In a move some have criticized as being aggressively pro-union, the National Labor Relations Board (NLRB) is attempting to prevent an employer from expanding its work in a non-union facility. On Wednesday, the NLRB filed a Complaint against Boeing alleging that, when expanding work on its new 787 Dreamliner aircraft, it illegally placed that work at a non-union facility in South Carolina rather than a union facility in Washington State. It is rare for the federal government to attempt to reverse an employer's business decision on where to locate a facility, but nonetheless, the NLRB now seeks to do just that by forcing Boeing to move the South Carolina work to Washington State.

While employers have long had the ability to decide where to perform work, in this case the NLRB claims Boeing's decision to place work in South Carolina rather than Washington State was unlawfully motivated by its desire to retaliate against its Washington facility's union employees for participating in past strikes and to chill future strike activity. To support this claim, the NLRB cited statements Boeing officials made in the media regarding "diversifying [its] labor pool and labor relationship" and expanding the 787 Dreamliner work to South Carolina due to "strikes happening every three to four years" in Washington State. It also cited internal statements that it decided to locate the 787 Dreamliner work in South Carolina to reduce its vulnerability to delivery disruptions caused by strikes. The International Association of Machinists, which represents Boeing employees at the Washington State facility, engaged in strikes against Boeing in 1977, 1989, 1995, 2005, and 2008.

The South Carolina legislature passed an economic development package that provided incentives for Boeing in connection with its decision to expand the 787 Dreamliner work in South Carolina. Boeing has said it has almost finished construction of the South Carolina facility where this work will be performed and has hired more than 1,000 new workers to perform that work.

The NLRB's recent decision to issue a complaint against Boeing serves as a warning to employers who are considering relocating work from a union facility to a non-union facility to consult experienced labor counsel when that action is under consideration.