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Washington Labor & Employment Wire » National Labor Relations Board

NLRB Brings Complaint Against Boeing; Critical Senate Republicans Introduce Right-to-Work Legislation in Response


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On April 20, 2011, NLRB Acting General Counsel Lafe E. Solomon issued a complaint against the Boeing Company for its transfer of aircraft production jobs from the state of Washington to South Carolina in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (”NLRA”). The complaint follows an unfair labor practice complaint brought by IAM in March 2010 and asserts that by opening a new production line in North Charleston, SC rather than the Puget Sound area of Washington State, Boeing is engaging in anti-union discrimination with regard to hiring and employment and unlawfully interfering with, restraining or coercing its employees in their exercise of their NLRA rights.

In conducting an investigation and bringing the complaint, the NLRB referenced numerous statements made in the press by Boeing officials concerning the desire to set up the production line in a non-union setting. In particular, one high-level Boeing official was reported to have told the Seattle Times that “[t]he overriding factor (in locating the work in South Carolina) was not the business climate. And it was not the wages we’re paying today. It was that we cannot afford to have a work stoppage, you know, every three years.” Boeing production lines in the Puget Sound, WA area have been plagued by periodic strikes in the past.

In a statement issued by its Executive Vice President and General Counsel J. Michael Luttig, a former federal judge, Boeing emphatically contested the complaint, arguing that establishing a new production line in South Carolina did not represent a removal or transfer of work from Puget Sound or otherwise adversely affect any union employees. Boeing also asserted that the NLRB mischaracterized the statements of its officials, and that the company considered only permissible factors in locating the production line in South Carolina.

The filing of the NLRB complaint brought condemnation from Senate Republicans, who contended that the action improperly interfered with the ability of businesses to operate in right-to-work states and would force companies to instead move jobs overseas. The NLRB complaint prompted Sen. Lamar Alexander (R-TN) and South Carolina’s two Republican Senators, Sen. Jim DeMint and Sen. Lindsey Graham, to announce that they would soon unveil the Right to Work Protection Act, which would bar the NLRB or union contracts from overriding right-to-work laws and halt NLRB actions such as the Boeing complaint. The bill, which is unlikely to pass the Democratic-controlled Senate, would prohibit federal government from engaging in enforcement actions against companies electing to relocate to right-to-work states or from disadvantaging work located in right-to-work states when awarding federal government contracts.

The complaint also brought condemnation from the Republican state attorneys general of nine right-to-work states, who called on the NLRB to drop the complaint: Alabama, Arizona, Florida, Georgia, Nebraska, Oklahoma, South Carolina, Texas, and Virginia.

Both parties will be able to present evidence and arguments concerning the NLRB complaint in a June 14, 2011 hearing in Seattle, WA before an NLRB administrative law judge.

NLRB Acting General Counsel Solomon was nominated by President Obama earlier this year to a four-year term as General Counsel on a permanent basis. His nomination is currently pending in the Senate.


NLRB to Sue Arizona, South Dakota Over Secret Ballot Amendments

On April 22, 2011, the NLRB announced that it would bring suit against Arizona and South Dakota to overturn state constitutional amendments banning the use of the card-check process in union elections. In November 2010, voters in Arizona, South Dakota, South Carolina, and Utah passed constitutional amendments requiring secret ballot elections in all union elections. Stating that the amendments are preempted by federal labor law, Acting General Counsel Lafe Solomon announced the upcoming lawsuits against Arizona and South Dakota, declining to bring suit against the latter two states at this time to conserve taxpayer dollars. Currently, federal labor law permits voluntary card check or majority sign-up arrangements as an alternative method to select a union where the union and the employer reach an agreement. Section 7 of the NLRA permits workers to choose a union through two pathways: NLRB-conducted secret-ballot elections and voluntary recognition after a showing of majority support through the use of the card-check or majority sign-up processes. The state constitutional amendments would eliminate the latter pathway to union certification, preventing employers from entering into neutrality agreements with unions utilizing the card-check or majority sign-up processes.  

