The National Labor Relations Board (“NLRB”; “the Board”) dropped its retaliation lawsuit against Boeing at the urging of the International Association of Machinists and Aerospace Workers (“Machinists”) after it signed a contract with Boeing on Dec. 9, 2011.  The NLRB brought the case in April 2011, after Boeing moved a production line from Washington state to a non-union shop in South Carolina in retaliation against workers for staging a strike in 2008.

The NLRB decision to file a complaint drew controversy from the outset.  The NLRB found that Boeing’s motives were retaliatory after Boeing executives admitted that the Machinists’s history of striking (workers in Washington state have staged five strikes since 1977) was an “overriding factor” in deciding to open the South Carolina plant. The National Labor Relations Act (“the Act”) forbids employers from retaliating against and intimidating unions from protected activities such as engaging in strikes.  However, the Act also allows employers to make decisions on hiring and building new facilities so long as the decision is not unlawful.  Since the NLRB issued the complaint, the House, in response, passed the Protecting Jobs from Government Interference Act, which would strip the Board of its authority to order a shutdown of corporate operations, even if an employer violates labor law.  The bill is now awaiting a Senate vote.  Additionally, Congressional Republicans have threatened to block President Obama’s nominations to the Board.  The five-member board currently has two openings, and another seat will open later this month.

In the end, NLRB v. Boeing is a victory for unions and serves as a testament to the effectiveness of collective bargaining.  Workers successfully sought to enforce their rights through available legal means.  The NLRB complaint armed the Machinists with a huge bargaining chip at the negotiation table, and as a result, the parties were able to mutually agree to a contract and settle the case.  The parties achieved all this without the need for a strike, litigation, or third-party intervention, which is the ultimate goal of collective bargaining.

Based on many recent Civil Service decisions and, even more poignantly, the courts’ reaction to those decisions, many of us concluded that challenging a bypass promotional case was about as promising as hitting a trifecta at your local race track. ^[1] That perception, however, may no longer be accurate.  A 60 page decision by Commissioner Paul Stein in September in the case of Smyth v. City of Quincy, not only upheld a bypass appeal for the position of Quincy Fire Chief, but also removed the appointee from the permanent position and, in very specific terms, ordered the city how to go about properly selecting the next chief from the three highest scores on the certification.  When the city appealed to Superior Court to enjoin the Commission’s decision from taking effect, the judge, in a decision issued on November 21, refused to intervene on the grounds that the city was likely to lose its appeal.

By way of background, civil service law, all contained in Mass. General Laws Chapter 31, compels that promotions be made from among the three highest scoring applicants on a certification (a list of candidates with passing scores ranked numerically by the state Human Resources Division [HRD]).  If the appointing authority, in the case of Quincy Fire, the mayor, selects a candidate other than one with the highest score, s/he must supply the reasons for doing so.  The higher scoring candidates may then lodge bypass appeals with the Civil Service Commission.

The Civil Service decision concluded that Quincy’s mayor was predisposed to appointing a politically well-placed candidate and that his proffered rationale was a smokescreen to obfuscate his predisposition.  The case contains an excellent primer, with abundant citations, on what an appellant needs to show in order to prevail in a bypass appeal.

The remedy is particularly noteworthy.  Ordering that the permanent appointment be rescinded is rare but not unique.  Prescribing how the city must make the next appointment in order to remove any bias and instill the process with integrity is virtually unprecedented.  Commissioner Stein has set out a blueprint for what appointing authorities must do to insulate themselves from bypass challenges, and a road map for future appellants to follow in asserting such challenges.  The specific requirements (quoted directly from the decision) are:

(a) candidate interviews must be conducted by a panel to be selected and arranged by an independent outside individual or firm that has experience in the review and selection of public safety and/or senior public sector personnel in Massachusetts;

(b) neither the outside individual or firm, nor any member of the interview panel shall have any present or prior contractual, employment or familial relationship to the Mayor of Quincy or to any of the candidates;

(c) the candidates will be provided, also reasonably in advance of the interview, a description of the criteria by which their credentials and their interview performance will be evaluated;

(d) the evaluation criteria shall be established by the independent individual or firm selected to arrange the interviews, and shall contain such procedures and criteria that the outside individual or firm deems appropriate in consideration of a candidate for Fire Chief, provided that Quincy may contribute its input to the independent individual or firm as to any aspect of the interview process, including evaluation criteria, as it deems appropriate, and further provided that any communications between Quincy and the independent individual or firm shall be disclosed to each of the candidates;

(e) the interview panel shall render a written report of the interviews which shall be made available to each of the candidates and to the public; and

(f) the written report shall include a specific rating of each candidate?s performance in each component or question during the interview, an overall ranking of the candidates, and a description of any unique positive and/or negative qualities or experience noted about any of the candidates.

Attorney Betsy Ehrenberg is to be highly commended for her excellent work in not only attaining this favorable precedent but also in successfully defending it, at least through this initial phase, in the courts.

It is also hoped that the specificity of the remedy will send a message to the public safety community: the days of perverting what is supposed to be a merit-based promotional system based on who someone is rather than what the person knows and has done are over.