Labor Board Case Against Boeing Points to Fights to Come

For businesses, it was the type of action they have feared from a National Labor Relations Board dominated by Democrats. For labor unions, it was the type of action they have hoped for. And for both, it may be a sign of things to come.

These fears and hopes were stirred this week when the labor board’s top lawyer filed a case against Boeing, seeking to force it to move airplane production from a nonunion plant in South Carolina to a unionized one in Washington State. Boeing executives had publicly said they were making the move to avoid the kind of strikes the airplane maker had repeatedly faced in Washington; Lafe Solomon, the labor board’s acting general counsel, said the company’s motive constituted illegal retaliation against workers for exercising their right to strike.

The agency’s unusually bold action angered business groups and some politicians, who said it was an unwarranted attempt by the government to interfere with a fundamental corporate decision.

But under President Obama’s appointees, the agency, including Mr. Solomon and his staff, has sought to reinterpret and more vigorously enforce the rules governing employers and employees, from what workers can say about their bosses on Twitter to the use of Internet and phone voting in union elections.

How much ultimately changes will depend in large part on the decisions made by the five-member board, led by Wilma Liebman, that sits atop the agency. That panel hears cases brought by the board’s regional offices — overseen by Mr. Solomon — after employers, workers or unions file complaints.

Democratic-dominated boards often tilt toward unions and reverse the decisions of Republican-leaning boards, which usually tilt toward management, and vice versa. The current board — made up of three Democrats and one Republican, with one vacancy — is expected to reverse a Bush-era decision that stripped graduate teaching assistants at private universities of their right to bargain collectively. Labor experts also predict that the board will adopt a policy that makes it easier to organize nursing home workers by allowing unions to go after smaller units of workers inside those homes.

The biggest surprise has been the activist stance taken by Mr. Solomon, a career civil servant at the board for 39 years. He became acting general counsel in June 2010, and President Obama nominated him to be the permanent general counsel last January. The Senate has not yet confirmed him to the post.

In the Boeing case, Mr. Solomon charged that the company had illegally moved some production work of the 787 Dreamliner passenger plane to South Carolina to punish workers for past strikes and to avoid future ones. The remedy proposed by Mr. Solomon has been denounced as extreme by many business leaders: that Boeing move the work back to its unionized Puget Sound facilities, after it made a $2 billion investment and hired 1,000 nonunion workers in South Carolina.

Outraged, the National Association of Manufacturers warned that if the agency won this case, “no company will be safe from the N.L.R.B. stepping in to second-guess its business decisions on where to expand.”

Senator Jim DeMint, a South Carolina Republican, complained, “This is nothing more than a political favor for the unions who are supporting President Obama’s re-election campaign.”

The Boeing case was not the first time that Mr. Solomon has riled the business community and its Republican allies. Saying it is the domain of the federal government, he recently threatened to sue four Republican-heavy states — Arizona, South Carolina, South Dakota and Utah — in an effort to invalidate recent constitutional amendments that prohibit private sector workers from choosing a union by signing cards, a process known as card check.

He has also sought to extend the labor board’s reach into the world of the Internet. He approved requests from regional labor board officials to bring complaints against businesses that punished employees for Facebook and Twitter posts, including one case against Reuters. Mr. Solomon has also proposed that electronic voting be used when workers decide whether they want to unionize their workplace — a proposal that business groups maintain will make it easier for unions to coerce workers.

In an interview, Mr. Solomon, a 61-year-old Arkansas native, insisted that he was no radical.

“My goal is to enforce the National Labor Relations Act,” he said. That law, enacted in 1935, governs private sector workers’ right to unionize as well as relations between tens of thousands of companies and employees.

Mr. Solomon, who has worked for board members of both parties, said this case was straightforward: Boeing had retaliated against workers for exercising their federally protected right to strike. “They had a consistent message that they were doing this to punish their employees for having struck and having the power to strike in the future,” he said. “I can’t not issue a complaint in the face of such evidence.”

While the spotlight is on Mr. Solomon at the moment, people inside the agency and out expect that attention will soon move to the five-member board, whose decisions often have broad effect, much like court precedents.

Marshall Babson, a Democratic member of the board under President Reagan, said the board had “teed up a lot of important issues for consideration.” He said its behavior had been more moderate than the Reagan board, which, he recalls, reversed about two dozen pro-union decisions in one year.

The Obama board is expected to reverse a Bush-era decision that lets workers petition to decertify a union within days of a company’s recognizing a union through card check. That new ruling would most likely restore the old requirement that workers had to wait a year before trying to oust their union.

“The current majority views its role as promoting unionization in the private sector,” said Peter Schaumber, a Bush appointee who stepped down from the board in August.

Lynn Rhinehart, the general counsel for the A.F.L.-C.I.O., applauds many of the board’s recent moves and wishes it would do far more. “A lot of what they’ve done is pretty routine,” she said. “I think the allegations of activism are pretty overblown.”

Randel K. Johnson, senior vice president for labor affairs at the United States Chamber of Commerce, said employers were expecting a series of unfavorable rulings. “Many decisions are still in the pipeline, and we think where those are going to wind up is clear,” he said.

The chamber opposes a proposal that would require all private sector employers to post notices explaining workers’ rights to unionize. It also faulted the board for being more aggressive about reinstating pro-union workers who are illegally fired during unionization drives.

Samuel Estreicher, a labor law professor at New York University, said that, so far, the Obama board’s actions had not been out of line. “I don’t buy into the accusations that they’re doing something crazy,” he said.

Nonetheless, he criticized Mr. Solomon’s complaint against Boeing, saying that companies vulnerable to strikes — like the 56-day walkout against Boeing in 2008 — should be able to move operations while explaining to employees that strikes hurt profits and production.

Boeing has called the case “legally frivolous” and “a radical departure from both N.L.R.B. and Supreme Court precedent.”

Mr. Solomon dismissed accusations that he was following President Obama’s wishes in bringing the Boeing case, saying he had had no conversations with the White House about it.

Mr. Solomon said he was just a “career person” enforcing the law. “I feel that I really had no choice,” he said.