On April 20, 2011, NLRB General Counsel Lafe Solomon issued an unfair labor practice complaint against Boeing. The basis for the complaint was Boeing’s decision to locate an additional 787 Dreamliner assembly plant in South Carolina. The complaint alleges that Boeing made its location decsion after considering the past history of labor unrest and a history of strikes by machinists in the Seattle area. By attempting to avoid the adverse impact of stikes on its business, Boeing had, in effect, retaliated against the employees in the Northwest who had exercised their right to strike. In the view of General Counsel Solomon as expressed in his news release, this violated the employees’ section 7 rights, thus breaching Section 8(a)(1) of the Labor Management Relations Act, and constitutted retaliation and discrimination against those employees in violation of Section 8(a)(3) of the Act.
The complaint was over a year in investigation. Boeing announced the new plant’s location in 2009, and has been moving forward on the project steadily since then. The plant is nearly completed after millions of dollars of investment, and the new workforce is being hired. Boeing has stated its intent to fight the complaint. If it does so, it will likely be years before the Board itself decides the case and another couple of years before the appeals process runs its course. This raises several questions for employers.
First, what is it about the Boeing situation that makes it different from any other decision to put a plant in a particular location? Boeing is different from previous Board cases in that the plant was for additional productive capacity, not to replace any existing employees. If the Board is going to look at every plant expansion and explore whether the employer considered the availability of a stable and reliable workforce–or considered whether the proposed new location is in a right-to-work state–it is likely to find its workload considerably heavier. Thus, this Complaint puts the Board inside corporate offices in a way never seen before.
Second, is the Board capable of policing the nation’s employers effectively without doing harm to the economy? The Board depends upon the filing of charges. If a charge is not filed, it is unlikely that the Board will be in any position to take action. In this situation, with no employees being adversely affected by Boeing’s decision, the filing of the charge was by the union. Effectively, then, only unionized employers will have their plant siting decisions examined by the Board. This gives an additional competitive disadvantage to unionized employers, and an incentive to avoid dealing with American unions. The time required for the Board to do anything about these cases also puts uncertainty into the equation for these employers. Can the Board effectively provide a remedy? No current employees of Boeing would have been harmed in any way, so there is no back pay to be awarded. Closing the new plant would punish the South Carolina employees, and create a huge waste of resources for Boeing. The Board is therefore facing a number of very practical hurdles if it wants to proceed along this path.
Third, what is the Board’s placing of certain states on a “presumed” anti-union list going to do for the Board’s standing in the political system? The clear implication of the General Counsel’s complaint is that South Carolina is an unacceptable location for an employer with an existing union shop in another state to put a new facility, at least if one of the goals of the employer is to protect itself from vulnerability to strikes. Both South Carolina senators have already condemned the General Counsel’s decision to issue the complaint. Many other senators from right-to-work states have joined in. While the NLRB is an independent agency, it is clearly dependant upon Congress for funding and upon the participants in the labor arena to follow the rules. If it makes new rules that cripple union employers and outrage legislators, it will see both increased non-compliance and decreased resources. The Board is unlikely to expand upon Boeing until it decides that case in some future year. Employers, for at least the time being, should not be overly concerned that decisions to expand into employer-friendly locations will be challenged by the Board.
This latest effort by the General Counsel to expand the influence of the Board on corporate decisions as to where to place new facilities inside the United States is likely to have a serious backlash. Employers should not change their current plans. If expansion is contemplated, they should site their new facilities where they otherwise would, without worrying about the implications of the complaint being issued in Boeing.