April 22, 2011
Labor Board Case Against Boeing Points to Fights to Come
By STEVEN GREENHOUSE
For businesses, it was the type of action they have feared from a National Labor Relations Board dominated by Democrats. For labor unions, it was the type of action they have hoped for. And for both, it may be a sign of things to come.
These fears and hopes were stirred this week when the labor board’s top lawyer filed a case against Boeing, seeking to force it to move airplane production from a nonunion plant in South Carolina to a unionized one in Washington State. Boeing executives had publicly said they were making the move to avoid the kind of strikes the airplane maker had repeatedly faced in Washington; Lafe Solomon, the labor board’s acting general counsel, said the company’s motive constituted illegal retaliation against workers for exercising their right to strike.
The agency’s unusually bold action angered business groups and some politicians, who said it was an unwarranted attempt by the government to interfere with a fundamental corporate decision.
But under President Obama’s appointees, the agency, including Mr. Solomon and his staff, has sought to reinterpret and more vigorously enforce the rules governing employers and employees, from what workers can say about their bosses on Twitter to the use of Internet and phone voting in union elections.
How much ultimately changes will depend in large part on the decisions made by the five-member board, led by Wilma Liebman, that sits atop the agency. That panel hears cases brought by the board’s regional offices — overseen by Mr. Solomon — after employers, workers or unions file complaints.
Democratic-dominated boards often tilt toward unions and reverse the decisions of Republican-leaning boards, which usually tilt toward management, and vice versa. The current board — made up of three Democrats and one Republican, with one vacancy — is expected to reverse a Bush-era decision that stripped graduate teaching assistants at private universities of their right to bargain collectively. Labor experts also predict that the board will adopt a policy that makes it easier to organize nursing home workers by allowing unions to go after smaller units of workers inside those homes.
The biggest surprise has been the activist stance taken by Mr. Solomon, a career civil servant at the board for 39 years. He became acting general counsel in June 2010, and President Obama nominated him to be the permanent general counsel last January. The Senate has not yet confirmed him to the post.
In the Boeing case, Mr. Solomon charged that the company had illegally moved some production work of the 787 Dreamliner passenger plane to South Carolina to punish workers for past strikes and to avoid future ones. The remedy proposed by Mr. Solomon has been denounced as extreme by many business leaders: that Boeing move the work back to its unionized Puget Sound facilities, after it made a $2 billion investment and hired 1,000 nonunion workers in South Carolina.
Outraged, the National Association of Manufacturers warned that if the agency won this case, “no company will be safe from the N.L.R.B. stepping in to second-guess its business decisions on where to expand.”
Senator Jim DeMint, a South Carolina Republican, complained, “This is nothing more than a political favor for the unions who are supporting President Obama’s re-election campaign.”
The Boeing case was not the first time that Mr. Solomon has riled the business community and its Republican allies. Saying it is the domain of the federal government, he recently threatened to sue four Republican-heavy states — Arizona, South Carolina, South Dakota and Utah — in an effort to invalidate recent constitutional amendments that prohibit private sector workers from choosing a union by signing cards, a process known as card check.
He has also sought to extend the labor board’s reach into the world of the Internet. He approved requests from regional labor board officials to bring complaints against businesses that punished employees for Facebook and Twitter posts, including one case against Reuters. Mr. Solomon has also proposed that electronic voting be used when workers decide whether they want to unionize their workplace — a proposal that business groups maintain will make it easier for unions to coerce workers.
In an interview, Mr. Solomon, a 61-year-old Arkansas native, insisted that he was no radical.
“My goal is to enforce the National Labor Relations Act,” he said. That law, enacted in 1935, governs private sector workers’ right to unionize as well as relations between tens of thousands of companies and employees.
Mr. Solomon, who has worked for board members of both parties, said this case was straightforward: Boeing had retaliated against workers for exercising their federally protected right to strike. “They had a consistent message that they were doing this to punish their employees for having struck and having the power to strike in the future,” he said. “I can’t not issue a complaint in the face of such evidence.”
