Nocera Myth: Boeing Did Not Engage In “Direct Payback” Against Striking Workers

Nocera On Allegations Against Boeing: “It Is A Mind-Boggling Stretch To Describe Boeing's Strategy As 'Retaliation.' ” From Nocera's August 22 New York Times column headlined “How Democrats Hurt Jobs”:

[A] fair-minded person would have to acknowledge that the N.L.R.B.'s action is exactly the kind of overreach that should embarrass Democrats who claim to care about job creation. It's paralyzing, is what it is.

The law, to be sure, forbids a company from retaliating against a union. But the word “retaliation” suggests direct payback -- a company shutting down a factory after a strike, for instance. Boeing did nothing like that. It not only hasn't laid off a single worker in Washington State, it has added around 3,000 new ones. Seven out of every 10 Dreamliners will be assembled in Puget Sound.

Before expanding to South Carolina, Boeing asked the union for a moratorium on strikes -- precisely because it needed to get the airplane into the hands of impatient customers. The union said it would agree only if Boeing promised never to manufacture anywhere but Puget Sound. Boeing refused -- as any company would.

It is a mind-boggling stretch to describe Boeing's strategy as “retaliation.” Companies have often moved to right-to-work states to avoid strikes; it is part of the calculus every big manufacturer makes. The South Carolina facility is a hedge against the possibility that Boeing's union work force will shut down production of the Dreamliner. And it's a perfectly legitimate hedge, at least under the rules that the business thought it was operating under. [The New York Times, 8/22/11]

Reality: Boeing Execs Allegedly Said They Were Taking Work Away From Plant “Because Employees Had Struck”

International Association Of Machinists And Aerospace Workers Have Represented Boeing Employees Since 1975. From paragraph 5 of the complaint against Boeing by the National Labor Relations Board's (NLRB) general counsel's office:

Since at least 1975 and at all material times, the IAM [International Association of Machinists and Aerospace Workers] has been the designated exclusive collective bargaining representative of the Puget Sound Unit and the Portland Unit (collectively, the “Unit”) and recognized as such representative by Respondent. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective from November 2, 2008, to September 8, 2012. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

Boeing Workers Represented By IAM Have Gone On Strike Five Times In 36 Years. From paragraph 5 of the complaint:

Since 1975, during the course of the parties' collective-bargaining relationship, the IAM engaged in strikes in 1977, 1989, 1995, 2005, and 2008. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

Boeing Allegedly Said It Would Take Work Away From Unionized Plant Because Of Strikes And Threatened To Take Away More Work “In The Event Of Future Strikes.” From paragraph 6 of the complaint:

On or about the dates and by the manner noted below, Respondent made coercive statements to its employees that it would remove or had removed work from the Unit because employees had struck and Respondent threatened or impliedly threatened that the Unit would lose additional work in the event of future strikes. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

Boeing CEO Allegedly Said He Was Moving “787 Dreamliner Work To South Carolina Due To 'Strikes Happening Every Three To Four Years' ” In Washington State. From paragraph 6 of the complaint:

[Boeing president, chairman, and CEO, Jim McNerney] made an extended statement regarding “diversifying [Respondent's] labor pool and labor relationship,” and moving the 787 Dreamliner work to South Carolina due to “strikes happening every three to four years in Puget Sound.” [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

Complaint Alleges Boeing Executive Vice President Said Boeing Relocated Dreamliner Production To South Carolina “Because Of Past Unit Strikes, And Threatened The Loss Of Future Unit Work Opportunities Because Of Such Strikes.” From paragraph 6 of the complaint:

[Boeing executive vice president Jim Albaugh] stated that Respondent decided to locate its 787 Dreamliner second line in South Carolina because of past Unit strikes, and threatened the loss of future Unit work opportunities because of such strikes. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

Complaint Alleges Boeing Decided To Transfer A Production Line To Another Plant Because Workers “Engag[ed] In ... Lawful Strikes. From paragraph 7 of the complaint:

(a) In or about October 2009, on a date better known to Respondent, but no later than October 28, 2009, Respondent decided to transfer its second 787 Dreamliner production line of 3 planes per month from the Unit to its non-union site in North Charleston, South Carolina.

