Boeing settled?

The Seattle Times is reporting Boeing and the Machinists' union have reached a tentative agreement on a 4 year deal that will secure Washington state as the location of the company's fabrication of the 737MAX. The agreement purportedly includes a resolution of the unfair labor practice complaint issued over the relocation of part of the 787 fabrication to South Carolina. Previous posts here and here. The NLRB case has become a volatile political issue. Although NLRB Acting General Counsel Lafe Solomon must approve any settlement of the case, it is unlikely the NLRB will stand in the way of a settlement pushed by the IAM. Supporters of the Company's relocation of work to South Carolina should also be happy as the fabrication facility there will continue operations if the settlement is ratified by the union membership and approved by Solomon.

Boeing case delayed

The high-profile unfair labor practices case against Boeing is stalled pending federal court enforcement of NLRB subpoenas to the company for documents. It is unlikely the case will be resolved before the end of 2011. At that point, it is likely the NLRB will no longer have a quorum of 3 members. Member Becker's recess appointment ends in December. Congressional Republicans are likely to filibuster any appointments thereby preventing the Board from having the third member necessary to function. A recess appointment is a possibility, but that requires a recess, something republicans have avoided by keeping Congress in session. Previous posts here.

Three law Profs take on Boeing

Three labor law professors have an op-ed piece in the New York Times. In defense of the NLRB they pose the question in an analogous, but simple way.

Everyone agrees that a company may legally locate its production anywhere it wishes and for any reason — except retaliatory ones. Imagine if Boeing had deliberately located a new plant in an area with a predominantly white labor force and then publicly stated that it did so because it was tired of listening to discrimination complaints made by African-American employees at its home plant. If the general counsel’s allegations are true, Boeing did something legally indistinguishable — unless labor rights no longer count as “real” rights.

The entire piece is well worth the read. Our previous posts are here. 

Boeing NLRB filing

Former General Counsel to the National Labor Relations Board, Fred Feinstein has posted a piece on Politico characterizing the assault on the decision to issue a complaint in the Boeing case as nothing less than an assault on the rule of law. Its a pretty good statement of a pro-labor argument. Feinstein is not without controversy.

Boeing NLRB filing

The NLRB has filed its response to Boeing's motion to dismiss the complaint concerning the opening of a second Dreamliner production line in South Carolina.

Muddle, Meddle, Boing, Boeing

South Carolina's Attorney General has along with 14 other state's AG's filed a horribly muddled amicus brief in the Boeing case. While there are excellent arguments against the NLRB complaint, particularly the remedy sought requiring the work to be relocated, this brief only exposes the AG's utter lack of understanding of the National Labor Relations Act. Too much Chicken Little, too little understanding that the statute was designed to reign in managerial decision making.  More explained in our previous posts.

GE, the same as Boeing?

Over the past few weeks I have been in a vigorous e-mail and phone debate with a fellow management lawyer concerning the meaning and effect of the issuance of a complaint in the Boeing case. Previous posts here. Contrary to many gloomy management predictions, I think Boeing is a fairly garden variety application of long established labor law. My friend believes it is a fundamental assault on employer free speech and employer right to determine facility location.

Now we have General Electric announcing the opening a non-union locomotive factory in Texas. At the same time it is bargaining with union workers at at its existing locomotive factory in Pennsylvania. Assuming GE executives do not articulate an anti-union motivation for their actions, as is alleged that the Boeing executives did, this sets up an ideal scenario for testing the limits of the NLRB's interpretation of a Boeing style violation. Can the announcement of the location of a new facility in a right to work state during contract negotiations ever be viewed as an unfair labor practice? The correct conclusion is obvious, it cannot, without more, be a violation. Management has the right to determine where it locates facilities, as long as the decision is not tainted with anti-union motivation. The difference in Boeing is the NLRB believes the company's actions and statements establish an anti-union motivation for its decision and issued a complaint so that the issue will be tried before an administrative law judge. Boeing may still prevail, but it will have to show the relocation to South Carolina was motivated by lawful factors.

WSJ gets it way wrong

For a short opinion piece, rarely does any mainstream outfit get things so wrong. This from the WSJ. (If you are not a subscriber google search the title and you will find the article). The NLRB has issued a complaint accusing Boeing of committing an unfair labor practice when it moved a production line from Washington to South Carolina, and blamed the union's strike activity for the decision. Previous posts here. The issuance of a complaint means the NLRB believes there is sufficient evidence of a violation to warrant a trial on the issue before an administrative law judge. It is not a ruling, as the subtitle of the WSJ piece suggests. At the trial the employer will have the opportunity to prove its motivation was not based upon the union's protected right to strike, but rather was based on sound economic factors. Its really a pretty pedestrian legal theory applied to seemingly atrocious facts created by Boeing's own statements. This is law school 101. You can always file a complaint, its that pesky proof thats the hard part. 

Essentially critics of the Boeing complaint are saying labor, and the federal agency protecting labor's statutory rights has no business second guessing an employer's decision to relocate a plant. That position, however, is contrary to well established labor law principles. An employer is not free to relocate a plant to avoid unionization, or because a union lawfully exercises a right (like striking). The article also implies an employer can simply move overseas. But such a move is also susceptible to a Boeing like Complaint, if it is motivated by anti-union sentiments. 

The WSJ writer makes an absurd claim that the NLRB complaint is an assault on "the federal right to work law." A few senators, notably both senators from South Carolina, have introduced legislation prohibiting the NLRB or union contracts from pre-empting state right to work laws. There may be a legislative solution to this problem, but its not the proposed legislation discussed in the article. If a state passes a right to work law, there is nothing the NLRB or union can do to change the effect of the state law.  The proposed legislation is totally redundant. Section 14(b) of the NLRA already prevents the NLRB or collective bargaining agreements from interfering with state right to work laws. 

Finally, right to work has nothing to do with the issues addressed in the Boeing Complaint. Right to work laws guarantee an employee does not have to belong to, or pay a union in order to keep a job in a unionized facility. Such laws do not directly impact whether an employer can relocate or not.

Boeing go Boingo

Remember Boeing's move to set up a second 787 Dreamliner fabrication line in non-union South Carolina? Previous posts here. And all Boeing's talk about the unions running them out of Everett, Washington?  This from the NLRB:

NLRB Acting General Counsel Lafe Solomon today issued a complaint against the Boeing Company alleging that it violated federal labor law by deciding to transfer a second production line to a non-union facility in South Carolina for discriminatory reasons.  .  .  . 

To remedy the alleged unfair labor practices, the Acting General Counsel seeks an order that would require Boeing to maintain the second production line in Washington state. 

A trial before an administrative law judge is set for June 14. There are some very astute practitioners who sense this is another "great leap" from a pro-union NLRB, but I'm not so sure. This does not seem so much of a stretch given that Boeing initially announced the production would be in Everett, then switched it to South Carolina blaming the unions propensity to strike. A prima facie violation is made based upon the employer's statements. It is now incumbent on the employer to establish its move was based on legitimate motivation as in Dubuque Packing. Whether the Boeing case is momentous will depend on that proof, and the Board's evaluation of it.