First of all, excellent post by Laura Clawson describing the manner in which the NLRB’s Acting General Counsel handled the dismissal, presenting the judge with the Union’s withdrawal of the charge and the judge’s remand to the Regional director to approve the withdrawal.
In addition, Clawson’s assessment of how the manner should be perceived is on the money. Solomon’s statement, that this is the preferred way of resolving labor disputes is absolutely accurate. Believe me… after over 40 years experience with the Board, I know how this is done. So ideally, this should be the end. Both the Union and Boeing can go about their business, and South Carolina can get off its fear horse, appreciative of its luck that its billion-dollar investment didn’t go south due to its own recklessness.
But no… as Laura observes, the blockhead South Carolina contingent knows that it lost the offensive and probably feels dirty, since Boeing played them like fools. And they fell for Boeing’s dirty lie—and they know it, but don’t want to admit it.
The clear winner here is Lafe Solomon, the Board’s Acting General Counsel. He is a true professional who never let his eye get off the ball—unlike Boeing early on. Before Boeing came to its senses, it chose to abuse Solomon’s integrity by accusing him of engaging in an unprecedented prosecution. But labor professionals knew that Boeing’s contention was untrue. In fact, Boeing knew it as well.
There was almost a year of talks between Solomon’s office and Boeing; both facts and legal theory were discussed. And Boeing knew that Solomon’s Darlington Mills theory had validity. The only question was whether the proposed remedy required the South Carolina work to return to Puget Sound. A difficult problem, to be sure, but Darlington and its progeny really mandated the complaint the way it was drawn.
Boeing’s persuasion had failed and it knew about the theory behind the complaint. Playing a backroom game, Boeing informed South Carolina that the project billion dollar investment might be lost and persuaded Gov. Hailey and the South Carolina elected contingent to go to a publicity war against Solomon and the Board. In this war, Boeing called upon its membership in the NAM and the US Chamber of Commerce to support its claim that Solomon had gone off the reservation. Those folks have access to an echo machine which include the Wall Street Journal, the National Right to Work committee and a number of smaller voices, some of which were created for the purpose.
Did the mainstream press understand what Boeing was doing? Maybe they could have, but they seemed more interested in thunder than light. Perhaps they became distracted with the economics arguments or perhaps the silly South Carolina right-to-work argument. (How a South Carolina law which outlaws compulsory union membership could be seen as pertinent to Boeing’s refusal to bargain with the IAM in Washington state is beyond me.)
Anyway, South Carolina interested anti-union Congressional Oversight Committee chair Darrell Issa in defending Boeing. Issa’s involvement shows how legally corrupt the process became. He, declaring that Boeing had been denied the “right” to see what evidence and logic Solomon’s office had gathered, decided it was in Boeing’s best interest to demand it—to subpoena it—in the name of congressional oversight. He was simply going to give it to Boeing. Why? Because he thought he could and should. I don’t know if Boeing’s chief counsel Michael Mukasey urged him to do so; maybe for harassment purposes, but Mukasey didn’t need any of it. He was already fully informed by Solomon’s office. There were no big secrets. To the extent things were not known, it was the General Counsel and the Union who needed to know more, and their later subpoenas to Boeing resulted in ancillary litigation. But Issa really could only harass Solomon. He knew it, and proceeded to do so. His behavior was the same as if a congressman had ordered a US Attorney somewhere, to provided him with government evidence in order to turn it over to a defendant. In that example, the Congress critter would be behaving unethically. And Issa was clearly over the ethics line—purely venal.
So while the publicity people thought they were winning the battle, even ramping it up, both Boeing and the IAM had other fish to fry. Both knew that the CBA covering Boeing’s northwest operations were coming up for renewal. Indeed, they had known it well before the IAM ever filed the North Charleston unfair labor practice charges. Well aware of that eventuality, Solomon had even suggested that one way to resolve Local 751’s concern, was to make the union some sort of offer. Early on, Boeing had refused, angry at the Union and wanting to flex its muscles, never dreaming that it had already given away the game.
But reality has a way of appealing to the businessman. First, the hearing hadn’t gone very well, even though no evidence had yet been presented. Its arguments were unpersuasive to a veteran administrative law judge like Judge Anderson (on the bench for 30 years, experienced and respected in many previous difficult labor disputes). Then the NLRB and Union subpoenas began to invade some of Boeing’s document redoubts. It tried to redact harmful material, but could see the US district judge was not impressed.
Fortunately, Boeing’s earlier assessment had allowed it and the union to create a back-channel of negotiations and those talks were bearing fruit—pretty much as Solomon had suggested a year earlier. Realizing that it needed to have labor peace in the Northwest, due to the 737 MAX program and the 767 Tanker contract for the air force, and realizing that it could lose the NLRB case, Boeing finally chose to put it all into the new CBA, and settle the case. The CBA terms can be found elsewhere, but let it be said that the IAM is the clear winner under that contract.
But consider the losers; it’s not Boeing, which is happy with its deal. It got a contract it can live with and can keep the North Charleston operation as is. Plus it got a free publicity ride from the South Carolina yap dogs.
The Losers are Issa, Haley, Graham and the other South Carolina elected officials. Boeing knew, once this trial got under way, that it was going to have deal in the Northwest with the IAM in a positive fashion. It knew that the IAM would be where the solution would ultimately lie. It needed to be assuaged. It also knew that the negative publicity program it initially put in place could not solve the problem. So what it did was to sucker the South Carolina into assisting it in collectively bargaining with the IAM. That’s a place where elected officials do not want to be. No elected official should be negotiating on behalf of an employer with the employer’s union. It’s bad governing and it’s unethical. And yet, that’s what Issa and Haley’s minions did. In doing so they gave up any pretense that they were serving the public good.
But worse…their efforts probably gave the IAM a better contract than it might have negotiated had they stayed out of it altogether. If they had behaved properly, they should have told Boeing that it should promptly negotiate a settlement with the Union, offering to help (as unlikely as that might have been). Under such encouragement, a settlement similar to what was reached probably could have been achieved. The bonus pay feature, however, could have been less and saved Boeing quite a bit.
So, Welcome to the Labor Game Losers: Issa, Haley, Graham. You have been outed as incompetents. You never knew how the NLRB worked, you never understood that Boeing played you, you got entangled in collective bargaining on behalf of an employer and you even made it worse for them. And you did it all unethically.
The clear winner is the man who never lost sight of his job and performed it as the statute required—Lafe Solomon.
Laura quoted the pertinent portion of Solomon’s statement. I repeat it here:
This is the outcome we have always preferred, and one that is typical for our agency. About 90% of meritorious NLRB cases are resolved as a result of agreements between the parties or settlements with the agency before the conclusion of litigation.
One of the stated goals of the National Labor Relations Act is to foster collective bargaining and productive labor-management relations. From the beginning of this case, and at every step in the process, we have encouraged the parties to find a mutually-acceptable resolution that protects the rights of workers under federal labor law. The parties’ collective bargaining agreement, ratified this week, does just that.
To the extent that the South Carolina lapdogs claim victory here, know that they actually failed miserably. No one should let them off the blame hook. They deserve all the scorn that can be heaped upon them.