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View acting General Counsel Lafe Solomon's May 9 statement.

Publicly available documents related to the Boeing case are available here. The Charge and ComplaintOn March 26, 2010, the International Association of Machinists and Aerospace Workers, District Lodge 751, filed a charge with the NLRB alleging that the Boeing Company had engaged in multiple unfair labor practices related to its decision to place a second production line for the 787 Dreamliner airplane in a non-union facility.Specifically, the union charged that the decision to transfer the line was made to retaliate against union employees for participating in past strikes and to chill future strike activity, which is protected under the National Labor Relations Act.

The union also charged that the company violated the National Labor Relations Act by failing to negotiate over the decision to transfer the production line. The Machinists’ union has represented Boeing Company employees in the Puget Sound area of Washington, where the planes are assembled, since 1936, and in Portland, Oregon, where some airplane parts are made, since 1975.
 
Throughout the investigation of the charge, NLRB officials met with both parties in efforts to facilitate a settlement agreement. The overwhelming majority of NLRB charges found to have merit are settled by agreement. Although no settlement was reached and the Agency was compelled to pursue litigation, the Acting General Counsel remains open to a resolution between the parties.

The complaint issued by the Acting General Counsel (19-CA-32431) alleges that Boeing violated two sections of the National Labor Relations Act by making coercive statements and threats to employees for engaging in statutorily protected activities, and by deciding to place the second line at a non-union facility, and establish a parts supply program nearby, in retaliation for past strike activity and to chill future strike activity by its union employees.

The investigation found that Boeing officials communicated the unlawful motivation in multiple statements to employees and the media. For example, a senior Boeing official said in a videotaped interview with the Seattle Times newspaper: "The overriding factor (in transferring the line) 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."

The complaint also alleges that Boeing’s actions were “inherently destructive of the rights guaranteed employees by Section 7 of the Act."The investigation did not find merit to the union’s charge that Boeing failed to bargain in good faith over its decision regarding the second line. Although a decision to locate unit work would typically be a mandatory subject of bargaining, in this case, the union had waived its right to bargain on the issue in its collective bargaining agreement with Boeing.
 
 
The Law and Supporting Cases
 
The NLRB enforces the National Labor Relations Act, which guarantees employees the right to organize and collectively bargain, or to refrain from doing so. Applicable Sections of the Act follow:
 
RIGHTS OF EMPLOYEESSection 7: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities...RIGHT TO STRIKE

Section 13: Nothing in this Act … shall be construed so as either to interfere with or impede or diminish in any way the right to strike or to affect the limitations or qualifications on that right.

UNFAIR LABOR PRACTICES (relevant sections)

Section 8(a): It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization
 
Cases:
 
On the 8(a)(1) charge:

The U.S. Supreme Court delineated the line between protected employer speech versus unlawful employer speech under the NLRA in NLRB v. Gissel Packing Corp., 395 US 575, 618 (1969).

In General Electric Company, 215 NLRB 520 (1974), the National Labor Relations Board applied the Gissel test to set aside an election because the employer, citing concerns about possible future strikes, stated that the plant's nonunion status was a primary factor in choosing to locate a production line for a new motor there. In its decision, the Board distinguished an employer's right to take defensive action when threatened with an imminent strike from threats to transfer work "merely because of the possibility of a strike at some speculative future date."

Since then, the Board has repeatedly held that an employer violates section 8(a)(1) by threatening that employees will lose their jobs if they join a strike, or by predicting a loss of business and jobs because of unionization or strike disruptions without any factual basis. In contrast, the Board has found that employers may lawfully relate concerns raised by customers (Curwood, Inc., 339 NLRB 1137 (2003). They may also reference the possibility that unionization, including strikes, might harm relationships with consumers, as opposed to predicting  “unavoidable consequences.”Miller Industries Towing Equipment, Inc., 342 NLRB 1074, 1075-76 (2004)

On the 8(a)(3) charge:

An employer’s discouragement of its employees’ participation in a legitimate strike constitutes discouragement of union membership within the meaning of this section. This applies to employer conduct designed to retaliate against employees for having engaged in a strike in the past (Capehorn Industry, 336 NLRB 364 (2001)where the employer failed to reinstate strikers when there was no legitimate business justification for permanently subcontracting the work), as well as employer conduct designed to forestall employees from exercising their right to strike in the future (Century Air Freight, 284 NLRB 730 (1987)where employer permanently subcontracted unit work and discharged employees in order to forestall the exercise of their right to strike; and Westpac Electric, 321 NLRB 1322 (1996), where employer isolated employee in retaliation for previous and anticipated future strike activities). In National Fabricators 295 NLRB 1095 (1989), where potential strikers were targeted for layoffs, the Board held that “disfavoring employees who were likely to strike, is the kind of coercive discrimination that…discourages…protected activity.”
 

Next StepsIt is important to note that the complaint states allegations by the Acting General Counsel that the employer has committed unfair labor practices. The Board has made no findings on these allegations.  The next step in the process will be a hearing before an NLRB administrative law judge, scheduled for June 14 at the NLRB’s Seattle office. At the hearing, both parties will have an opportunity to present evidence and argue in favor of their position. The decision of the judge may be appealed to the Board in Washington by the filing of exceptions by either party. The Board’s decision could further be appealed to a federal court of appeals and then to the U. S. Supreme Court.  Click here for a flow chart of the NLRB process.

 This fact sheet was posted on 4/20/2011 and will be updated periodically.