President Obama's National Labor Relations Board (NLRB) again demonstrated its aggressive, pro-union tendencies when the Board's General Counsel recently filed a Complaint seeking to force Boeing to move work from its recently built non-union South Carolina facility to Boeing's union-represented employees in Washington State. In a letter dated May 4, 2011, Boeing asked the NLRB to withdraw its Complaint based on "misstatements" and misquotes attributed to company executives contained in the NLRB's Complaint. On the same day, Boeing filed an Answer denying the Complaint's allegations. The battle lines in this significant labor dispute have been drawn.

Boeing maintains substantial operations in Washington State and its Washington-based employees are largely unionized. After a strike in 2008 and after talks between the company and the union faltered in late 2009, Boeing announced plans for a new production line/facility in South Carolina. In response, the International Association of Machinists and Aerospace Workers union that represents many of Boeing's Washington employees filed a unfair labor practice charge against the company, alleging Boeing's decision to place its new production line in South Carolina violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA). Specifically, the union alleged Boeing's decision was in retaliation for the strikes and labor instability Boeing had been subjected to in Washington.

Boeing's Answer denies the NLRB's allegations and asserts a number of defenses. First, Boeing asserts that the statements alleged in the Complaint are protected under Section 8(c) of the NLRA, which reinforces the First Amendment's constitutional protection for free speech. Second, Boeing asserts its decision was based on numerous business-related factors having nothing to do with anticipated future labor unrest, such as South Carolina's favorable business environment, significant financial incentives, and a desire to achieve geographic diversity and stability for its operations, and that it would have made the same decision even if it had not taken the possibility of future labor strikes into consideration. Boeing also asserts that even if its decision was based on a desire to mitigate the adverse economic impact of future labor strife, to do so was not inherently destructive of protected employee rights under the NLRA. Finally, Boeing claims the remedy requested by the NLRB is impermissibly punitive and retroactive representing an unanticipated departure from NLRB and court precedent.

Prior NLRB decisions related to alleged employer retaliation have not involved fact patterns and situations such as a company's business decision to maintain its current operations but also open a new facility for new production in another locale. As such, this case is an attempt to significantly expand that theory and the reach of the NLRB into core company business decisions.

This case also has created competing political rhetoric between union supporters and the "Right to Work" movement. South Carolina is a "Right to Work" state, which means employees cannot be required to pay any union dues to retain their jobs. According to Sen. Lindsey Graham, R-SC, the NLRB's Complaint is seeking to "punish right-to-work states that value and promote their pro-business climates," and he has promised to fight "this outrageous decision by the NLRB - unelected bureaucrats that have put in motion a precedent that will destroy American businesses."

The allegations against Boeing, especially in conjunction with the severity of the proposed remedy, are startling. Boeing has already spent $2 billion on its new South Carolina facility, and the facility would create approximately 1,000 new jobs. An adverse ruling against Boeing would likely "shutter" this facility after the fact. According to former Board member Peter Schaumber, who served from 2002 until 2010, "there is no precedent to support this" and "[i]f this is a violation of the law, then there is something wrong with American labor law." Needless to say, employers must be cognizant of the aggressive and pro-union positions being espoused by the NLRB and consider their potential impact on significant business decisions.

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