While the spotlight is on Mr. Solomon at the moment, people inside the agency and out expect that attention will soon move to the five-member board, whose decisions often have broad effect, much like court precedents.
Marshall Babson, a Democratic member of the board under President Reagan, said the board had “teed up a lot of important issues for consideration.” He said its behavior had been more moderate than the Reagan board, which, he recalls, reversed about two dozen pro-union decisions in one year.
The Obama board is expected to reverse a Bush-era decision that lets workers petition to decertify a union within days of a company’s recognizing a union through card check. That new ruling would most likely restore the old requirement that workers had to wait a year before trying to oust their union.
“The current majority views its role as promoting unionization in the private sector,” said Peter Schaumber, a Bush appointee who stepped down from the board in August.
Lynn Rhinehart, the general counsel for the A.F.L.-C.I.O., applauds many of the board’s recent moves and wishes it would do far more. “A lot of what they’ve done is pretty routine,” she said. “I think the allegations of activism are pretty overblown.”
Randel K. Johnson, senior vice president for labor affairs at the United States Chamber of Commerce, said employers were expecting a series of unfavorable rulings. “Many decisions are still in the pipeline, and we think where those are going to wind up is clear,” he said.
The chamber opposes a proposal that would require all private sector employers to post notices explaining workers’ rights to unionize. It also faulted the board for being more aggressive about reinstating pro-union workers who are illegally fired during unionization drives.
Samuel Estreicher, a labor law professor at New York University, said that, so far, the Obama board’s actions had not been out of line. “I don’t buy into the accusations that they’re doing something crazy,” he said.
Nonetheless, he criticized Mr. Solomon’s complaint against Boeing, saying that companies vulnerable to strikes — like the 56-day walkout against Boeing in 2008 — should be able to move operations while explaining to employees that strikes hurt profits and production.
Boeing has called the case “legally frivolous” and “a radical departure from both N.L.R.B. and Supreme Court precedent.”
Mr. Solomon dismissed accusations that he was following President Obama’s wishes in bringing the Boeing case, saying he had had no conversations with the White House about it.
Mr. Solomon said he was just a “career person” enforcing the law. “I feel that I really had no choice,” he said.
This article has been revised to reflect the following correction:
Correction: April 23, 2011
An earlier version of this article misstated the party affiliation of Marshall Babson, a member of the National Labor Relations Board under President Reagan. He was a Democratic member of the board, not a Republican.
In this situation, the case proffered by Lafe Solomon against Boeing shall not stand.
394 US 759 (1969) NLRB v. Wyman-Gordon Co, decided April 23, 1969 provides a classic example wherein the Supreme Court negatives the action of the NLRB Board when they start drawing outside the lines of their limited & defined purpose as a "Quasi-Judicial" Governmental Agency charge with administering the NLRA.
The Supreme Court has issued countless landmark decisions (too nummerous to list) wherein they put the Agency in its rightful place when the agency issues rules & decisions outside its comeptence to administer.
That the NLRB Board & General Counsel think they may draw outside these lines and accord to themselves a "Quasi-Legislative" position and role in the Federal landscape of creating law, via fraud and artifice of a "Quasi-Legislative" position under the "Rulemaking Processes of the Adminsitrative Procedures Act" is both far fetched and legally shall fail once Boeing gets this case throough the Appellate level and on to the United States Supreme Court for an opinion.
For sure, this is a case which the now conservative Supreme Court will put on the calender.
As with the progeny of NLRB Board decision & orders and the line throughout the Supreme Court wherein non-interference with the bargaining processes of labor & private sector business meet - the Supreme Court, unlike the NLRB Board when issuing D & O's for political purposes shall in any event rule on the law.
The error in law which the NLRB General Counsel makes in the instant cases is readily apparent - whereby; until the case is adjudicated by a Court of competent jurisdiction, simply put, NLRB Board rule-making authority via the A.P.A. & the Federal Register go by the wayside.
The Boeing case is a clear example of the Boards General Counsel putting the proverbial cart before the horse.
That adjudicated cases may & do serve as vehicles for formulation of future agency policies, pratices and rule-making; until the predicate act of adjudication has issued, the NLRB is not in the position to make a rule aimed at applying to future cases as opposed to the current controversey which they attempt via quasi-legislative decree in the Boeing case.
