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Not with a bang, but with a whimper

July 19th, 2012  |  Matt Pavich

The NLRB-Boeing controversy came to a very quiet end this week, when the NLRB’s Division of Advice recommended dismissing unfair labor practice (ULP) charges brought against District Lodge 751 of the International Association of Machinists (IAM), the union local involved in 2011’s highly controversial NLRB complaint against The Boeing Company. The memo (Case Nos. 11-CB-4313, 11-CB-071705, and 11-CB-071710) may give more ammunition to the critics who believed that the Board only took the case in order to punish Boeing for anti-union complaints. Hopefully, it will also put an end to one of the most controversial events in recent Board history.

The history is, by now, familiar. The union began representing employees at the South Carolina facility of Boeing’s predecessor employer in 2007. The charging parties in the instant case, Boeing employees, alleged that the employees at the North Charleston, South Carolina facility were unhappy that the terms of the subsequent contract were worse than the benefits that the employees had enjoyed prior to representation by the union. According to the charging parties, the employees knew that Boeing was looking for a facility at which to build its new 787 Dreamliner and believed that decertification would make the facility more attractive to Boeing. After Boeing bought the facility, the employees filed for decertification. The union lost the election and published reports indicated that union intended to block production of the new airplane at the South Carolina facility.

In October 2009, Boeing announced that it would place production of a second 787 line in South Carolina. The union filed ULP charges against Boeing, alleging that the decision was retaliation for a strike by the union at Boeing’s Everett, Washington facility. The NLRB issued a complaint against Boeing and while that dispute was pending, the union began a second organizing effort at the South Carolina facility and the charging parties alleged that the union promised it would resolve its dispute with Boeing if it prevailed.

The parties did, in December 2011, resolve the dispute and the agreement was accompanied by a Side Letter which provided that, should the economics be feasible, Boeing would locate 737Max work in Washington State. The charging parties then filed the instant charges against the union.

No retaliation. The Division recommended dismissing the charges, finding no evidence that the union filed its ULP charges against Boeing in retaliation for the decertification campaign. The division similarly found no evidence that the union promised to withdraw its Boeing charges if it won the representation election, that the union filed those charges to ensure placement of the 787 line in Washington State, or that Boeing and the union entered into their agreement in order to place work in so-called “right-to-work” states.

The Division found that statements by the union president that he would do what he could to ensure that no work was placed in the South Carolina facility did not imply that the union filed the Boeing charges merely in retaliation for the decertification election, rather than to vindicate the rights of union members in Washington State. Additionally, the only evidence that the union promised to withdraw the Boeing charges were unsubstantiated rumors. Finally, the Division found that Boeing’s own statement in the Side Letter that the agreement did not affect work at the South Carolina facility undercut the argument that the union and Boeing had plotted to block working going to that facility.

Lastly, the Division found no merit in the charge that the union had failed to give the charging parties notice of the December 2011 hearing in which the agreement with Boeing was finalized. The Board had given the charging parties intervenor status solely to allow them the chance to vindicate the rights of the South Carolina employees in the Boeing-union dispute. As the Boeing attorney stated in the hearing that it would have no effect on the South Carolina employees, the Division found that the union’s failure to give the charging parties an opportunity to be heard at the hearing did not violate the Act.