Labor Board Case
Against Boeing Points to Fights to Come
Published: April 22, 2011 - New York Times
For businesses, it was the type of action they have feared from a National
Labor Relations Board dominated by Democrats. For labor unions, it was the
type of action they have hoped for. And for both, it may be a sign of things to
come.
These fears and hopes were stirred this week when the labor boardfs 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 boardfs acting
general counsel, said the companyfs motive constituted illegal retaliation
against workers for exercising their right to strike.
The agencyfs 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
Obamafs 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 boardfs 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 move the work back to
its unionized Puget Sound facilities, after it made a $2 billion investment and
hired 1,000 nonunion workers in South Carolina.
Outraged, the National
Association of Manufacturers warned that if the agency won this case, gno
company will be safe from the N.L.R.B. stepping in to second-guess its business
decisions on where to expand.h
Senator Jim
DeMint, a South Carolina Republican, complained, gThis is nothing more than
a political favor for the unions who are supporting President Obamafs
re-election campaign.h
The Boeing case was not the first time that Mr. Solomon has riled the
business community and its Republican allies. Saying it is the domain of the
federal government, 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 boardfs 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.
gMy goal is to enforce the National Labor Relations Act,h he said. That law,
enacted in 1935, governs private sector workersf 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. gThey 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,h he said. gI canft not issue a complaint in the face of
such evidence.h
While the spotlight is on Mr. Solomon at the moment, people inside the agency
and out expect that attention will soon move to the five-member board, whose
decisions often have broad effect, much like court precedents.
Marshall Babson, a Republican member of the board under President
Reagan, said the board had gteed up a lot of important issues for
consideration.h He said its behavior had been more moderate than the Reagan
board, which, he recalls, reversed about two dozen pro-union decisions in one
year.
The Obama board is expected to reverse a Bush-era decision that lets workers
petition to decertify a union within days of a companyfs recognizing a union
through card check. That new ruling would most likely restore the old
requirement that workers had to wait a year before trying to oust their union.
gThe current majority views its role as promoting unionization in the private
sector,h said Peter Schaumber, a Bush appointee who stepped down from the board
in August.
Lynn Rhinehart, the general counsel for the A.F.L.-C.I.O.,
applauds many of the boardfs recent moves and wishes it would do far more. gA
lot of what theyfve done is pretty routine,h she said. gI think the allegations
of activism are pretty overblown.h
Randel K. Johnson, senior vice president for labor affairs at the United
States Chamber of Commerce, said employers were expecting a series of
unfavorable rulings. gMany decisions are still in the pipeline, and we think
where those are going to wind up is clear,h he said.
The chamber opposes a proposal that would require all private sector
employers to post notices explaining workersf rights to unionize. It also
faulted the board for being more aggressive about reinstating pro-union workers
who are illegally fired during unionization drives.
Samuel Estreicher, a labor law professor at New
York University, said that, so far, the Obama boardfs actions had not been
out of line. gI donft buy into the accusations that theyfre doing something
crazy,h he said.
Nonetheless, he criticized Mr. Solomonfs complaint against Boeing, saying
that companies vulnerable to strikes — like the 56-day walkout against Boeing in
2008 — should be able to move operations while explaining to employees that
strikes hurt profits and production.
Boeing has called the case glegally frivoloush and ga radical departure from
both N.L.R.B. and Supreme
Court precedent.h
Mr. Solomon dismissed accusations that he was following President Obamafs
wishes in bringing the Boeing case, saying he had had no conversations with the
White House about it.
Mr. Solomon said he was just a gcareer personh enforcing the law. gI feel
that I really had no choice,h he said.