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By Chris Opfer
Shortly before workers voted in favor of organizing at a Boeing plant in South Carolina, a National Labor Relations Board ethics official made a decision that could shape the company’s legal fight to keep unions off the campus.
Ethics official Lori Ketcham recently cleared Member William Emanuel (R) to participate in Boeing’s case challenging the workers’ vote for representation by the International Association of Machinists and Aerospace Workers, an agency spokesperson told Bloomberg Law. Although Emanuel’s former law firm has represented Boeing on other employment matters, the spokesperson said Ketcham determined Emanuel could rule on this case because the firm isn’t involved.
Emanuel and two other members denied Boeing’s request to pause the May 31 vote by a group of workers at the North Charleston plant. But his participation in the case means the board’s Republican majority will likely eventually decide Boeing’s claim that the group shouldn’t have been allowed to vote in the first place.
“Boeing continues to believe that this micro-unit is prohibited by federal law,” the company said in a May 31 tweet. “We are deeply disappointed with the result and are appealing.”
The company says the group of 178 workers who voted to unionize should have been expanded to include many or all of the 7,000 workers at the plant. A group of 3,000 North Charleston Boeing employees voted overwhelmingly against unionization last year.
A Republican-majority board in December overturned a handful of Obama era decisions, including one that made it easier for “micro-units” of employees within a larger workforce to unionize. But an NLRB regional director recently said the Boeing workers could vote to unionize as a smaller group of flight-line readiness technicians and inspectors, despite the board’s restricted approach to micro-units.
Boeing’s promise to appeal means the five-member NLRB or a three-member panel will have a chance to review that decision. Republicans will have a majority say on the decision under either scenario.
“It’s certainly possible that a reversal is in the cards, but I don’t think it’s by any means a foregone conclusion,” former NLRB chair Wilma Liebman (D) told Bloomberg Law. “There is a decades-old precedent allowing skilled trades and discrete craft workers within an overall production and maintenance unit to organize.”
Emanuel and NLRB Chairman John Ring (R) joined the board from law firms Morgan Lewis and Littler Mendelson, which represent Boeing in other labor-relations matters. The NLRB hasn’t ruled on filings in a separate Boeing case in which a local painters union attorney says Ring and Emanuel should recuse themselves to avoid a conflict of interest or at least an appearance of one.
The NLRB spokesman declined to say whether Ring has also been cleared to participate in Boeing’s South Carolina case. Morgan Lewis doesn’t represent the company in the case.
Marshall Babson, a former Democratic board member who represents businesses for Seyfarth Shaw, said he wasn’t surprised that Emanuel was cleared for the case.
“The traditional basis for recusing is if you represented a party or your law firm is representing a party in this proceeding,” Babson said. “It’s my understanding that’s not the case with regard to Mr. Emanuel and Littler.”
Ketcham’s ethics determination offers a ray of light for Emanuel, who has been dogged by conflicts-of-interest questions since joining the board last year.
NLRB Inspector General David Berry in March said Emanuel shouldn’t have participated in two important labor cases tied to Littler Mendelson. The board used one of the cases—Hy-Brand Industrial Contractors—to overturn a decision in the other case, Browning-Ferris Industries, in which Littler represented a staffing agency.
The ethical cloud effectively left in place perhaps the board’s biggest decision during the Obama administration, a ruling that made it easier to tag multiple businesses in franchise, staffing, and other contract relationships as “joint employers” of each other’s workers.
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