July 1, 2011_nWLP 6/28/11 10:10 AM Page 12
12 Boeing lawyers versus 1 union lawyer
Machinists’ NLRB hearing against Boeing anti-climactic
By DON McINTOSH
Associate Editor
The National Labor Relations
Board (NLRB) case against Boeing
had its first day in court June 14. After
months of intense politicization of the
case by Republicans in Congress, the
hearing itself was anti-climactic.
In a Seattle federal courthouse, Boe-
ing lawyers asked Administrative Law
Judge Clifford Anderson to dismiss the
case outright. Anderson gave the
NLRB a week to respond, and Boeing
three days to respond to their response.
These and other preliminary legal ma-
neuvers give a sense of how long the
case could go on — if Boeing and the
Machinists District Lodge 751 don’t
settle the case voluntarily out of court.
The case goes to the heart of work-
ers’ right to strike. Today, Boeing Ma-
chinists are one of the few groups of
American workers that can strike ef-
fectively, since it’s very difficult to re-
place them. Their work is highly skilled
and specialized, and their product is
very complicated and vulnerable to
mistakes. So when Boeing Machinists
strike, production halts. And they’ve
struck five times in 35 years — 1977,
1989, 1995, 2005, and 2008. The
power of those strikes — which came
PAGE 12
from Boeing’s knowledge that it could-
n’t make planes without them — has
enabled Boeing’s union workers to
earn very decent wages and benefits.
But in the last decade, Boeing has
moved aggressively to outsource air-
craft parts and subassemblies to foreign
“partners” and vendors. And the com-
pany has been keen to develop its
South Carolina venture as a non-union
alternative to its Puget Sound and Port-
land manufacturing sites.
Boeing might have made the shift to
South Carolina with modesty … and
gotten away with it without any legal
hassle. Instead, it waged an ugly public
campaign of blackmail, pitting Wash-
ington and South Carolina against each
other in a race to see which state could
offer the most tax giveaways, public
subsidies, and stripped-down regula-
tions. And company higher-ups repeat-
edly used the threat of a move as a bar-
gaining stick against the union and as
a propaganda weapon against union-
ization.
Finally, when Boeing announced
Oct. 28, 2009 that it would locate its
second 787 Dreamliner assembly line
in South Carolina, company executives
— CEO Jim McNerney, Executive
Vice President Jim Albaugh, Vice Pres-
ident Ray Conner, and spokesman Jim
Proulx — made repeated public state-
ments linking the decision to past
strikes. They made that connection in
statements to the press, in a quarterly
earnings conference call with Wall
Street analysts, even in a company
memo to all employees.
Given all that evidence, Boeing may
have a very hard time proving that un-
dermining its union workers’ right to
strike was not a motive. The judge may
have to decide how much a motive it
was compared with other motives for
setting up in South Carolina. The new
$750 million facility in North Charles-
ton, with 1,000 nonunion workers,
opened June 10.
District Lodge 751 of the Interna-
tional Association of Machinists and
Aerospace Workers (IAM) filed the
NLRB charge March 26, 2010. After a
year-long investigation, the NLRB
agreed with IAM that Boeing broke
federal labor law when it decided in
late 2009 to locate a second 787 pro-
duction line in North Charleston, South
Carolina — because its Seattle and
Portland employees have sometimes
gone on strike.
In its complaint issued April 20, the
NLRB seeks a court order that Boeing
NORTHWEST LABOR PRESS
instead operate its second 787 line in
Washington, and use supply lines
maintained by its Seattle and Portland
facilities. It’s also asking that a Boeing
executive read a legal notice pledging
not to retaliate against employees for
striking — or have it read by an NLRB
agent in his presence — for broadcast
to all employees on the company’s in-
tranet system.
Boeing, in its legal response, denies
that it broke the law and says its deci-
sion to locate in South Carolina was
based on the state’s “favorable business
environment” and significant financial
incentives, and that it would have made
the same decision even if it had not
taken into consideration the impact of
future strikes.
Boeing has at least 12 attorneys with
three law firms officially attached to the
case, one of them the son of U.S.
Supreme Court Justice Antonin Scalia.
The NLRB has three attorneys as-
signed to the case. The IAM has one.
Thus far, early legal maneuvers
haven’t signaled how the judge will
rule. With support from the company,
three Boeing workers in South Car-
olina petitioned the judge to be allowed
to join the case as “intervenors,” giving
them a separate voice in the trial and
any settlement talks. IAM opposed the
petition. On June 8, Judge Anderson
denied the request. [However, on June
20, the NLRB’s full board in Washing-
ton, D.C., intervened in the case to
grant the three a limited right — to file
a legal brief in the case after the hearing
concludes.]
On June 9, attorneys general from
16 states, supported by Boeing, asked
to be allowed to file “friend of the
court” briefs in the case. The NLRB
and IAM opposed the request. On June
16, Judge Anderson ruled that the at-
torneys general could file the briefs, but
only to address the NLRB’s proposed
remedy, not whether or not a violation
of federal labor law occurred.
And on June 23, Anderson rejected
Boeing’s highly unusual request to sub-
poena the NLRB’s investigation docu-
ments.
“The investigation of this case by
the NLRB is not on trial. The trial will
be about the facts and the law,” said
David Campbell, attorney for the Ma-
chinists Union. “Boeing continues to
avoid the real issue. If they are so con-
fident in their case, as their CEO told
the Wall Street Journal, they should
have their day in court and try their
case.”
JULY 1, 2011