Boeing Files Formal Response, Refutes NLRB’s Facts, Legal Claims

The Boeing Company has filed its “final answer” in response to the National Labor Relations Board’s April 20 complaint against the company for locating new assembly facilities for the 787 Dreamliner in South Carolina. The company denies every claim in the NLRB’s charges, rebutting each one with direct and forceful statements.

The legal document (available here) was filed with the NLRB’s Seattle-based Region 19, where an Administrative Law Judge will hear the complaint on June 14. Along with the company’s letter sent Tuesday to the NLRB’s acting general counsel, Lafe Solomon, the company has effectively destroyed the factual and legal case on which the NLRB based its unprecedented, extreme complaint.

The leading point of refutation:

Boeing’s decision to place the second 787 assembly line in North Charleston was based upon a number of varied factors, including a favorable business environment in South Carolina for manufacturing companies like Boeing; significant financial incentives from the State of South Carolina; achieving geographic diversity of its commercial airline operations; as well as to protect the stability of the 787’s global production system. In any event, even ascribing an intent to Boeing that it placed the second line in North Charleston so as to mitigate the harmful economic effects of an anticipated future strike would not be evidence that the decision to place the second assembly line in North Charleston was designed to retaliate against the IAM for past strikes. Nevertheless, Boeing would have made the same decisions with respect to the placement of the second assembly line in North Charleston even if it had not taken into consideration the damaging impact of future strikes on the production of 787s.

The legal filing raises numerous other credible points, e.g., noting that the International Association of Machinists and Aerospace Workers had waived its rights to challenge Boeing in a case like this as part of its collective bargaining agreement.

Further, the remedy proposed by Solomon — forcing Boeing to assemble the plane in Washington State — is also punitive, would harm Boeing’s employees, and does not represent the reinstatement of the status quo as required by federal labor law. And contrary to the Solomon’s claims, the NLRB’s remedy would in fact require Boeing to close the South Carolina facility.

A new legal issue is also raised: “The Complaint is ultra vires because the Acting General Counsel of the NLRB did not lawfully hold the office of Acting General Counsel at the time he directed that the Complaint be filed.” The legal term, ultra vires, means acting beyond one’s authority.

The document was filed by the company’s attorneys, William Kilberg of the Washington offices of Gibson, Dunn & Crutcher and Richard Hankins of the Atlanta-based law firm, McKenna, Long and Aldridge.

The NLRB’s original complaint is here.

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