NLRB’s Case Against Boeing Is Over

By Edwin S. Hopson

On December 9, 2011, NLRB Acting General Counsel Lafe Solomon in a press release announced that the withdrawal of a charge by the Machinists union against the Boeing Co. over Boeing’s planned opening of a plant in South Carolina to build its large new commercial airliner, has been approved bringing the matter to an end.  The Machinist Union had requested withdrawal of its unfair labor practice charge.  This came after Boeing and the union agreed upon a new four-year collective bargaining agreement earlier this week. Based on the union’s request, the NLRB administrative law judge presiding over the case dismissed the complaint and remanded the case to the NLRB’s Seattle regional office.  NLRB Regional Director Richard Ahearn then approved the union’s written request to withdraw the charge on December 9, 2011, and the case is now closed.

House Republicans Seek to Cut NLRB’s Budget

By Edwin S. Hopson

On November 1, 2011, Politico.com in an article by Seung Min Kim reported that a draft budget prepared by House Republicans “zeroes in on the National Labor Relations Board, which would see its funding cut by 17 percent, as well as several restrictions related to union elections and organizing activities.” The article noted that the “NLRB has been a prominent Republican foe, particularly due to its decision to block Boeing from moving a plant from Washington state to South Carolina.”  Democrats are criticizing the tactic and vowing to block such actions, according to Politico.com.  To read more, go to www.politico.com.

U.S. Chamber of Commerce Files Suit to Block the NLRB’s New Notice Posting Rule

By Edwin S. Hopson

According to a press release issued by the U.S. Chamber of Commerce, it and the South Carolina Chamber of Commerce, on September 20, 2011, filed a lawsuit against the National Labor Relations Board (NLRB) challenging the NLRB’s new rule requiring businesses to post notices explaining employees’ rights to unionize. The case is styled Chamber of Commerce, et al. v. National Labor Relations Board, et al. and was filed in the U.S. District Court of South Carolina.

The press release quoted Robin Conrad, Executive Vice President of the National Chamber Litigation Center, as saying, “[t]he NLRB has no authority to impose any of these requirements. This is nothing more than labor regulation run amok. Adding insult to injury, the Board’s new rule violates the First Amendment by forcing employers to use their own resources to post the NLRB’s pro-union message on the company’s own property.”

The lawsuit claims that the NLRB’s final rule regarding Notification of Employee Rights Under the National Labor Relations Act violates the National Labor Relations Act, the Administrative Procedure Act, the Regulatory Flexibility Act, and the First Amendment of the Constitution. The NLRB’s new rule — which applies to most private employers in the U. S.– would become effective on November 14, 2011.

This action follows a similar one filed by the National Association of Manufacturers on September 8, 2011, in the U.S. District Court for the District of Columbia.

House of Representatives Passes Bill to Prevent NLRB From Ordering Relocation of Work

By Edwin S. Hopson

On July 19, 2011, in response to the NLRB’s issuance of complaint against Boeing arising out of Boeing’s decision to build a number of its new 787 Dreamliners in a non-union plant in South Carolina, a bill entitled The Protecting Jobs From Government Interference Act, H.R.2587, was introduced in the U.S. House of Representatives by Representative Tim Scott (R-SC).  In part, it would amend the National Labor Relations Act so as to prohibit the NLRB from ordering any employer to relocate, shutdown or transfer employment under any circumstances, and would apply to all cases not yet fully adjudicated before the Board.

H.R. 2587 on September 15, 2011, passed the House of Representatives with a vote of 238 to 186.  Those voting in favor included some 7 Democratic members of the House.  Eight Republicans voted against the bill. Passage of this measure in the Democratically controlled Senate is doubtful at this time.

Former NLRB Chairman Liebman Speaks Out

By Edwin S. Hopson

In an interview published on August 29, 2011, in the New York Times, former NLRB Chairman Wilma Liebman responded to critics of the Board during her recent tenure.  “The criticism is grossly out of proportion to what has happened and what has been done. We knew we were going to have a boxing match, but we didn’t expect our opponents to come in with a baseball bat,” she said in the Times Reporter Steven Greenhouse’s interview. 

Liebman’s term expired at midnight on August 27, 2011, leaving three members remaining on the five-member Board.