Moreover, it does not lend license to the Board to take on the role clearly left to Congress, which remains the power to initiate, enact, author, amend legislation.... a role clearly outside of their competence to enforce. The US Supreme Court will have a field day correcting the General Counsel in this case.
Having said that - we need now turn to all the wrongly decided Court cases which have issued against the UBC rank & file worker, our union brothers & sisters....the cases which have ultimately destroyed the UBC where in direct contravention to factual cases, precedent & landmark Court decisions the NLRB Board and certain Courts and the DOL have worked in concert with the UBC to wrongly deny guaranteed rights to rank & file members both prior to and during the McCarron regime; one defined by dictatorial rule, collusion & fraud upon the courts with the consent of the DOL & NLRB.
In reply to this post by anonymous
NLRB BOARD REMEDY re: BOEING
As part of the remedy for the unfair labor practices alleged herein, the
Acting General Counsel seeks an Order requiring either that one of the high level
officials of Respondent alleged to have committed the violations enumerated above in
paragraph 6 read, or that a designated Board agent read in the presence of a high level
Boeing official, any notice that issues in this matter, and requiring Respondent to
broadcast such reading on Respondent's intranet to all employees.
Heil Hitler - oh wait, Heil Solomon....nice, now the Board wants to control Free Speech & dictate the terms of what is to be said & then force it to be broadcast over the Internet under the threat that should Boeing refuse, they will do it for them......classic anarchy!!
IAM should focus on Organizing the So Carolina Employees & forcing a Representation Election to determine whether the employees want a Union...if so, they can proceed to Negotiating a CBA
In reply to this post by Ted
pleasure derived by someone from another person's misfortune.
German Schadenfreude, from Schaden 'harm' + Freude 'joy'
The Remington Rand strike of 1936–37 was a strike by a federal union affiliated with the American Federation of Labor (AFL) against the Remington Rand company. The strike began in May 1936 and ended in April 1937, although the strike settlement would not be fully implemented until mid-1940.
The strike is notorious for spawning the "Mohawk Valley formula," a corporate plan for strikebreaking to discredit union leaders, frighten the public with the threat of violence, use local police and vigilantes to intimidate strikers, form puppet associations of "loyal employees" to influence public debate, fortify workplaces, employ large numbers of replacement workers, and threaten to close the plant if work is not resumed. The Mohawk Valley formula was described in an article by company president James Rand, Jr., and published in the National Association of Manufacturers Labor Relations Bulletin in the fourth month of the strike. The article was widely disseminated in pamphlet form by the National Association of Manufacturers (NAM) later that year.
In a landmark decision, the National Labor Relations Board called the Mohawk Valley formula "a battle plan for industrial war."
In March 1934, the AFL began organizing skilled workers at two typewriter companies, Underwood Typewriter Company and Remington Rand. The employees organized the District Council of Office Equipment Workers, a federal union affiliated with the Metal Trades Department of the American Federation of Labor. Six plants were organized in the towns of Tonawanda, Ilion and Syracuse in New York; in Middletown, Connecticut; and in Marietta and Norwood in Ohio.
James Rand, Jr., president of Remington Rand, refused to bargain with the union. On May 8, 1934, 6,500 workers struck to force the company to recognize the union and sign a collective bargaining agreement. On June 18, 1936, the firm recognized the union and signed a contract which provided wage increases and established a grievance procedure.
Remington Rand, however, continued a policy of harassment and obstruction toward the union. It often violated the contract in small ways (forcing the union to file time-consuming and costly grievances), harassed union leaders, and generally contested the union at every turn.
In February 1936, the District Council of Office Equipment Workers became the Remington Rand Joint Protective Board.
Beginning of the strike
Worker anger had built high by May 1936 when the company spread rumors that its plants were being bought by an unknown firm which would no longer recognize the union. Remington Rand then announced it had purchased a typewriter plant in nearby Elmira, and it might close the Tonawanda and Syracuse facilities. The union demanded information on possible plant closures, which the company refused. The union threatened a strike. In retaliation, the company distributed its own strike ballots and claimed it alone could speak for workers. Outraged union officials seized and destroyed the company's ballots, interrupted and broke up meetings at which ballots were handed out, and harassed and physically intimidated managers trying to conduct balloting.
