Wyatt Employment Law Report

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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.”

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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.”