Tag Archives: nlrb

NLRB Decision on Aircraft Mechanics at Boeing South Carolina is Huge Setback

Dusseldorf       Under this US administration, never say, “It can’t get much worse,” because it will.  In the assault on workers’ fundamental organizing rights under the National Labor Relations Act, the latest decision by the Trump-stacked board is potentially disastrous.  In a 3-1 decision with the NLRB’s Trump-appointed members outnumbering the lone Obama appointee with the other seats vacant, the board ruled that a unit of aircraft mechanics being sought by the IAM, the International Association of Machinists, was inappropriate.  In so doing, they overruled an earlier decision by the NLRB regional director sustaining the unit.   It’s really even worse than that.

This was a case where the Machinists had filed for a unit of 178 workers in March 2018.  A solid majority voted to join the union in June 2018 and were certified by the regional director of the NLRB.  The Machinists already represent 35,000 Boeing workers in Washington State facilities, but despite that, or perhaps because of that, Boeing refused to bargain with the union and instead challenged the unit on appeal after the election.  The regional director upheld the certification, so Boeing took a shot with the new Trump majority on the board and overturned the whole shebang.

Why is this important and so profoundly adverse for organizing?

Failing to amend the more than sixty-five-year-old labor law, the NLRB under Obama had allowed petitions to go directly to election on a somewhat faster timetable forcing companies to appeal later.  This small change was huge, because it eliminated employer tactics of trying to stall the election with delay tactics, hearings over trivial and nonexistent unit issues, until there was turnover or they had depressed the bargaining unit, adding to their ability to defeat the union in an election.  In this case, Boeing filed an appeal to thwart the will of the workers in the face of their victory.

The Obama NLRB had also allowed unions to carve out smaller units.  The language in the Act says “an appropriate bargaining unit” can be certified, meaning there is no such thing as a legal definition of one and only one appropriate unit.  Unions didn’t take much advantage of this, but in trying to organize huge plants, both the UAW in Tennessee and the IAM in South Carolina have tried this strategy.

Reading the NLRB decision, the Trump board has upended all precedent and the Act itself by declaring that this unit of 178-workers was inappropriate for two reasons.  First, they claim it involves two job classifications that do not have a “natural” community of interest.  Secondly, and more importantly, they claim the 178-workers have a community of interest with all 2700 production-and-maintenance workers in the Boeing plant.  Who know the merits of their first claim, but the clear signal on the second is that this radical NLRB is now claiming that there is only one appropriate unit, and that is the largest possible unit, where there is arguably a community of interest, making it virtually impossible to carve out smaller units under this board.

The NLRB in recent years has been a precarious harbor for advancing workers’ interests in organizing a union, and many unions have assiduously avoided going there and facing the uneven contests with employers in union elections.  The Trump NLRB has now signaled to companies and management attorneys everywhere that they should appeal all unit determinations that are anything short of including the kitchen sink, because they will now determine there to be a single allowable and appropriate unit, rather than “an appropriate unit” that might be within the scope of the union petitioner’s filing.

The Machinists leadership told the Post and Courier that they would keep on fighting.  They likely meant on the shop floor.  Given the makeup of the Supreme Court, an appeal of the NLRB’s Boeing decision would likely be a waste of time and money.  Given this decision of the NLRB, many union organizers will likely see bothering to go to election under this board will also likely be a waste of time and money.


McDonalds’ Sweetheart Deal with New NLRB Gets Fried

New Orleans   McDonalds’ strategy of stiff arming its workers, having its legal staff pursue frivolous delays to run out the clock on the Obama Administration, and do anything and everything to avoid taking any responsibility for its franchisees finally ran into a road block at the hands of the NLRB Administrative Law Judge.  The ALJ, Lauren Esposito, rejected a settlement by the new NLRB General Counsel, saying in her decision that it was not “a reasonable resolution based on the nature and scope of the violations alleged and the settlements’ limited remedial impact.”  For fast food workers and the rest of the service economy, this is huge, though it’s likely not over.  Nonetheless, the situation changed from “the fix is in” to a real shot at winning once again.

This story is the NLRB equivalent of the Trump “travel ban.”  Days before a long-awaited trial on a series of serious complaints of unfair labor practices against McDonalds that had been triggered by the work of the Fight for $15 Campaign, supported by the Service Employees International Union, a newly appointed NLRB General Counsel, who is the chief staffer for the board, asked for a delay to pursue a settlement with McDonalds.  A newly appointed NLRB General Counsel, who is the chief staffer for the board, asked for a delay to pursue a settlement with McDonalds.  The company had a million opportunities to settle for years but was clearly trying to run out the clock in hoping for a more favorable climate for its business, regardless of its law breaking, so in the same way that no one really believes the travel ban was not about Muslims, no one would ever believe this so-called proposed settlement was going to be a win for workers.

The real issue is of course the degree of control corporate McDonalds had over its franchisees.  The company claimed they were essentially “strangers in the night.”  The workers and anyone who has walked into a cookie-cutter McDonalds anywhere in the US and most of the world, knows they are indistinguishable, and that goes past the menu to the uniforms and work rules and kitchen procedures.  The Obama-era General Counsel who had issued the complaint held the whole corporation responsible for the action of any of its stores and its franchisees for their labor practices.  This recommendation went to the heart of the franchise model for McDonalds and all of its wannabes in that world.

A settlement is not supposed to be approved by the NLRB or the ALJs unless it gives substantial relief in an approximate way to what might have been won as compensation and correction in a trial on the merits of the complaint.  Usually, the company’s lawyers in a settlement negotiation will draft their wish list, but the fact that the charging party or union has to agree and that the NLRB is supposed to be the arbiter of fairness in the exchange, means the settlement is in the range of reasonableness.

Everyone would have bet the ALJ was under immense pressure here to cave on the standards but looking closely at the fact that the General Counsel was allowing corporate McDonalds to guarantee nothing, including that its franchisees would actually post the notice and live up to the terms in order to protect its franchisee fiction was clearly a bridge too far.  The ALJ then rejected the proposed settlement as inadequate.

Victory is still not assured for the workers, but with the judge’s actions, at least the fight became fairer for the workers again, In this day and time, that’s a victory in itself.