensing the opportunity to promote the “right-to-work” movement, pounced. The very next day, Representative John Kline (R-Minn) who chairs the Committee that oversees the NLRB, issued a statement blasting “an activist NLRB” for looking out for unions, rather than ensuring that all workers could compete for jobs. This statement came with a proviso that “the facts of the case are still in dispute,” but that lack of clarity didn’t stop Kline from condemning the Board. On the Senate side, Jim DeMint (R-SC) didn’t even wait a day before shredding the complaint as “nothing more than a political favor for the unions who are supporting President Obama’s re-election campaign.” Like Kline, DeMint warned that the decision would “have a chilling effect on job growth in my state and in right-to-work states across the country.” Never one to shy from hyperbole, DeMint solemnly vowed that he would “stop the President from carrying out this malicious act.”

At least he was from South Carolina and at least his attack was timely. DeMint’s Republican colleague Rand Paul (R-KY) demanded on Tuesday, May 10, that President Obama “rescind this assault on business.” Paul then took the hyperbole to a whole new level, suggesting that the complaint was motivated by the President’s “enemies list.

The common thread in all the handwringing over the complaint is that the NLRB (and, by implication, the White House) have gone after the entire “right-to-work” movement with the Boeing complaint. But does that argument really hold water?

The complaint clearly states that the statements by Boeing officials led to the issuing the complaint. It references a videotaped statement by a Boeing official that “the overriding factor (in transferring the line) was not the business climate. And it was not the wages we’re paying today. It was that we cannot afford to have a work stoppage, you know, every three years.” That statement could be easily interpreted as an attempt by the Company to coerce the unionized employees in the exercise of their statutorily protected right to strike. Such an attempt would violate the NLRA and it’s as simple as that. While the complaint does hint at the benefits to Boeing of setting up shop in a non-union facility, it never mentions South Carolina’s status as a right-to-work state. Indeed, the impression from the complaint is that the NLRB would have issued the complaint had Boeing merely placed the line in a non-union facility in any state.

What would Solomon’s critics have him do? Boeing officials suggested on the record that the Company was placing the line in South Carolina because the IAM represented employees at the facility where production work was being done and the IAM had struck in the past. The comment also suggested that Boeing feared future strikes. Such coercive comments violate the NLRA. Should Solomon have ignored the law because the line was placed in a right-to-work state?

The damage that can be done to the labor and employment landscape by over-zealous politicians is incalculable. If the Board starts to fear that angry legislators will seek to punish it merely for issuing complaints that may, however tangentially, involved a prime piece the right’s war on organized labor, the Board may begin to tailor its decisions to appease its fiercest critics. And, let us not forget, the Board has only issued a complaint. The Board has not made any decisions or rulings and Boeing is free to explain the statements made by its executives. As Solomon said in a release on Monday, May 9, “at any point in this process, the parties could reach a settlement agreement and we remain willing to participate in any such discussions at the request of either or both parties.  We hope all interested parties respect the legal process, rather than trying to litigate this case in the media and public arena.”

That temperance and calm is both rational and wise. It is suggested here that the politicians attacking Solomon, the Board and the President put down their rhetorical swords before real damage is done.