Boeing accuses NLRB of misusing official statements

SEATTLE — In a forceful letter to the National Labor Relations Board, top Boeing lawyer Michael Luttig rejected the labor agency's complaint against the company's opening of a South Carolina 787 plant, writing that its charges "fundamentally misquote or mischaracterize statements by Boeing executives."

The letter frames the dispute between Boeing and the NLRB as a matter of interpreting specific public statements made by the head of the commercial airplane division, Jim Albaugh, and by Boeing CEO Jim McNerney.

Those statements clearly articulate that repeated strikes by the Machinists union were a factor — indeed an "overriding factor," according to Albaugh — in the company's 2009 decision to place a second 787 Dreamliner assembly line in North Charleston, S.C., instead of Everett, Wash.

But Luttig's letter argues that this was an economic consideration that is "entirely permissible under existing law." He rejects the notion that the statements prove that Boeing's intent was to "punish" the union workforce for strikes in 2005 and 2008.

It is illegal under the National Labor Relations Act for employers to retaliate against workers for engaging in lawful activities, including strikes.

The letter is Boeing's initial response to a complaint against the company filed two weeks ago by NLRB acting general counsel Lafe Solomon.

The complaint resulted from a yearlong investigation of Boeing's 2009 decision, which came after the company and the Machinists failed to agree on a long-term no-strike deal.

The NLRB accused Boeing of making "coercive statements to its employees that it would remove or had removed work... because employees had struck" and said Boeing "threatened or impliedly threatened that the (IAM bargaining unit) would lose additional work in the event of future strikes."

Luttig's letter says no work was removed from Boeing employees in the Pacific Northwest. The second line in South Carolina added new work and did not transfer any existing work, he wrote.

The letter quotes an NLRB spokeswoman arguing that the charge of moving work from Washington's Puget Sound area stems from Boeing's original commitment in its 2003 agreement with the state of Washington to "build the Dreamliner airplanes in this state."

But Luttig's letter asserts that "Boeing did not commit to the State of Washington that it would build all of its 787s in that state."

Luttig decries as "far more egregious" the NLRB's characterization of various statements by Albaugh and McNerney.

In an interview with the New York Times last month, the NLRB's Solomon said those statements amounted to an unignorable and "consistent message that they were doing this to punish their employees for having struck and having the power to strike in the future."

The most pointed statement cited by Solomon came from Albaugh in a videotaped interview with the Seattle Times in March 2010. Albaugh said "the overriding factor (in choosing South Carolina) was not the business climate. And it was not the wages we are paying today.... It was that we can't afford to have a work stoppage every three years."

He added that another "overriding factor" was the "rate of escalation of wages" in the IAM bargaining unit.

And in advance of the 2009 decision, McNerney responded to a question from the Seattle Times as to how an assembly line in South Carolina could make business sense by saying that the inefficiencies inherent in the duplication of resources "are certainly more than overcome by strikes happening every three or four years in Puget Sound."

The NLRB specifically cited the statements in its complaint, which next month goes before an administrative law judge in a Seattle hearing.

Luttig wrote that Boeing will argue the statements have been radically mischaracterized.

"When not misquoted, it is not even arguable that Mr. Albaugh's statement constitutes a 'message' of 'punishment' to the union," his letter states.