According to the New York Times’ article, “[c]onservative newsletters describe the presidentially appointed board as ‘Marxism on the march’ and its members as ‘socialist goons.’ Business groups denounce it as a handmaiden of union bosses, while Representative Michele Bachmann, a Republican presidential candidate, says she will shut down the agency if elected.”  Greenhouse also reported that South Caroline Senator Lindsey Graham vowed that he would block any future Democratic nominees to the NLRB because of the pending NLRB case involving Boeing’s opening a plant inSouth Carolina.

In the interview, Liebman also was quoted as saying, “[t]he perception of this agency as doing radical things is mystifying to me. The rhetoric is so overheated.” Liebman, who is 61, also stated that “she asked not to be reappointed [to the NLRB] and was ready to move on.”

Greenhouse also interviewed former NLRB Member Peter Schaumber, who was appointed byPresidentGeorgeW.Bush.  Schaumber stated, “[t]here has always been a certain arc in the board’s decisions when control changes between parties. Certain cases would go back and forth, but what we’re seeing now goes well beyond that arc.”

House Committee Issues Subpoena To NLRB For Documents In Boeing Case

By Edwin S. Hopson

According to an article in the August 8, 2011 Wall Street Journal, the U.S. House Oversight Committee issued a subpoena on Sunday, August 7, 2011, to the National Labor Relations Board’s Acting General Counsel requiring that he turn over by noon on August 12, 2011, certain materials, including its emails, call logs and other communications from the start of 2009 relating to or referring to Boeing or the union that spurred the complaint the NLRB issued on April 20, 2011, against Boeing over it’s decision in 2009 to start a plant in South Carolina to build some of its new Dreamliner 787 planes.  The Machinist union had filed charges in 2009 over the decision to build some of the new planes at a new, non-union facility in South Caroline rather than in the State ofWashington where Dreamliners are also being built, claiming that the decision was based on anti-union animus.

 The Acting General Counsel of the NLRB,LafeSolomon, in a press release issued today, responded publicly to the subpoena, stating, “[t]o the best of my knowledge, this is the first time since 1940 that the National Labor Relations Board has been the subject of a Congressional subpoena. I am disappointed and surprised by this development. For months, my staff and I have diligently tried to satisfy the Committee’s desire for information while also preserving the integrity of our process and the rights of the parties in a case being actively litigated. I continue to believe that a solution is possible, and will work with the committee in the days and weeks ahead to find a reasonable and responsible balance.”

 According toSolomon, the Board has previously turned over more than 1000 pages of documents concerning its legal theories of the Boeing case, the motions made by all parties, court transcripts, and various rulings.  The Acting General Counsel also advised that the NLRB had had no communications with the White House regarding the merits of the Boeing case.  He also claimed in the NLRB’s press release that many more documents will be made available as the hearing on the NLRB complaint takes place, warning that “premature disclosure could interfered with the fairness of the trial and any possible settlement negotiations. In addition, we believe that the premature disclosure of any documents from the investigative file of an open case would establish precedent that could endanger future cases.”

Senate Ups the Ante In “Poker Game” with NLRB Over Boeing Complaint

By George J. Miller

In further response to the decision of the Acting General Counsel of the National Labor Relations Board to issue a complaint against the Boeing Company over its decision to assemble a certain number of 787 aircraft at a non-union facility in South Carolina and not to assemble them at unionized facility in Washington because of the strike history of the union-represented machinists at that facility (see May 4th blog post below by Ed Hopson), on May 12, 2011, South Carolina Republican Senators Lindsay Graham and Jim DeMint introduced Senate Bill 964, called the “Jobs Protection Act.”  The bill is co-sponsored by 31 other Republican Senators.

As of today, the printed text of the bill has not been received by the Senate.  What is known about it is from a press release issued bySenatorLamarAlexander(R-TN), a co-sponsor, who said in part:

“Specifically, the Job Protection Act would, first, explicitly clarify that the NLRB cannot order an employer to relocate jobs from one location to another; two, guarantee an employer the right to decide where to do business within the United States; and, three, protect an employer’s free speech regarding the costs associated with having a unionized workforce without fear of such communication being used as evidence in an anti-union discrimination suit.”

Senator Graham also issued a statement, stating that the legislation is necessary because, “the NLRB is doing the bidding of the unions at a great cost toSouth Carolinaand our nation’s economy. The foundation of the NLRB complaint against Boeing would destroy the American business community’s ability to negotiate and make rational business decisions.”

Senator DeMint added that, “right-to-work states are winning the future forAmerica’s economy, yet this administration seems intent on stamping out this model of success. This is a reprehensible act and an obvious kickback to union bosses the President is depending on helping his reelection.”