The NLRB initially threatened legal action against Arizona, South Carolina, South Dakota, and Utah in January 2011. In January 2011 letters to the attorneys general of those four states, Solomon warned that the state amendments would pressure employers who previously agreed to voluntary recognition agreements to withdraw recognition from labor organizations representing their work forces and could lead to unnecessary litigation by workers challenging unions with majority support. In response, the state attorneys general asserted the legality of those amendments and pledged to defend them.  

The state amendments are an outgrowth of the defeat of the Democratic-sponsored Employee Free Choice Act in the 111th Congress, which would have permitted the use of the card-check or majority sign-up processes outside the voluntary recognition context.  This year, Senate Republicans have introduced the Secret Ballot Protection Act, a federal bill mirroring the state constitutional amendments that would ban the card-check/voluntary recognition pathway and require secret ballot elections in all circumstances. With Democrats controlling the Senate, the legislation is unlikely to have majority support in that body, let alone the 60 votes needed for cloture.

NLRB Acting General Counsel Solomon was nominated by President Obama earlier this year to a four-year term as General Counsel on a permanent basis. His nomination is currently pending in the Senate.


Eighth Circuit Upholds Post-New Process Steel NLRB Delegation

On April 22, the Eighth Circuit upheld the decision of a three-member NLRB panel in NLRB v. Whitesell Corp., No. 10-2934 (8th Cir.). Following the Supreme Court’s June 2010 decision in New Process Steel, L.P. v. NLRB, __U.S. __, 130 S.Ct. 2635 (2010), which invalidated hundreds of NLRB decisions presided over by a panel of the two then-remaining members of the NLRB, this Eighth Circuit decision paves the way for the NLRB to seek enforcement of hundreds of invalidated decisions after reconsideration by three-member panels.

Following impasses between the executive branch and the Senate in the final year of the Bush administration and the first year of the Obama administration concerning Board appointments, three NLRB vacancies went unfilled between December 2007 and March 2010, leaving only two Board members, Democrat Wilma Liebman and Republican Peter Schaumber. In December 2007, the existing four-member NLRB had delegated its powers to a three-member panel.  That three-member panel was eventually reduced to Liebman and Schaumber upon the expiration of the third member’s term. These remaining two NLRB members continued to issue decisions. In New Process Steel, the Supreme Court invalidated those decisions as violating the NLRB’s three-member statutory quorum requirement.

In Whitesell Corp., the Eighth Circuit upheld a three-member panel’s post-New Process Steel reconsideration of a 2008 decision by the two-member panel. In light of New Process Steel, the court had previously declined to enforce that two-member panel decision. The court ruled that the previous denial of enforcement would not affect its decision to enforce a proper decision taken by a three-member NLRB panel reconsidering the initial decision. The Eighth Circuit opinion in Whitesell Corp. signals that federal appellate courts will enforce decisions of three-member panels rehearing the invalidated two-member decisions, making it likely that the NLRB will address the invalidated two-member panel cases in this manner.


Interested Parties Invited to Submit Amici to NLRB Concerning Witness Statements

On March 2, 2011, in Stephens Media LLC d/b/a Hawaii Tribune Herald (“Stephens Media”), No. 37-CA-7043, the NLRB invited interested parties to submit amici concerning employee witness statements.

In the first phase of Stephens Media, the Board ruled against the employer, a Hawaii newspaper, finding that it violated Section 8(a)(1) of the NLRA in refusing to provide union representatives to employees in disciplinary meetings and engaging in related unfair labor practices. 356 N.L.R.B. No. 63 (Feb. 14, 2011). The Board delayed ruling on a second issue – whether the employer was obligated to provide witness statements collected in the course of investigating the employee under Sections 8(a)(1) and 8(a)(5), setting aside the question for later determination.