The Joint Board quickly held its own strike vote. More than 75 percent of the union's members voted to strike. Union officials asked the company to submit the dispute to a federal mediator, but the company refused to do so. Instead, Remington Rand fired the presidents of the local unions in Tonawanda and Syracuse along with fifteen other union activists. Infuriated workers in Ilion, Syracuse and Tonawanda walked off their jobs on May 25, 1936, followed by Remington Rand workers in Ohio and Connecticut the following day...
NATIONAL LABOR RELATIONS BOARD v. REMINGTON RAND, INC.
94 F.2d 862 (1938)
NATIONAL LABOR RELATIONS BOARD
REMINGTON RAND, Inc. (CENTRAL EXECUTIVE COUNCIL OF REMINGTON RAND EMPLOYEES' ASS'NS, Intervener).
Circuit Court of Appeals, Second Circuit.
February 14, 1938.
Charles Fahy, of Washington, D. C., Robert B. Watts, Philip Levy, and H. Gardner Ingraham, all of Washington, D. C., for the National Labor Relations Board.
Bond, Schoeneck & King, of Syracuse, N. Y. (George H. Bond and Tracy H. Ferguson, both of Syracuse, N. Y., and John A. W. Simson, of Buffalo, N. Y., of counsel), for Remington Rand, Inc.
Bernard A. Kosicki, of Hartford, Conn., and John Holley Clark, Jr., of New York City, for intervener.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
L. HAND, Circuit Judge.
This case arises upon a petition filed by the National Labor Relations Board under section 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), for an order of this court to enforce the Board's order, passed on March 13th, 1937, in a proceeding before it against the respondent, Remington Rand, Inc. This was begun upon a charge, filed with the Board by the Remington Rand Joint Protective Board of the District Council Office Equipment Workers, on which the Board filed a complaint, alleging that the respondent was engaging in "unfair labor practices." The respondent answered, and a trial examiner was appointed who conducted hearings during November and December, 1936. The respondent appeared at these hearings, cross-examined the witnesses, but put in no evidence of its own except a few exhibits. The decision on which the order was issued is extremely voluminous, covering more than 200 pages of the printed record; it is rather in the nature of a discursive opinion than of specific findings of fact, but it ends with certain conclusions of law followed by the order, a copy of which is annexed at the end hereof. A summary of the more important facts stated in the decision is as follows. The respondent, a Delaware corporation, manufactures typewriters and general office equipment, and has a great number of plants scattered all over the world; it is engaged in interstate commerce. This controversy concerns six of its plants, i. e. those at Tonawanda, Ilion and Syracuse, in New York, at Middletown, in Connecticut, and at Marietta and Norwood, in Ohio. (At Tonawanda there are strictly speaking two plants, one at Tonawanda, and the other at North Tonawanda, but these have been treated as one.) A number of the maintenance and equipment workers in each of these plants had by 1934 organized into one or more local unions; in Ilion there were five, at Syracuse three, Middletown four, at Norwood five and at Marietta and Tonawanda one each. These locals were affiliated with general craft unions under the direction of the District Council of Office Equipment
[ 94 F.2d 866 ]
Workers, which the Metal Trades Department of the American Federation of Labor chartered in March, 1934; the Council was made up for the most part of workmen in the six plants, and was superseded in February 1936 by the complainant here, Remington Rand Joint Protective Board, which we shall speak of as the Joint Board. The Labor Board has found that this body represented a majority of the employees in the six plants, which together constituted an appropriate bargaining unit under section 9(b) of the Act, 29 U.S.C.A. § 159(b).
The controversy dates back to the autumn of 1935 and had its origin in rumors and newspaper articles that the respondent was about to set up a plant at Elmira, N. Y., and dismantle corresponding producing units elsewhere...
