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As readers may recall, the National Labor Relations Board’s acting general counsel, Lafe Solomon, filed a controversial lawsuit against The Boeing Company in 2011. The lawsuit claimed that the firm had illegally placed new production of the 787 Dreamliner in South Carolina to retaliate against union members in Washington state for past strikes.
Although the unwarranted lawsuit was dropped once Boeing and the Machinists union reached a new contract (despite Solomon’s many solemn assertions that the litigation was about principle and upholding the law), it was feared that Solomon had given unions a powerful new tool to pressure companies during organizing campaigns and contract negotiations.
Should an employer fail to give in to union demands in either situation, and the company had recently transferred production or opened new facilities in another location — or was considering doing so, a union could file a complaint with the Board alleging the decisions were retaliatory, subjecting the employer to investigations and potential litigation. This could threaten the employer with the prospect that the Board might dictate to it where, when, and how it could produce its products.
This is now happening. With a new contract under negotiation, the Machinists union has been on strike against Lockheed Martin for several weeks. And following the path laid down by Solomon, the union recently accused Lockheed Martin of having moved work from Ft. Worth Texas to Marietta, Georgia, to retaliate against Texas workers for striking. The NLRB is investigating.
The facts in this case are a bit different from Boeing in that the workers at the Marietta plant are union. So it will be interesting to see if Solomon and his staff pursue the same line of argument. But regardless of how it turns out, the complaint against Lockheed Martin demonstrates that the fallout from the Boeing case did not dissipate simply because Solomon dropped the case. Indeed, the fact that a court was not given the opportunity to slap down Solomon’s legal theory —and the fact that he has said he may bring similar complaints in the future — means that the threat to employers, and the corresponding drag on job growth, will persist for some time.