In previous decisions in Fleming Cos., 332 N.L.R.B. 1086 (2000), and Anheuser-Busch Inc., 237 N.L.R.B. 982 (1978), the NLRB ruled that the employer’s obligation to furnish information “does not encompass the duty to furnish witness statements themselves.” In the February 14, Stephens Media decision, however, the Board questioned the scope and applicability of these decisions to the instant case. The request for amici for a second phase of Stephens Media, seeks clarification on (1) the definition of “witness statements” under Fleming Cos. And Anheuser-Busch, Inc., and (2) whether other types of investigatory documents are included in the employer’s duty to provide information.

Interested parties have until April 1, 2011 to file amicus briefs, which may be no more than 25 pages in length. The Board has also provided two additional weeks, until April 15, for response briefs.


Republican Senators Urge Obama to Withdraw Becker Appointment to NLRB

On February 3, 2011, in response to President Obama re-nominating Craig Becker to a full five-year term as a member of the National Labor Relations Board, all 47 Republican Senators have co-signed a letter calling upon the White House to rescind his nomination.  Becker, who has served on the Board via recess appointment since March 2010, had previously been nominated by President Obama on multiple occasions in 2009 and 2010, but each time failed to overcome Republican-led filibusters. The Senators allege that Becker has polarized the Board since receiving his recess appointment and criticized the Board’s case decisions and rulemaking since Becker began sitting on the panel. The Senators also reiterated their intent to continue filibustering his nomination.

Becker, the former associate general counsel for the Service Employees International Union (SEIU), has drawn fire from business groups and Senate Republicans since first being nominated by President Obama in July 2009. After the Senate returned his nomination without acting upon it at the end of the 2009 session, was re-nominated him in January 2010. In February 2010, in a rare NLRB nomination hearing before the Senate HELP Committee, Becker was aggressively questioned about his prior pro-labor writings, alleged conflicts of interest relating to his previous employment with the SEIU and the AFL-CIO, and allegations that he would administratively implement pro-labor regulations while serving on the board, including elements of the proposed Employee Free Choice Act (”EFCA”). Becker’s testimony did not assuage Senate Republicans and a cloture vote on his nomination failed on February 9, 2010.

With the Board down to two members, President Obama on March 27, 2010 provided recess appointments to Becker and Democratic labor lawyer Mark Pearce, who has since been confirmed to a full term. As a Board member, Becker has been a consistent pro-labor vote, but has not pursued sweeping EFCA-style policy changes via rule-making, as some critics alleged he would. Becker also has recused himself from a number of cases involving SEIU, its locals, and the AFL-CIO, but his critics have urged recusals from more cases involving SEIU and AFL-CIO affiliates.

The NLRB currently has a 3-1 Democratic majority, including Becker. As a recess appointee, Becker will leave the Board at the end of 2011. Senate confirmation to a full term would extend his term through the end of 2014.  In January, President Obama nominated Republican NLRB lawyer Terence F. Flynn to the fill the Board’s final vacancy. Flynn’s nomination awaits Senate action.


NLRB Acting General Counsel Solomon to Delay Lawsuits Over State Card-Check Bans

In a February 2, 2011 letter, NLRB Acting General Counsel Lafe Solomon appeared to back down from a previous threat to bring suit against four states that recently passed state constitutional amendments banning the use of the card check process and requiring secret ballot elections for union recognition. In his letter, he expressed an interest resolving apparent conflicts between the state amendments and federal law without “the necessity of costly litigation.”

Previously, on January 13, Solomon had sent the state attorneys general a letter threatening legal action to halt implementation of the amendments. He warned the attorneys general of those states that such amendments were contrary to federal labor law and preempted under the U.S. Constitution. Solomon also warned that the amendments would pressure employers who previously agreed to voluntary recognition agreements to withdraw recognition from labor organizations representing their work forces and could lead to unnecessary litigation by workers challenging unions with majority support. Solomon asked the four state attorneys general to voluntarily halt the amendments from becoming law or to prevent reliance on those amendments, warning that the NLRB would be filing suit to overturn or otherwise void the amendments.

The response of Attorneys General Tom Horne of Arizona, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, and Mark L. Shurtleff of Utah in a joint letter on January 27 claimed that the amendments could be reconciled with federal law, and pledged to defend them. In urging resolution of the matter, Solomon’s February 2 letter agreed that he hoped that the amendments could be reconciled with the NLRA.