April 25, 2011
Labor Board Plans to Sue 2 States Over Union Rules
By STEVEN GREENHOUSE
The National Labor Relations Board has told state officials that it will soon file federal lawsuits against Arizona and South Dakota in seeking to invalidate those states’ constitutional amendments that prohibit private sector employees from choosing to unionize through a procedure known as card check.
In a letter sent on Friday, the labor board told those states that it would invoke the United States Constitution’s supremacy clause in asserting that the state constitutional amendments conflict with federal laws and are pre-empted by those laws. One federal official said the lawsuits would be filed in the next few days.
The Arizona and South Dakota constitutional amendments were promoted by various conservative groups worried that Congressional Democrats would pass legislation allowing unions to insist on using card check in organizing drives, meaning that an employer would have to recognize a union as soon as a majority of workers signed pro-union cards. Under current law, private sector employers can insist that secret ballots be used when unions are trying to organize.
Unions like using card check because it makes it easier to win unionization campaigns. Organizers can gather signature cards quietly until they get a majority of workers, making it more difficult for an employer to mount an opposition campaign. Congressional Republicans blocked passage of the card-check bill.
In January, the labor board threatened to sue four states, including South Carolina and Utah, which also have constitutional amendments barring card check. But in a letter sent on Friday to the four states’ attorneys generals, N.L.R.B. officials said they were suing just two states to conserve legal resources.
The labor board’s acting general counsel, Lafe Solomon, said the government reserved “the right to initiate a suit against the other two states at the appropriate time.”
N.L.R.B. officials evidently hope that victories in the Arizona and South Dakota cases would serve as precedents to invalidate the South Carolina and Utah prohibitions.
In an interview, Tom Horne, Arizona’s attorney general, criticized the board’s planned suit, saying, “I find it shocking that they do not believe in the fundamental principle of democracy that people have a right to a secret ballot.” He said that while federal pre-emption might apply to laws passed by Congress, it should not apply to the labor board’s decision allowing card check to be used in some unionization campaigns.
South Dakota’s attorney general, Marty J. Jackley, said he respectfully disagreed with the board’s analysis, adding that he did not believe the agency “has the authority under circumstances like this to sue a state.”
Last week, the N.L.R.B. infuriated South Carolina officials when it announced that it was bringing a case against Boeing that seeks to press the company to move an airline production line from a nonunion plant in South Carolina to a unionized facility in Washington State. The labor board said that Boeing had unlawfully moved the production line, originally planned for Washington, to retaliate against unionized employees there for engaging in repeated strikes.
WHAT SECTION OF THE UNITED STATES CODE CODIFIES CARD CHECK?
The Thirteenth Amendment of the United States Constitution?
"You know, comrades," says Stalin, "that I think in regard to this: I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this — who will count the votes, and how."
Vospominaniia Byvshego Sekretaria Stalina
[ Memoirs of the former secretary of Stalin]
encl: Letter from 9-States Attorney General, citing Citizens United and Corporations right to "free speech". Should be an interesting case.....it will end up in the Supreme Court on multiple grounds.......
ANONYMOUS: Question - Why has the NLRB allowed the UBC to Restrict the Right to Vote in Union Elections, Choose Business Agents & Officers of Locals, Councils & the International in 49-1/2 States - to the exception of Union Carpenters only (no other Union suffers this) and why have they Failed to take any Action against Doug McCarron?
Why has Lafe Solomon not come to our aid when it is clear that McCarron has abrogated our Section 7 Rights relative to the Vote?
I read the Fox News article, and the letter from South Carolina Attorney General Alan Wilson and eight other "Right to Work" State Attorney Generals to Acting General National Labor Relations Board Consul Lafe Solomon.
Why was Elaine Chao (married to Minority Leader of the U.S. Senate Mitch McConnell,) appointed as Secretary of Labor by Douglas McCarron crony George W. Bush?
And indeed, why has Lafe Solomon not come to our aid when it is clear that McCarron has abrogated our Section 7 Rights relative to the Vote?
