03/25/2024: Boeing Fired Flight Training Instructors for Supporting the Union.

The Board also swats three motions and requests.

1. The Boeing Company, JD(SF)-10-24, 19-CA-272489 (ALJ Decision). The judge found that Boeing laid off seven unionized Flight Training Airplane (FTA) instructors in retaliation for them defeating an effort to decertify the union as their collective-bargaining representative. The judge applied the Wright Line burden-shifting framework, finding the General Counsel demonstrated that anti-union animus motivated the layoffs and that Boeing failed to show it would have taken the same action absent the protected union activity. The judge cited several cases finding mass discharges unlawful where motivated by some employees' protected activities, even if each individual's activities were unknown. Boeing also violated 8(a)(3) and (1) by discriminatorily subcontracting the FTA pilots' work to non-union contractors after the layoffs.

2. International Foundation for Electoral Systems, 05-CA-314152 (Unpublished Board Decision). The General Counsel alleges that the employer violated Section 8(a)(1) by threatening its employee with discipline for engaging in protected activity. The employer filed a motion to dismiss with the Board arguing that it did not threaten its employee. The Board denied the motion as the employer is disputing the factual allegations of the General Counsel, which is not something that the Board is going to rule on in a motion to dismiss.

3. United States Postal Service, 07-CA-299320 (Unpublished Board Decision). This is an order denying the General Counsel's request for special permission to appeal evidentiary rulings by an administrative law judge in an unfair labor practice case against the U.S. Postal Service. The Board found no need for relief at this stage because the hearing had concluded.

4. The Growing Stage - Theatre for Young Audiences, Inc., 22-CA-286287 (Unpublished Board Decision). After the expiration of a collective-bargaining agreement (CBA), the employer allegedly violated Section 8(a)(5) by withdrawing recognition and refusing to bargain with the union. The General Counsel issued a complaint against the employer. The employer submitted a motion to dismiss the complaint to the Board, arguing that the Board has previously declined jurisdiction over employers of its small size, that the alleged violation occurred more than six months before the charge was filed and was therefore time barred, and that it lawfully withdrew recognition. The Board rejected the motion and indicated that the employer should raise these issues in the administrative law judge (ALJ) proceeding and in any appeal from that proceeding.

In a conventional unfair labor practice (ULP) proceeding, a charge is filed with an NLRB regional office. That office investigates the charge and, if it is meritorious, issues a complaint. That complaint goes to an administrative law judge (ALJ) who holds a hearing and then issues a decision. After that decision, the parties can file exceptions and cross-exceptions (i.e. file an appeal) up to the five-member Board.

One thing that can be confusing about Board process is that the parties can submit certain motions and requests directly to the Board before and during the ALJ part of the proceeding. So it can appear as if the Board is issuing decisions on the case, e.g. by rejecting certain motions and arguments, before the case has actually made its way to the Board.

This confusion is easy to clear up by just distinguishing between the Board’s decisions on certain procedural motions and the Board’s decisions reviewing final ALJ decisions. The former are also typically (but not always) put out as unpublished decisions while the latter are typically put out as published decisions.

In almost all Board decisions on procedural motions, the Board just writes a few sentences denying the motion and instructing the party bringing it to raise the issue with the ALJ. This denial does not necessarily mean that the Board thinks the argument lacks merit. It just means that the Board thinks the issue should be litigated through the ALJ-to-Board process, not in a pre-decision motion.