01/30/2025: NLRB Reversed ALJ Decision That Boeing Illegally Fired Workers
Advice memo concluding Teamsters could strike without following 8(g) notice requirements.
The Boeing Company, 374 NLRB No. 20, 19-CA-272489 (Published Board Decision)
The National Labor Relations Board (NLRB) considered whether The Boeing Company violated labor laws by laying off seven Flight Training–Airplane pilots (FT-As) and subcontracting their work. The case arose after Boeing faced financial challenges from the grounding of its 737 MAX aircraft and the COVID-19 pandemic, leading to company-wide layoffs. The General Counsel argued that Boeing's actions were motivated by anti-union animus, particularly because the FT-As voted to retain union representation in an April 2020 decertification election.
Boeing contended that the layoffs were part of a legitimate business decision to cut costs and restructure operations, emphasizing that the FT-As' work had significantly declined. The company also claimed that contractor pilots could perform the same tasks more economically. The NLRB applied the dual-motive analysis from Wright Line, requiring the General Counsel to initially show that protected union activity was a motivating factor in the layoffs.
The administrative law judge found that Boeing violated Section 8(a)(3) and (1) of the National Labor Relations Act by discriminatorily laying off the FT-As due to their union activities. However, the Board disagreed, concluding that even if the union vote was a motivating factor, Boeing demonstrated it would have made the same decision regardless of the union activity. The Board found Boeing's financial struggles and strategic shift towards a new business model justified the layoffs.
The Board criticized the judge’s credibility findings regarding Boeing’s Vice President Craig Bomben, noting inconsistencies and lack of evidentiary support. It also rejected arguments that Boeing failed to present certain witnesses, as those individuals were either no longer employed or only peripherally involved. The Board emphasized that employers have broad discretion in making business decisions, provided they are not pretextual.
Ultimately, the Board dismissed the complaint, finding insufficient evidence that Boeing’s actions were unlawfully motivated. The decision underscores the principle that while employers must avoid retaliatory actions against unionized employees, they retain the right to make legitimate operational changes.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the dual-motive analysis for determining whether adverse employment actions are unlawfully motivated by protected activities.
Intertape Polymer Corp., 372 NLRB No. 133 (2023): Clarified the General Counsel’s burden in proving unlawful employer motivation without needing to correlate specific employee actions with discharges.
Ryder Distribution Resources, 311 NLRB 814 (1993): Reinforced that an employer’s business judgment is generally respected unless shown to be pretextual.
Teamsters Local 63 (Bellflower Dental Group), 21-CG-324363 (Advice Memo)
The case involves Bellflower Dental Group and Teamsters Local 63, centering on whether the union was required to provide Section 8(g) notice before striking. Section 8(g) requires healthcare institutions to receive 10 days' notice before any strike or picketing.
The dental practice and union had a history of collective bargaining agreements, with the most recent agreement being extended day-to-day until August 2023. While the parties reached agreement on most terms in 2022, they couldn't resolve retroactivity issues. The situation escalated when the pension fund warned about potential withdrawal liability if a new agreement wasn't reached.
In August 2023, key events unfolded rapidly. The employer sent letters to employees that the union considered direct dealing. On August 15, after the union sent a notice canceling collective bargaining agreements, the employer held meetings telling employees they were no longer union-represented and would face benefit reductions. That evening, the union held an emergency strike vote, and employees began striking the next day.
The central legal question was whether the employer's August 15 actions were serious enough unfair labor practices (ULPs) to allow the union to strike without providing Section 8(g) notice. The Division of Advice concluded they were, citing the employer's unlawful withdrawal of recognition and announced unilateral changes to working conditions. The fact that these changes weren't implemented was deemed irrelevant, as the mere threat was actionable.
The Division recommended dismissing the Section 8(g) charge, finding that while earlier strike plans might have required notice, the August 15 ULPs were serious enough to trigger the Mastro Plastics exception to notice requirements.
Significant Cases Cited
Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956): Established that serious employer ULPs can justify strikes without statutory notice requirements.
Georgetown Univ. Dental Clinic, 262 NLRB 698 (1982): Held that dental facilities providing patient care qualify as healthcare institutions under the Act.
Troy Grove, Inc., 372 NLRB No. 94 (2023): Determined that unilateral changes become actionable upon threat of implementation, not actual implementation.
