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Originally published Tuesday, August 16, 2011 at 10:00 PM

Judge urges haste in Boeing-NLRB case as board stalemate looms

Boeing Co. and the National Labor Relations Board were urged by a judge today to move quickly in a hearing over allegations of illegal retaliation against a union because the shrinking board faces a looming stalemate.

Bloomberg News

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Boeing and the National Labor Relations Board were urged by a judge to move quickly in a hearing over allegations of illegal retaliation against a union because the shrinking board faces a looming stalemate.

One NLRB member's term expires Aug. 27, and another's is up in December. With one vacancy already, that will cut the board to two members from a full complement of five. The U.S. Supreme Court ruled last year that a two-member board can't issue rulings, so if any party makes a special appeal on one of the judge's intermediate decisions, the case could be deadlocked.

"That will have consequences on this trial," Administrative Law Judge Clifford Anderson told lawyers Tuesday as the hearing reconvened in Seattle after a two-week recess. "I would very much like, from my greedy perspective, to move along."

The NLRB issued a complaint against Boeing in April, and the hearing began in June, yet opening arguments haven't started. Lawyers are still wrangling over pre-evidentiary matters such as subpoenas.

The NLRB claims that Boeing violated labor laws by deciding to build a new 787 Dreamliner plant in South Carolina, away from unions in Seattle that had gone on strike. Boeing says the move was made for financial reasons.

The judge, who has repeatedly pressed all sides to settle matters on their own, ruled Aug. 12 on a protective order that Boeing requested, after two weeks of negotiations failed to produce an agreement. The judge ordered Boeing to provide most of the documents the NLRB requested, unless it can prove on a case-by-case basis that they are proprietary.

The document exchange began Tuesday, and lawyers for the NLRB and the International Association of Machinists and Aerospace Workers complained that the box of documents contained nothing related to the Dreamliner. About 80 percent of the papers were copies of historic collective-bargaining agreements and the rest were employee newsletters, Dave Campbell, a Seattle-based attorney for the Machinists union, told the judge after a lunch recess to look through the box.

"We are reluctantly coming to the conclusion that respondent has no intention of providing decisional documents," Campbell said, adding that he may have to take the matter to district court for enforcement.

Richard Hankins, an Atlanta-based lawyer with McKenna Long & Aldridge who is working for Boeing, told the judge that Campbell's speech was "histrionic" and said the company already had produced more than 6,500 pages of documents.

Boeing's lawyers said they will need another month to provide documents subpoenaed by the NLRB.

President Obama has limited options for filling the three vacant spots on the labor board, which is charged with enforcing the National Labor Relations Act. Senate Republicans have vowed to block any future nominations to the board, so confirmation would require 60 votes in the 100-member Senate.

Obama also can't make recess appointments unless the Senate recesses. The Republican-controlled House is keeping the Democrat-controlled Senate from adjourning, for that very reason.

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