(b) Respondent engaged in the conduct described above in paragraph 7(a) because the Unit employees assisted and/or supported the Union by, inter alia, engaging in the protected, concerted activity of lawful strikes and to discourage these and/or other employees from engaging in these or other union and/or protected, concerted activities. [The Boeing Company NLRB general counsel office complaint, 4/20/11]

Complaint Alleges That Boeing's Actions Are “Inherently Destructive Of” Workers' Guaranteed Rights. From paragraph 7 of the complaint:

(c) Respondent's conduct described above in paragraph 7(a), combined with the conduct described above in Paragraph 6, is also inherently destructive of the rights guaranteed employees by § 7 of the Act. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

Labor Law Professor Hirsch: “If Boeing Really Based Its Decision On Past Strike Activity, Retaliation Is Exactly What Happened.” In a blog post responding to Nocera, University of Tennessee College of Law associate professor Jeffrey Hirsch wrote:

Now, it's often very difficult to prove discriminatory intent. That's why 8(a)(3) cases often involve stupid comments by managers, such as the Boeing official here who tied the location decision to the union's past strikes (anyone know if that guy is still employed, because if he hadn't opened his mouth, there probably wouldn't have been a Boeing complaint). One can interpret that statement in the overall context different ways, and I think there are still unanswered questions about exactly what was going on. But that's why the NLRB holds hearings. So here's a novel idea: why don't we wait and see what evidence and testimony comes out of the hearing before making statements like "[i]t is a mind-boggling stretch to describe Boeing's strategy as retaliation.'" If Boeing really based its decision on past strike activity, retaliation is exactly what happened. [Workplace Prof Blog, 8/23/11]

Nocera Myth: The Case Against Boeing Is “Jarring” Because It Shows That “The Rules Have Changed”

Nocera: “That Is What Is So Jarring About This Case -- And Not Just For Boeing. Without Any Warning, The Rules Have Changed.” From Nocera's column:

That is what is so jarring about this case -- and not just for Boeing. Without any warning, the rules have changed. Uncertainty has replaced certainty. Other companies have to start wondering what other rules could soon change. It becomes a reason to hold back on hiring. [The New York Times, 8/22/11]

Reality: Legal Experts Say Allegations Against Boeing Represent A “Classic” Case Of Labor Law Violations

NLRB Acting General Counsel: “There Is Nothing Remarkable Or Unprecedented” About The Boeing Complaint. From a May 9 statement by NLRB acting general counsel Lafe Solomon:

Contrary to certain public statements made in recent weeks, there is nothing remarkable or unprecedented about the complaint issued against the Boeing Company on April 20. The complaint involves matters of fact and law that are not unique to this case, and it was issued only after a thorough investigation in the field, a further careful review by our attorneys in Washington, and an invitation by me to the parties to present their case and discuss the possibility of a settlement. Only then did I authorize the complaint alleging that certain statements and decisions by Boeing officials were discriminatory under our statute. [NLRB.gov, 5/9/11]

Labor Law Professor Hirsch: If Allegations Are True, Boeing's Actions Have Been “Clearly Prohibited For Decades.” From Hirsch's blog post responding to Nocera:

[A]s Boeing well knows, this sort of retaliation has been clearly prohibited for decades, as it should be (for readers not well versed in labor law, think about what would happen in the future if employers were free to exert economic harm on workers who have shown a willingness to exercise their right to strike or other activities protected by law).

What we have in the Boeing case is not a novel interpretation of the law. It's an argument about the facts, specifically the motivation of the employer. Motivation is a very tricky thing to figure out and there will no doubt be different interpretations of the evidence on this question. But the histrionics over the mere filing of a complaint (not to mention congressional attempts to influence the outcome of the subsequent decision) -- before the hearing evidence has been released or any factual findings have been made -- is completely unjustified here. [Workplace Prof Blog, 8/23/11]

Labor Law Professor Brudney: If True, The Allegations Against Boeing “Would Be A Classic Violation” Of Federal Labor Laws. In a telephone interview with Media Matters, James J. Brudney, the Newton D. Baker-Baker & Hostetler Chair in Law at Ohio State University's Moritz College of Law, said: “Relocating work away from a plant because of too much lawful union activity would be a classic violation of a section of the federal National Labor Relations law. [Phone interview with Media Matters, 5/11/11]

To read more about what labor law experts have said about the Boeing case, click here.

