The Courts and Labor Law Today


Recently, the Boeing Company and the National Labor Relations Board (NLRB) underwent a controversial legal battle that eventually resulted in the NLRB dropping the case in 2011. The charge against Boeing, a corporation that designs, manufactures and sells aircraft internationally, was led by Lafe Solomon, then General Counsel of the NLRB. The NLRB's and Solomon's claim was that Boeing was opening a massive assembly plant in South Carolina, a right-to-work state, in retaliation against striking union workers in the Seattle, Washington area.

Republicans targeted this case in their criticism of the Obama Administration, claiming it was an example of government overreach and pro-union legal practices that infringed upon legitimate business practices. Additionally, the number of jobs being brought to South Carolina, led to claims that Solomon, and Obama by extension, were "job killers," despite the potential loss of jobs in Washington. The House passed a bill in September 2011 in direct response to this situation that would have limited the NLRB's power to order the closing or relocation of a factory, even when labor laws are violated. This criticism is what many spectators believe led to the charges being dropped and Solomon not being appointed to a permanent post with the NLRB. The cited reason for dropping the charges was an agreement that a different airliner would be built in the Seattle-area plant, thus there would not be massive job losses.

In the past year, several lawmakers in Washington have pushed for the state to pass a right-to-work law out of fear that they will lose Boeing as an employer to another state. In November 2013, a Washington union rejected a contract presented by Boeing, thus leading to discussions of Boeing leaving the state. So far, the response from most Washington lawmakers on becoming a right-to-work state has not been positive.

The conversation surrounding this case epitomizes the pro-union versus pro-business claims that labor law brings to the forefront. Since the case never went to court, no determination was ever made as to whether or not Boeing acted in retaliation, thus violating the National Labor Relations Act and Fair Labor Standards Act (FLSA). The NLRB has said that they would still likely pursue action in a similar case today, and, if circumstances had not changed, they would have continued with their actions against Boeing.

In 2011, the US Supreme Court ruled on one case pertaining to retaliation under the FLSA. This was a very narrow look at what "filed any complaint" means under the act. The Court ruled that both oral and written complaints sufficed to satisfy this provision.

Some other narrow questions pertaining to labor law being ruled on by the U.S. Supreme Court this term include what "changing clothes" means under Section 203(o) of the FLSA and whether an employer and union can violate Section 302 of the Labor Management Relations Act by entering into a neutrality agreement. There is also a petition [PDF] pertaining to the relevance of a governor's subjective motives for exercising a state's inherent power and contractual right to reduce the size of its unionized workforce when looking at the constitutionality of such a law.


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