In Labor Board Dispute With Boeing, Growing Controversy Clouds Facts

Just months after fights to limits labor rights in Wisconsin and other states grabbed national attention, another messy labor dispute is getting headlines.  

One of the nation’s largest manufacturers, Boeing, has been sued by the government for allegedly punishing union workers by shifting a proposed new plant to another state. Republicans and other critics have charged that the government is overstepping its authority and creating a dangerous precedent.

The dispute has taken over congressional hearings, prompted more than a dozen states to chime in on Boeing’s side, and has even become a talking point for Republican presidential candidates. Tim Pawlenty compared the case to “the Soviet Union circa 1970s or 1960s or ‘50s.”
Amid all the rhetoric, we’ve decided to step back and lay out the facts.

What the controversy’s about

The National Labor Relations Board has alleged that Boeing scrapped its plans for a new plant in
Washington state to punish union workers there for going on strike. The company opened up a nonunion plant in South Carolina last Friday. If the claims are true, Boeing broke federal labor law.
The complaint was originally brought by the machinists union in 2010. The NLRB investigated and ultimately decided that the allegations were well-founded, and it sued. Cases like this often settle before going to a judge. That hasn’t happened here. And this week, Boeing and the NLRB faced off in court for the first time.

The administrative hearing this week is a hearing on the facts. If the decision is appealed, it will go to the NLRB’s board, which serves as a quasi-judicial body and acts independently of the agency’s general counsel. (As the agency explains it, the general counsel functions as a prosecutor, and the board functions as a court.)

Though the issue hasn’t yet come before the board, Republican critics have worried that it will rule in favor of the union because it has a Democratic majority at the moment.

Why the law’s simple, but the facts in the case aren’t

Federal labor law—specifically, the National Labor Relations Act—protects workers from retaliation or threats of retaliation for exercising the right to form a union, bargain collectively, or go on strike.

“There’s nothing particularly extraordinary about this case as a matter of the legal principles at stake,” said Catherine Fisk, a University of California-Irvine law professor and former Justice Department attorney. Fisk has written extensively about labor law and the NLRB.

According to Fisk, the question is whether the labor board can prove that the dispute with the workers in Seattle was Boeing’s primary reason for moving its planned plant. Companies may legally shift work for reasons such as labor costs, but they may not do so out of retaliation against workers for past strikes or to prevent future strikes.

But at least two former NLRB chairmen have said that the case is unprecedented and have taken issue with the agency’s conclusion about Boeing’s motive.

Why establishing motive is tricky

In an interview last year with the Seattle Times, Boeing executive Jim Albaugh said the following about the decision to relocate: “The overriding factor was not the business climate, and it was not the wages we’re paying people today. It was that we can’t afford to have a work stoppage every three years.”

NLRB’s general counsel took that statement—and others—to mean that Boeing was trying to avoid the union, which had a history of strikes dating back to the 1970s.

However, the company has argued that Albaugh’s quote was taken out of context and have noted that his full statement went on to say more: “We can’t afford to continue the rate of escalation of wages as we have in the past. You know, those are the overriding factors. And my bias was to stay here but we could not get those two issues done despite the best efforts of the Union and the best efforts of the company.”

The Seattle Times had this take on Albaugh’s statements about the work in Seattle:

He repeatedly made clear that those two things—first, no strikes; second, lowered escalation of wages in the future—remain deal breakers for placing future work here.

Here’s the NLRB’s complaint against Boeing, filed in April [PDF]. Boeing has argued that it did not make the decision to open the plant in South Carolina out of retaliation against unionized employees. The company has also argued that the workers in Seattle weren’t adversely affected by the opening of the South Carolina factory because no jobs in Seattle were lost.

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Source: ProPublica