Nocera Myth: Government Is Trying To “Dictate Where A Company Makes Its Products”

Nocera: “Seriously, When Has A Government Agency Ever Tried To Dictate Where A Company Makes Its Products?” From Nocera's column:

In April, the National Labor Relations Board filed a complaint against Boeing, accusing it of opening the South Carolina plant to retaliate against the union, which has a history of striking at contract time. The N.L.R.B.'s proposed solution, believe it or not, is to move all the Dreamliner production back to Puget Sound, leaving those 5,000 workers in South Carolina twiddling their thumbs.

Seriously, when has a government agency ever tried to dictate where a company makes its products? I can't ever remember it happening. Neither can Boeing, which is fighting the complaint. J. Michael Luttig, Boeing's general counsel, has described the action as “unprecedented.” He has also said that it was a disservice to a country that is “in desperate need of economic growth and the concomitant job creation.” He's right. [The New York Times, 8/22/11]

Reality: NLRB Complaint Against Boeing Says Companies Are Free To Locate Their Plants Where They Want

NLRB Complaint Specifically Says Boeing Is Free To Make “Non-Discriminatory Decisions” About “Where Work Will Be Performed.” Contrary to Nocera's claim that the NLRB complaint is an attempt to “dictate where a company makes it products,” the complaint states that it “does not seek to prohibit [Boeing]” from having work performed in South Carolina or anywhere else as long as Boeing does not violate labor laws in making such decisions. From paragraph 13 of the complaint:

(a) As part of the remedy for the unfair labor practices alleged above in paragraphs 7 and 8, the Acting General Counsel seeks an Order requiring Respondent to have the Unit operate its second line of 787 Dreamliner aircraft assembly production in the State of Washington, utilizing supply lines maintained by the Unit in the Seattle, Washington, and Portland, Oregon, area facilities.

(b) Other than as set forth in paragraph 13(a) above, the relief requested by the Acting General Counsel does not seek to prohibit Respondent from making non-discriminatory decisions with respect to where work will be performed, including non-discriminatory decisions with respect to work at its North Charleston, South Carolina, facility. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

NLRB Fact Check: “The Complaint Explicitly States That Boeing May Place Work Where It Likes.” In response to a number of news outlets “erroneously report[ing]” the Boeing case, the NLRB issued the following fact check stating that “Boeing may place work where it likes” “as long as the decision is not made for discriminatory reasons.” From the NLRB fact check:

Several news outlets have erroneously reported in recent days that the National Labor Relations Board has ordered the Boeing Company to close its operations in South Carolina. [...] In fact, the complaint issued on April 20 by the Acting General Counsel does not seek to have the South Carolina facility closed. It seeks to halt the transfer of a specific piece of production work due to allegations that the transfer was unlawfully motivated. The complaint explicitly states that Boeing may place work where it likes, including at its South Carolina facility, as long as the decision is not made for discriminatory reasons.

In addition, the Board has not yet considered or ruled on the allegations in the complaint. Under the NLRB's statute, the General Counsel and the Board are separate and independent, with the General Counsel functioning as prosecutor and the Board functioning as a court. The case is scheduled to be tried before an administrative law judge, acting under the Board's authority. That decision could then be appealed to the Board itself for its decision. [NLRB.gov, accessed 7/28/11]

Law Professor Hirsch: Even If It Loses The Case, “If Boeing Wants To Keep Future Work In SC, It Can.” From Hirsch's post responding to Nocera:

