Former NLRB Member Says Board's Complaint Against Boeing Is Unprecedented
Philip KleinApril 21, 2011
The National Labor Relations Board's Wednesday complaint against Boeing for building a non-union airplane factory is an unprecedented interpretation of the law, according to a former member of the regulatory panel.
Back in October 2009, Boeing announced plans to build the plant after talks broke down with the International Association of Machinists and Aerospace Workers. While Boeing maintained its production line in Washington state, they decided to open a second one in the right-to-work state of South Carolina to service a backlog of orders.
The NLRB is arguing that this makes the move to South Carolina retaliatory, and is advocating the extreme remedy of moving the production line to Washington – even though Boeing has already constructed the new facility and hired 1,000 workers.
“There is no precedent to support this,” said Peter Schaumber, who was first appointed to the NLRB by President Bush in 2002 and served for eight years, until his second term expired last year.
Specifically, one of the cases the complaint relies on is the 1969 U.S. Supreme Court decision NLRB v. Gissel Packing Co. which set parameters for employer free speech. In its complaint, the NLRB said that statements made by Boeing executives in which they talked about past strikes in Washington and the threat of future strikes were out of bounds under the Gissel ruling.
However, the context of Gissel was union elections. The idea was that an employer couldn't make threatening statements about shutting down in the event of unionization that had no economic basis, but merely were meant to coerce workers into voting against a union. In this case, the union already exists and the Washington production line remains open.
“Boeing clearly had a right under its collective bargaining agreement with the union to open the new assembly line elsewhere,” Schaumber explained.
He also said that, “If this this is a violation of the law, then there is something wrong with American labor law. There is something wrong if an employer such as Boeing cannot try to correct a backlog taking into account the likelihood of strikes.”
Here is the relevant section of the Supreme Court's Gissel decision:
Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U. S. 263, 380 U. S. 274, n. 20 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts, but a threat of retaliation based on misrepresentation and coercion, and, as such, without the protection of the First Amendment.