A Response to Joe Nocera’s Take on Boeing Complaint

August 24, 2011
Guest Post

By Jeffrey M. Hirsch, a professor at the University of North Carolina School of Law. This is a cross-post from Workplace Prof Blog.

Since the initial uproar over the Boeing complaint, I've been sitting back and waiting for the hearing and ALJ recommended decision stage to wrap up. But a recent column by the NY Times' Joe Nocera has prompted me to post something yet again. When a columnist whose most recent notoriety was calling Tea Partiers "terrorists" writes a column that looks like it was written by Boeing, I just can't resist. I won't comment on his positive descriptions of Boeing, which many in the labor field might take issue with, but instead focus on his erroneous description of the case and the NLRB.

Nocera starts by claiming that he is "mildly obsessed" over the issue. I'd suggest that he make the obsession stronger, because it's apparent that he hasn't taken the time to read the complaint, read the NLRB's statements on the complaint, talk to anyone who knows the law, or even spent five minutes on the NLRB website to determine its basic structure and function.

Nocera at least said there was a "complaint" at issue rather than a decision, although he doesn't seem to understand the difference between the NLRB and the NLRB's General Counsel. Indeed, he states that most of the Board's "top executives" were nominated by Obama, without recognizing that the GC is the only political appointee who has looked at this case.

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.

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. 

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. And, as 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.