Over the past few weeks I have been in a vigorous e-mail and phone debate with a fellow management lawyer concerning the meaning and effect of the issuance of a complaint in the Boeing case. Previous posts here. Contrary to many gloomy management predictions, I think Boeing is a fairly garden variety application of long established labor law. My friend believes it is a fundamental assault on employer free speech and employer right to determine facility location.

Now we have General Electric announcing the opening a non-union locomotive factory in Texas. At the same time it is bargaining with union workers at at its existing locomotive factory in Pennsylvania. Assuming GE executives do not articulate an anti-union motivation for their actions, as is alleged that the Boeing executives did, this sets up an ideal scenario for testing the limits of the NLRB's interpretation of a Boeing style violation. Can the announcement of the location of a new facility in a right to work state during contract negotiations ever be viewed as an unfair labor practice? The correct conclusion is obvious, it cannot, without more, be a violation. Management has the right to determine where it locates facilities, as long as the decision is not tainted with anti-union motivation. The difference in Boeing is the NLRB believes the company's actions and statements establish an anti-union motivation for its decision and issued a complaint so that the issue will be tried before an administrative law judge. Boeing may still prevail, but it will have to show the relocation to South Carolina was motivated by lawful factors.

For a short opinion piece, rarely does any mainstream outfit get things so wrong. This from the WSJ. (If you are not a subscriber google search the title and you will find the article). The NLRB has issued a complaint accusing Boeing of committing an unfair labor practice when it moved a production line from Washington to South Carolina, and blamed the union's strike activity for the decision. Previous posts here. The issuance of a complaint means the NLRB believes there is sufficient evidence of a violation to warrant a trial on the issue before an administrative law judge. It is not a ruling, as the subtitle of the WSJ piece suggests. At the trial the employer will have the opportunity to prove its motivation was not based upon the union's protected right to strike, but rather was based on sound economic factors. Its really a pretty pedestrian legal theory applied to seemingly atrocious facts created by Boeing's own statements. This is law school 101. You can always file a complaint, its that pesky proof thats the hard part. 

Essentially critics of the Boeing complaint are saying labor, and the federal agency protecting labor's statutory rights has no business second guessing an employer's decision to relocate a plant. That position, however, is contrary to well established labor law principles. An employer is not free to relocate a plant to avoid unionization, or because a union lawfully exercises a right (like striking). The article also implies an employer can simply move overseas. But such a move is also susceptible to a Boeing like Complaint, if it is motivated by anti-union sentiments. 

The WSJ writer makes an absurd claim that the NLRB complaint is an assault on "the federal right to work law." A few senators, notably both senators from South Carolina, have introduced legislation prohibiting the NLRB or union contracts from pre-empting state right to work laws. There may be a legislative solution to this problem, but its not the proposed legislation discussed in the article. If a state passes a right to work law, there is nothing the NLRB or union can do to change the effect of the state law.  The proposed legislation is totally redundant. Section 14(b) of the NLRA already prevents the NLRB or collective bargaining agreements from interfering with state right to work laws. 

Finally, right to work has nothing to do with the issues addressed in the Boeing Complaint. Right to work laws guarantee an employee does not have to belong to, or pay a union in order to keep a job in a unionized facility. Such laws do not directly impact whether an employer can relocate or not.