The complaint is loonier than most thought.

We did not know just how loony the NLRB’s complaint was until last Friday’s hearing in Charleston of the House Oversight Committee. The agency’s Acting General Counsel, Lafe Solomon, first tried to duck questions from Rep. Tim ScottTimothy (Tim) Eugene ScottTrump to sign order penalizing colleges over perceived anti-Semitism on campus: report Here are the Senate Republicans who could vote to convict Trump GOP senators unveil bill to expand 'opportunity zone' reporting requirements MORE (R-S.C.) as to how opening a new plant could be a “transfer” of work. Solomon’s answers were reminiscent of President Clinton’s parsing of the word “is,” admitting that his definition of the word “transfer” was different from Rep. Scott’s—and from the dictionary definition also. 

According to Solomon, Boeing’s decision to open a new plant in South Carolina was a “transfer” of work because Boeing could have expanded its unionized facility in Washington state to produce additional 787 aircraft but chose not to. Undermining his repeated assertion that the complaint is “routine and not unprecedented,” Solomon claims the move was retaliatory because one of the reasons Boeing chose to open a non-union second production line in South Carolina was to avoid the threat of the repeated union strikes it suffered over the last 18 years outside Seattle. The NLRB has never found unlawful discrimination under the National Labor Relations Act that would entitle the general counsel to the relief Solomon seeks unless unit work has not been eliminated, reduced or subcontracted. 

Congressional criticism is ill-informed.

Some of the House Democrats’ commentary that Boeing is retaliating against its workers and thinks it is “above the law” is ill-informed and unhelpful. The Boeing complaint does not allege discrimination in a “term and or condition of employment” as that term is used in the Act and commonly understood.  It alleges unlawful discrimination by the company in making a plant location decision. Such decisions fall within a discrete class of management decisions, which the Supreme Court has described as having as their “focus only the economic profitability of [the company] wholly apart from the employment relationship.”  With limited exceptions such as with a run-away shop, this area of business decision-making has largely been left to management’s discretion. 

This case should be decided now in whole or in part.

Boeing has filed a motion to dismiss and strike the agency’s request that it go back to Washington state. The agency’s response is weak, relying on the mischievously incomplete statements of its complaint and cases clearly distinguishable on their facts.    

While an early resolution of the entire complaint is preferable, the complaint’s request that Boeing produce any additional 787 aircraft in Washington state should be stricken.  The Act’s remedial provisions are meant to restore employees to their positions as if the unlawful discrimination not occurred.  But there is nothing to restore here because Boeing’s unionized workers in Washington state have not been impacted whatsoever.  

In addition, the board and the courts have regularly denied the type of relief the Acting General Counsel seeks when to do so would place an “undue burden” on the employer rendering the relief punitive. The burden on Boeing easily meets the test: the company has invested $750 million in the new plant and hired 1,000 employees—all while Solomon vacillated for 14 months over whether to file a complaint.

In its opposition to Boeing’s motion to strike Solomon argues that the issue of whether Boeing would suffer an undue burden is an issue of fact requiring proof that should await a full trial. While right on his first point, he is wrong on the second. The agency should stipulate to facts we all know are true or agree to have Boeing call witnesses at a hearing on its motion and lift this threat off the backs of Boeing’s South Carolina workers and our struggling economy.  

Peter Schaumber is a former chairman of the National Labor Relations Board and served on the board from 2002 to 2010.