By Ann C. Hodges, Professor of Law, University of Richmond School of Law
Critics of the National Labor Relations Board’s (NLRB) complaint against Boeing Corporation have claimed that the complaint is unprecedented, motivated by political rather than legal considerations. Members of Congress have written articles, held hearings, and threatened elimination of the agency. While the facts remain to be fully developed in a hearing which began on June 14, the essence of the complaint is that Boeing decided to produce some of its Dreamliner jets in South Carolin
a because of the union’s prior strikes at its plant in Washington.
The case raises an interesting legal issue, but it is certainly not so novel as to suggest a purely political decision. The National Labor Relations Act (NLRA) expressly protects the employees’ right to strike and to join together in a union to improve their wages and working conditions. Interference with those rights using threats, coercion or discrimination is prohibited. The NLRB is tasked with enforcing the law where investigation reveals that a violation may have occurred. Public statements from company officials indicated that the decision to locate production in South Carolina and seek outside suppliers for some parts was based on previous strikes by the unionized employees in Washington. According to the NLRB’s complaint, these statements also suggested that the unionized employees stood to lose future work because of their frequent strikes.
The NLRB regularly issues complaints against employers who threaten employees with loss of work or discriminate against employees because of their union activity, usually without such public evidence of motive. In numerous prior cases this discrimination has taken the form of discharge, discipline, contracting out the employees’ work, eliminating a department, relocating operations, or even closing a plant. So long as the motive is to discourage protected union activity, the conduct is unlawful. And that is the allegation here.
Where employers have legitimate business reasons for discriminating against strikers or employees who have engaged in protected union activity, the NLRB may find the action lawful despite its adverse impact on the employees and the potential for chilling their future exercise of legal rights. The interesting legal question here is whether the Board or the courts will find Boeing’s desire for a dual source to avoid the impact of the strike to be a lawful and legitimate business reason, where it has expressly tied the decision to its employees protected activity.
the limited exceptions that the Court has recognized to the First Amendment -- Justice Scalia noted obscenity, incitement, and fighting words -- cannot be transmuted into other areas.