In November, voters Arizona, South Carolina, South Dakota, and Utah passed constitutional amendments requiring secret ballot elections in all union elections. Currently, Section 7 of the NLRA permits workers to choose a union through two pathways: NLRB-conducted secret ballot elections and voluntary recognition after a showing of majority support through the use of the card check process. The state amendments are an outgrowth of the defeat of the Democratic-sponsored Employee Free Choice Act in the 111th Congress, which would have permitted the use of the card check process for union selection even outside the context of voluntary recognition.


NLRB Upholds Practice of “Bannering”

By a 3-1 margin, the NLRB upheld the tactic of “bannering,” in which unions display large banners at construction sites of neutral employers proclaiming the existence of a labor dispute with a primary employer. Southwest Reg’l Council of Carpenters (New Star Gen. Contractors Inc.), 356 N.L.R.B. No. 88 (February 3, 2011). This tactic is intended to pressure or shame neutral, secondary employers engaging in business with the primary employer.

The three Democratic appointees constituting the majority, Chairwoman Wilma Liebman and Members Craig Becker and Mark Pearce, concluded that bannering did not constitute an unlawful secondary boycott. The majority held that the tactic 1) did not amount to signal picketing (urging employees of the neutral employer to stop work) in violation NLRA Sec. 8(b)(4)(i)(B), and 2) was not a prohibited threat, restraint or coercion of a neutral employer under NLRA Sec. 8(b)(4)(ii)(B). The Board based its decision on Carpenters & Joiners of America (Eliason & Knuth of Arizona Inc.), 355 N.L.R.B. No. 159 (2010), in which the same majority held that bannering did constitute unlawful secondary picketing because, unlike unlawful secondary picketing, the practice was not confrontational. The majority noted that the banners and related handbills at the construction sites did not call for a strike or job action, with the handbills explicitly clarifying that the union was not urging work stoppages or slow downs at the job sites of the neutral employer.

In dissent, Member Brian Hayes, the lone Republican on the Board, argued that bannering amounted to a secondary boycott and could not be distinguished from confrontational picketing. He said the majority applied an overly narrow reading of NLRA Sec. 8(b)(4) and was contrary to Board precedent and NLRA principles.


President Obama Re-Nominates Craig Becker to NLRB

On January 26, 2011, President Obama re-nominated Craig Becker to a full five-year term as a member of the National Labor Relations Board. Becker, who has served on the Board via recess appointment since March 2010, has previously been nominated by President Obama on multiple occasions in 2009 and 2010, but each time failed to overcome Republican-led filibusters. As a recess appointee, Becker will leave the Board at the end of 2011. Senate confirmation to a full term, unlikely in light of recent gains by Senate Republicans in the 2010 election, would extend his term through the end of 2014.

Becker, the former associate general counsel for the Service Employees International Union (SEIU), has drawn fire from business groups and Senate Republicans since first being nominated by President Obama in July 2009. After the Senate returned his nomination without acting upon it at the end of the 2009 session, was re-nominated him in January 2010. In February 2010, in a rare NLRB nomination hearing before the Senate HELP Committee, Becker was aggressively questioned about his prior pro-labor writings, alleged conflicts of interest relating to his previous employment with the SEIU and the AFL-CIO, and allegations that he would administratively implement pro-labor regulations while serving on the board, including elements of the proposed Employee Free Choice Act (”EFCA”). Becker’s testimony did not assuage Senate Republicans and a cloture vote on his nomination failed on February 9, 2010.

With the Board down to two members, President Obama on March 27, 2010 provided recess appointments to Becker and Democratic labor lawyer Mark Pearce, who has since been confirmed to a full term. As a Board member, Becker has been a consistent pro-labor vote, but has not pursued sweeping EFCA-style policy changes via rule-making, as some critics alleged he would. Becker also has recused himself from a number of cases involving SEIU, its locals, and the AFL-CIO, but his critics have urged recusals from more cases involving SEIU and AFL-CIO affiliates.

