Labor Board Case Against Boeing Points to Fights to Come

These fears and hopes were stirred this week when the labor board’s top lawyer filed a case against Boeing, seeking to force it to move airplane production from a nonunion plant in South Carolina to a unionized one in Washington State. Boeing executives had publicly said they were making the move to avoid the kind of strikes the airplane maker had repeatedly faced in Washington; Lafe Solomon, the labor board’s acting general counsel, said the company’s motive constituted illegal retaliation against workers for exercising their right to strike.

The agency’s unusually bold action angered business groups and some politicians, who said it was an unwarranted attempt by the government to interfere with a fundamental corporate decision.

But under President Obama’s appointees, the agency, including Mr. Solomon and his staff, has sought to reinterpret and more vigorously enforce the rules governing employers and employees, from what workers can say about their bosses on Twitter to the use of Internet and phone voting in union elections.

How much ultimately changes will depend in large part on the decisions made by the five-member board, led by Wilma Liebman, that sits atop the agency. That panel hears cases brought by the board’s regional offices — overseen by Mr. Solomon — after employers, workers or unions file complaints.

Democratic-dominated boards often tilt toward unions and reverse the decisions of Republican-leaning boards, which usually tilt toward management, and vice versa. The current board — made up of three Democrats and one Republican, with one vacancy — is expected to reverse a Bush-era decision that stripped graduate teaching assistants at private universities of their right to bargain collectively. Labor experts also predict that the board will adopt a policy that makes it easier to organize nursing home workers by allowing unions to go after smaller units of workers inside those homes.

The biggest surprise has been the activist stance taken by Mr. Solomon, a career civil servant at the board for 39 years. He became acting general counsel in June 2010, and President Obama nominated him to be the permanent general counsel last January. The Senate has not yet confirmed him to the post.

In the Boeing case, Mr. Solomon charged that the company had illegally moved some production work of the 787 Dreamliner passenger plane to South Carolina to punish workers for past strikes and to avoid future ones. The remedy proposed by Mr. Solomon has been denounced as extreme by many business leaders: that Boeing essentially abandon a $2 billion investment and 1,000 nonunion workers it hired in South Carolina and move the work back to its unionized Puget Sound facilities.

Outraged, the National Association of Manufacturers warned that if the agency won this case, “no company will be safe from the N.L.R.B. stepping in to second-guess its business decisions on where to expand.”

Senator Jim DeMint, a South Carolina Republican, complained, “This is nothing more than a political favor for the unions who are supporting President Obama’s re-election campaign.”

The Boeing case was not the first time that Mr. Solomon has riled the business community and its Republican allies. Saying it is federal domain, he recently threatened to sue four Republican-heavy states — Arizona, South Carolina, South Dakota and Utah — in an effort to invalidate recent constitutional amendments that prohibit private sector workers from choosing a union by signing cards, a process known as card check.

He has also sought to extend the labor board’s reach into the world of the Internet. He approved requests from regional labor board officials to bring complaints against businesses that punished employees for Facebook and Twitter posts, including one case against Reuters. Mr. Solomon has also proposed that electronic voting be used when workers decide whether they want to unionize their workplace — a proposal that business groups maintain will make it easier for unions to coerce workers.

In an interview, Mr. Solomon, a 61-year-old Arkansas native, insisted that he was no radical.

“My goal is to enforce the National Labor Relations Act,” he said. That law, enacted in 1935, governs private sector workers’ right to unionize as well as relations between tens of thousands of companies and employees.

Mr. Solomon, who has worked for board members of both parties, said this case was straightforward: Boeing had retaliated against workers for exercising their federally protected right to strike. “They had a consistent message that they were doing this to punish their employees for having struck and having the power to strike in the future,” he said. “I can’t not issue a complaint in the face of such evidence.”

 

Labor Board Tells Boeing New Factory Breaks Law

In its complaint, the labor board said that Boeing’s decision to transfer a second production line for its new 787 Dreamliner passenger plane to South Carolina was motivated by an unlawful desire to retaliate against union workers for their past strikes in Washington and to discourage future strikes. The agency’s acting general counsel, Lafe Solomon, said it was illegal for companies to take actions in retaliation against workers for exercising the right to strike.

Although manufacturers have long moved plants to nonunion states, the board noted that Boeing officials had, in internal documents and news interviews, specifically cited the strikes and potential future strikes as a reason for their 2009 decision to expand in South Carolina.

Boeing said it would “vigorously contest” the labor board’s complaint. “This claim is legally frivolous and represents a radical departure from both N.L.R.B. and Supreme Court precedent,” said J. Michael Luttig, a Boeing executive vice president and its general counsel. “Boeing has every right under both federal law and its collective bargaining agreement to build additional U.S. production capacity outside of the Puget Sound region.”

It is highly unusual for the federal government to seek to reverse a corporate decision as important as the location of plant.

But ever since a Democratic majority took control of the five-member board after Mr. Obama’s election, the board has signaled that it would seek to adopt a more liberal, pro-union tilt after years of pro-employer decisions under President Bush.

Although the board has not yet issued many major decisions reversing Bush-era policies, it has begun requiring private sector employers to post a notice about workers’ right to unionize, and Mr. Solomon has begun moving more aggressively to win reinstatement of union supporters fired illegally by management during unionization drives.

In a statement Wednesday, Mr. Solomon said: “A worker’s right to strike is a fundamental right guaranteed by the National Labor Relations Act. We also recognize the rights of employers to make business decisions based on their economic interests, but they must do so within the law.”

South Carolina’s two senators, both Republicans, Lindsey Graham and Jim DeMint, denounced the board’s move. “This is nothing more than a political favor for the unions who are supporting President Obama’s re-election campaign,” Mr. DeMint said.

The labor board said that in 2007, Boeing announced plans to create a second production line that would make three 787 Dreamliner planes a month in the Puget Sound area to address a growing backlog of orders. That was to be in addition to a line already making seven Dreamliners a month there. In October 2009, Boeing said it would locate its second line at a new, nonunion plant in South Carolina.

The N.L.R.B. asserted that on numerous occasions Boeing officials had communicated an unlawful motive for transferring the production line, including an interview with The Seattle Times in which a Boeing executive said, “The overriding factor 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.”

Mr. Solomon brought the complaint after a union representing many of Boeing’s Washington workers, the International Association of Machinists and Aerospace Workers, complained that Boeing had decided to move production to South Carolina largely in retaliation for a 58-day strike in 2008.

“Boeing’s decision to build a 787 assembly line in South Carolina sent a message that Boeing workers would suffer financial harm for exercising their collective bargaining rights,” said the union’s vice president, Rich Michalski.

Mr. Solomon said that if he failed to settle the dispute, an administrative judge would begin hearing the case on June 14 in Seattle. Mr. Solomon said he was not seeking to close the South Carolina factory or prohibit Boeing from assembling planes there.

Boeing criticized the timing of the N.L.R.B.’s complaint, saying it came when construction of the factory in North Charleston, S.C., was nearly complete and after 1,000 employees had already been hired there.

Boeing said on Wednesday that none of the production jobs in South Carolina had come at the expense of jobs in Washington. It noted that its unionized employment in the Puget Sound area had increased by 2,000 since it announced its decision to expand in South Carolina.

The company also said it had decided to expand in South Carolina in part to protect business continuity and to reduce the damage to its finances and reputation from future work stoppages.