On April 20, 2011, the Acting General Counsel of the NLRB issued a complaint against The Boeing Company (Boeing) based on Boeing’s decision to place a second production line for one of its aircrafts in South Carolina, a right-to-work state. The acting general counsel claims that Boeing’s decision was in retaliation for past strikes by its employees in Washington and was “inherently destructive” of rights guaranteed under Section 7 of the National Labor Relations Act (NLRA). The acting general counsel is seeking a return of the production line to Washington, among other remedies.

In Boeing’s answer to the complaint, it contends that “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.” Boeing argues that it would have made the same decision even without considering the impact of future strikes and that its placement of work in South Carolina did not “remove” work from Washington. Additionally, Boeing points to the terms of the parties’ collective bargaining agreement that allegedly allows Boeing to place work in any location of its choice without having to bargain with the union.

As the NLRB becomes more aggressive and more creative with its enforcement of the NLRA under the Obama administration, employers need to be cautious in making decisions that impact their unionized workforce. While the NLRB contends that it is concerned with the fact that Boeing employees in Washington have engaged in strikes in the past (five times since 1977) and that the placement of work is in retaliation for these strikes, this complaint likely reflects the increased scrutiny that will be applied to employment decisions involving all unionized work places and right-to-work states.