The NLRB currently has a 3-1 Democratic majority, including Becker. Earlier this month, President Obama nominated Republican NLRB lawyer Terence F. Flynn to the fill the Board’s final vacancy. Flynn’s nomination awaits Senate action.


NLRB Acting General Counsel Proposes Changes in Arbitration Deferral

In a January 20, 2011 memorandum to the regional offices of the National Labor Relations Board (”NLRB” or “Board”), NLRB Acting General Counsel Lafe Solomon proposed that the NLRB adopt a new approach for deferral to arbitration decisions concerning NLRA Section 8(a)(1) interference and Section 8(a)(3) discrimination cases.

The memorandum (Memorandum GC 11-05) proposed changing the burden of proof for deferral, shifting the burden to the party requesting deferral. Under the new proposed test, the party requesting deferral would have to demonstrate (1) the contract at issue incorporated the statutory right at issue or otherwise presented the statutory issue to the arbitrator, and (2) in determining the issue, the arbitrator correctly and adequately spelled-out and applied the appropriate statutory principles. If such showing were made, Solomon proposed that the Board should defer to the arbitration award unless the award was “clearly repugnant” or inconsistent with the NLRA.

Solomon, who was nominated by President Obama earlier this month to a four-year term as General Counsel, explained that such an approach would ensure that substantive outcomes from arbitrations would not depart from those the Board would reach, protecting statutory requirements and protections. In making this recommendation, Solomon referenced language in NLRA Section 10(a), stating that the NLRA’s authority “shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise,” and argued that the provision limited the ability of parties to enter into private agreements or alternative dispute resolution that would alter protected NLRA rights. Nevertheless, Solomon noted Congress has favored private resolution of labor disputes and provided the Board with significant leeway to defer to arbitration procedures, as long as the individual rights protected by Section 10(a) were respected.

Solomon’s memorandum also referenced 14 Penn Plaza v. Pyett, 129 S. Ct. 1456 (2009), a recent Supreme Court opinion which held that unions are able to mandate arbitration to resolve statutory discrimination claims - thus waiving employee rights to bring such cases in a particular forum - provided that the collective bargaining agreement expresses the waiver in clear and unmistakable terms and gives the arbitrator the authority to decide the statutory issue. Solomon noted that the NLRB’s existing standard for deferral set forth in Olin Corp., 268 N.L.R.B. 573 (1984), was in tension with 14 Penn Plaza, as it permitted deferral to arbitration awards that differed significantly from NLRB standards, requiring only that the arbitrator considered facts relevant to resolve contractual and statutory issues. The new standard would resolve this tension by ensuring that the arbitrator adequately considered statutory rights and resolved unfair labor practice complaints consistent with the NLRA.


NLRB Threatens Showdown Over State Card Check Amendments

In letters to four state attorneys general released on January 13, 2011, NLRB Acting General Counsel Lafe Solomon threatened to sue four states that recently passed state constitutional amendments banning the use of the card check process in union elections.

In November 2010, voters in Arizona, South Carolina, South Dakota, and Utah passed constitutional amendments requiring secret ballot elections in all union elections. Currently, Section 7 of the NLRA permits workers to choose a union through two pathways: NLRB-conducted secret ballot elections and voluntary recognition after a showing of majority support through the use of the card check process. The state amendments are an outgrowth of the defeat of the Democratic-sponsored Employee Free Choice Act in the 111th Congress, which would have permitted the use of the card check process for union selection even outside the context of voluntary recognition.

Solomon warned the attorneys generals of those states that such amendments were contrary to federal labor law and preempted under the U.S. Constitution. Solomon also warned that the amendments would pressure employers who previously agreed to voluntary recognition agreements to withdraw recognition from labor organizations representing their work forces and could lead to unnecessary litigation by workers challenging unions with majority support. Solomon asked the four state attorneys general to halt voluntarily the amendments from becoming law or to prevent reliance on those amendments.