Nocera also messes up the GC's proposed order. The GC did not say that all the South Carolina jobs have to be moved back to Washington. As the NLRB's press release clearly stated: “To remedy the alleged unfair labor practices, the Acting General Counsel seeks an order that would require Boeing to maintain the second production line in Washington state. The complaint does not seek closure of the South Carolina facility, nor does it prohibit Boeing from assembling planes there.” That may seem like splitting hairs given the economics involved, but Nocera and others are wrong to say that the NLRB is trying to take jobs away from a certain area. If Boeing wants to keep future work in SC, it can. Besides, the reality is that if Boeing were to lose, the likely result would be to pay the Washington workers backpay (and maybe some frontpay) in lieu of moving the work. [Workplace Prof Blog, 8/23/11]

Law Professor Hirsch: Boeing Complaint Is Not “Asserting Some New, Broad Power To Dictate Work Locations.” From Hirsch's post:

This touches on a more general misconception that the NLRB is asserting some new, broad power to dictate work locations. As anyone in this field knows, employers have a wide latitude to place work wherever they want, especially if it's new production or the shutting down of current work (anyone remember Wal-Mart stopping in-house butchering, “coincidentally” after the butchers voted for a union? There were no NLRA violations resulting from that.). One exception, however, is Section 8(a)(3), which essentially says that even normally lawful actions will be unlawful if made for the purpose of encouraging or discouraging union activity. That is exactly what the GC is arguing that he has evidence of here. [Workplace Prof Blog, 8/23/11]

Nocera Myth: Democrats Are Behind The Case Against Boeing

Nocera: “The N.L.R.B.'s Action Is Exactly The Kind Of Overreach That Should Embarrass Democrats Who Claim To Care About Job Creation.” From Nocera's column:

That's also why I've become mildly obsessed with the Boeing affair. Nothing matters more right now than job creation. Last week, President Obama barnstormed the Midwest, promising a jobs package in September and blaming Republicans for blocking job-creation efforts. Republicans, of course, have blamed the administration, complaining that regulatory overkill is keeping companies from creating jobs.

They're both right. Republicans won't pass anything that might stimulate job growth because they are so ideologically opposed to federal spending. But the Democrats have blind spots, too. No, the Environmental Protection Agency shouldn't be rolling back its rules, as the Republican presidential candidates seem to want. But a fair-minded person would have to acknowledge that the N.L.R.B.'s action is exactly the kind of overreach that should embarrass Democrats who claim to care about job creation. It's paralyzing, is what it is.

[...]

When he was asked about the Boeing case earlier this summer, President Obama said that the N.L.R.B. is an independent agency and that his hands were tied. That may be true, though it's worth pointing out that most of its top executives are his appointees. But when he gets back from vacation, he might do well looking at his own administration, instead of simply blaming the lack of jobs on the Republicans. [The New York Times, 8/22/11]

Reality: Boeing Case Was Brought By NLRB Official Who Worked For Republicans

Complaint Against Boeing Was Brought On Behalf Of The NLRB Acting General Counsel, Who Is “Independent From The [NLRB].” The complaint against Boeing was brought by a National Labor Relations Board regional director on behalf of “the Acting General Counsel of the National Labor Relations Board.” As stated on the NLRB's website, “The General Counsel, appointed by the President to a 4-year term, is independent from the Board.” [The Boeing Company NLRB general counsel's office complaint, 4/20/11; NLRB.gov, accessed 8/24/11]

Federal Law Gives Independent General Counsel “Final Authority” Over “Investigation Of Charges And Issuance Of Complaints.” From the National Labor Relations Act:

There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than administrative law judges and legal assistants to Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board [29 U.S.C. § 143, accessed 000-.html">8/24/11, via law.cornell.edu]

NLRB's Acting General Counsel Solomon Is A Career Civil Servant Who Has Worked For Republican Members Of The NLRB. Before being named acting NLRB general counsel by President Obama in 2010, Lafe Solomon spent nearly 30 years as a National Labor Relations Board member, working in both the general counsel's office and as a staff member for various board members. Half of the board members for whom Solomon worked are identified by the NLRB's website as Republicans, including James M. Stephens, who Ronald Reagan appointed NLRB chairman in 1987. [NLRB.gov, accessed 8/24/11; NLRB.gov, accessed 8/24/11]