These are Attorney General Alan Wilson's (apparently not well thought out) choice of words (my italics):
"The complaint charges Boeing with the commission of an unfair labor practice, but appears to do so without legal and factual foundation. This unparalleled and over arching action seeks to drive a stake through the heart of the free enterprise system."
SIKORSKY AIR MAINTENANCE - ALJ CASE from Jan. 21st - re: similar action in Alabama, as it directly involves the IAM Union.
I believe their fight is better waged organizing the unorganized. As you shall see, Empoyers have their ready gambit of tactics which the regularly employ to stave off a legitimate Union Organizing campaign. These tactics always fail and the record amount of precedent case law developed over 75+ years will easily defeat the emplyers anti-union campaign.
The Boards actions I believe will end up at the Supreme Court at the bare minimum as it is now a ripe issue, for reasons already stated.
Oh by the way - great posts on the drawings....where do you find that stuff?
The point of this ultimately is the the NLRB Board cannot dictate where an employer locates a physical plant, much to the chagrin of the impacted employees. Should they ever close down, effected employees would no doubt get the job offer at the new plant & probably be paid for relocation expenses & losses incurred on the real estate involved. Many though would not take the offer.
The US Supreme Court - when it gets there will not allow the Board to dictate where a company locates. So, the Union (IAM) has to be very proactive, get salts in place, get the folk organized, get the authorization cards signed and force a representation election. That is their best remedy for the South Carolina plant. Once complete, they will begin contract negotiations. As for Seattle, they have to make sure their Union Officials never give up the right to strike from their contract (CBA) in favor of a concession for Mandatory Arbitration as the UBC has done to us.
My entire point with this post relates to the Boards attempt to "legislate" which is out of their domain - that remains in the purview of Congress to initiate and pass legislation (an amendment to the NLRA).
The critical factor is in keeping the jobs in the United States. The NLRB Board, as others have ppointed out may drive this company to relocate offshore, via NAFTA etc & that is not acceptable. IAM will have to pull all stops out to preserve what they have in Seattle and keep those employees working. The IAM has a much stonger Union favoring employees as compared to the UBC. They will in th ened organize & sign the So Carolina employees to a union contract.
Back in 92 Ross Perot was derided as a nut, on the fringe etc by the mainstream media for his remarks regarding the passage of NAFTA, re: if NAFTA is signed there will be a giant sucking sound of jobs leaving the country". He was spot on then, yet the MSM & the so called experts & the politicans mad ehim out to be a loon. Perot knew what he was talking about. We need Obama gone ASAP, We need a President that has America as the first priority....NAFTA & CAFTA have to be repealed.
Thank you for the reply.
I agree 100% with your statement:
"their fight is better waged organizing the unorganized."
You really cut through all the extraneous thought here.
Nevertheless, I also believe in a diversity of tactics; sometimes we should accept union gains even when they're not won according to organizational doctrine, since the odds, in this economy, are definitely not in our favor: "never look a gift horse in the mouth."
But I understand you think Solomon's Boeing gift to IAM is a rotten apple anyway. It would be no surprise if you're right, considering how bureaucracy doesn't work.
As for the images: if the need for one comes to mind, just type in an image search, find something, drag it onto the desktop, click the "insert image" button on the tool bar, browse down the desktop list for it... bingo! Illustrated blog posts.
I thought you would appreciate them because you're an Alice Cooper fan.
My favorite song by him is:
re: extraneous thought - Congress creates this via Legislation intentionally designed to be obscure, referencing 27 other laws whihc you have to look up to find the actual context of a sentence or paragraph. It's horseshit.
The Judiciary on the other hand, at least the one of old (better read, educated etc) particularly the Supreme Court, often scold the NLRB Board or the Appellate Courts for failing to craft decisions which are clearly understood & easy to follow.
The law is not about feelings or political sentiment - and that is where people go worng in reading decisions...imparting their feelings verses what the text actually states.
Here's another good one from Cooper, except dude coming to town is Doug:
The graphics are pretty funny too - fitting one might say (rifle, hammer & the skull) could be a new UBC LOGO
In reply to this post by Ted
October 26, 2012 ALJ D & O
IAM will organize this plant & Boeing will either recognize them outright or there will be an election
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