Green Standard Cultivation, 07-CA-298563 (Advice Memo)
In a three-sentence email, the Division of Advice concluded that two individuals who work at a marijuana processing plant are agricultural workers and therefore not covered by the National Labor Relations Act.
First Student, Inc., 19-UD-357422 (Regional Election Decision)
The NLRB Regional Director dismissed a petition seeking a deauthorization election among school bus drivers employed by First Student, Inc. and represented by Teamsters Local 58. The petition covered drivers in the Battle Ground and Hockinson School Districts.
Local 58 had historically represented these drivers under various contractor employers. In 2009, First Student entered into a National Master Agreement with the Teamsters that created a single national bargaining unit. While Local 58 was not originally listed in the agreement's Appendix A (as First Student was not yet the employer), the agreement contemplated including additional locals as First Student acquired new operations.
In July 2021, First Student took over the bus service and entered into a memorandum of agreement with Local 58. While this local agreement did not explicitly mention the National Agreement, evidence showed the parties intended the National Agreement would prevail except where the local agreement provided superior benefits. The petitioner argued she was unaware of the National Agreement, though evidence showed it was distributed to stewards in 2022.
The Regional Director analyzed the case under Board precedent holding that when previously separate units have been merged into a single unit, petitions for deauthorization elections in only certain original units should be dismissed. While prior cases typically involved locals listed in the National Agreement's appendix, the Director found this distinction immaterial. The merger doctrine does not require employee acquiescence or notification of unit changes. The National Agreement explicitly contemplated incorporating new locals as First Student acquired operations, and the parties' negotiations demonstrated they understood these employees had been merged into the national unit.
Significant Cases Cited
Illinois School Bus Co., 231 NLRB 1 (1977): Held deauthorization petitions for only part of merged unit must be dismissed.
S.B. Rest. of Huntington, 223 NLRB 1445 (1976): Established that separate units effectively merged into single unit cannot be subject to partial deauthorization.
Albertson's Inc., 307 NLRB 338 (1992): Applied same principle in decertification context.
Wisconsin Bell, 283 NLRB 1165 (1987): Confirmed merged units cannot be partially decertified.
FSM Group, LLC, 19-AC-343533 (Regional Election Decision)
This decision addresses whether FSM Group, LLC falls under NLRB jurisdiction after taking over operation of a fuel tank farm at Seattle-Tacoma International Airport from Swissport Fueling Services. The case arose when Teamsters Local 174 sought to amend its certification to reflect FSM as the successor employer.
The key issue was whether FSM should be regulated under the National Labor Relations Act (NLRA) or the Railway Labor Act (RLA). Historically, contractors providing services to air carriers could fall under RLA jurisdiction based on a two-prong test examining whether: (1) the work was traditionally performed by carrier employees, and (2) the carrier exercised direct or indirect control.
However, in November 2024, the National Mediation Board (NMB) abandoned this test in Swissport Cargo Services, ruling that companies connected to air transportation only through service contracts are not carriers under the RLA. The NLRB subsequently adopted this analysis in December 2024.
FSM argued that both the NMB and NLRB erred in discarding the traditional two-prong test. However, FSM did not claim to be an air carrier or assert that it would qualify for RLA jurisdiction under the new standard. The Regional Director, bound by NLRB precedent, found that FSM was a contractor rather than an air carrier and therefore subject to NLRB jurisdiction.
The decision ordered the certification amended to substitute FSM for Swissport as the employer, noting that FSM met the NLRB's commerce standards and had hired a majority of Swissport's employees to perform essentially the same work.
Significant Cases Cited
Swissport Cargo Services, 52 NMB 25 (2024): NMB ruled that contractors connected to air carriers only through service contracts are not subject to RLA jurisdiction.
Swissport Cargo Services, 373 NLRB No. 144 (2024): NLRB adopted the NMB's new jurisdictional standard for air carrier contractors.
System One Corp., 322 NLRB 732 (1996): Established the traditional two-prong test for determining RLA jurisdiction over air carrier contractors.
Aircraft Services Intl., Inc., 352 NLRB 137 (2008): Applied the two-prong test to find RLA jurisdiction over aviation fuel tank farm operations.
Please include who voted on each case and how. Thanks