Last week, the National Labor Relations Board’s general counsel — acting at the behest of the International Association of Machinists and Aerospace Workers union — filed a complaint against Boeing. According to the complaint, the company decided to locate a new production line for the Dreamliner 787 airplane in South Carolina (a right-to-work state) instead of Washington (a state in which unions are powerful and strikes have cost Boeing billions of dollars) out of anti-union bias. Should the general counsel convince the board that Boeing violated the law, the company could be forced to operate the line in Washington.
Thus far, the conservative response has held that it is ridiculous for the federal government to tell a business where to expand its operations. It is ridiculous. It’s also unprecedented. But thanks to the fact that the National Labor Relations Act (NLRA) is poorly written, as well as the fact that the board and the courts haven’t made the law much clearer via interpretation, this move actually has a chance of holding up.
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Under the NLRA, the general counsel acts as a prosecutor, the board itself acts as a panel of judges, and federal courts review the board’s decisions on appeal. According to the law, it is an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise” of their right to participate in protected union activities, which include striking. It is also an unfair labor practice if a business discriminates “in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”
It’s no secret that these words are so vague as to be nearly meaningless. According to the Supreme Court, the act “did not undertake the impossible task of specifying in precise and unmistakable language each incident that would constitute an unfair labor practice” — which is to say, it failed to offer companies a way to predict which of their actions would later be considered illegal, leaving that decision to people who are appointed by the president (who is often elected with great help from unions and anti-union businesses). It should not surprise anyone that, given the highly contentious nature of labor disputes — unions and corporations go exactly as far as they think they can get away with — this hasn’t worked out so well. In the years since the NLRA’s enactment, the board and the courts have been making it up as they go along.
The most important thing that Boeing has going for it is that the case comes completely out of left field — the board has simply never done anything like this before, and it’s hard to find other cases that are even remotely similar. But by the same token, does the counsel’s argument clearly contradict any precedent, or the murky words of the law itself? Unfortunately, no.
Under the NLRA as it’s been interpreted, the first step for the general counsel will be to prove that the company’s actions interfered with or discouraged union activities in some way. Boeing points out that the expansion into South Carolina didn’t actually cost the Washington plant jobs — in fact, employment at the unionized plant has grown in recent years. However, the decision not to put the production line in Puget Sound, Wash., certainly does mean that the plant will have fewer jobs than it would otherwise. It would seem odd for decisions about brand-new capacity to be treated the same as decisions to destroy existing capacity or fire workers, but that issue has never been hashed out before the board. It’s also unclear whether an employer is forbidden to “discriminate” against unionized plants, as opposed to individual workers who’ve engaged in protected activities.
The next step will be to prove that Boeing acted out of “anti-union animus,” or to demonstrate that the company’s behavior was so inherently destructive of workers’ protected rights that no separate inquiry into the company’s motive is necessary. (For example, according to precedent, if a company grants workers extra seniority for working during a strike, the discrimination is so obvious that there’s no need to evaluate evidence of the company’s motive.) The general counsel’s complaint claims that Boeing’s behavior is bad enough in itself to demonstrate motive, and therefore offers no argument for “anti-union animus,” but it’s likely that arguments for both will be presented eventually — especially because Boeing’s collective-bargaining agreement with the union gives it the right to place additional capacity wherever it wants, and because the company nonetheless offered to put the new capacity in Washington in exchange for a more favorable union contract.
Regarding motive, the most important facts are not in dispute: The union’s history of striking was a factor in Boeing’s decision to locate the new line elsewhere, and company officials made several public statements to that effect. The company asserts that it is legal to consider past strikes in business decisions of this kind. If that’s true, these statements are protected by the First Amendment. If that’s not true, the statements amount to a confession, and perhaps an illegal threat that the company will deny work to employees who strike. The problem, once again, is the lack of precedent.
It seems to me that the majority of labor laws operate under the false assumption that businesses exist to provide employment. Only in the misguided and ill-informed minds of a liberal could it not be obvious that a company has every right to consider current and future costs when considering changes in operation.
A company that "provide[s] more and better job opportunities at nonunion plants than at organized plants" is making a trade off in regards to costs. This is how all business enterprises operates.
To use a Liberal formulation, the NLRB is an artifact of a time and a place that no longer exist (in fact, it is arguable whether the board was ever necessary). The elimination of this unnecessary and counter-productive entity would be a step in the right direction to correcting our economy.
O What a tangled web we weave, when first we practice to deceive.....
Boeing played Unions and Congress beautifully.
"Farcing", make that "forcing" If you wish, the re-bidding on the project which the initially lost. EADS read the writing on the wall and did not waste time re-bidding. All so Boeing could build in the heavy union town/state.
Genius, Boeing! Bid high, then eliminating higher labor costs - increase profit that much more!
This is the problem with congress not making laws just as the author said. Giving raw power to boards and other unelected bodies is huge mistake in a Republic. Also the whole idea of this board is weird. Any decision by the company except for total slavery to the Union could be construed as illegal. Big problem.
I remember one friend from New Jersey who moved to Florida and endlessly complained about this right to work state. Constantly talked about the better wages, benefits, days off, feel of the grass (ok just kidding on the last one) that unions gave their employees. I asked him if NJ is paradise and Florida hell why in the heck did he move. The companies he worked for went out of business...naturally.
This is one of many fruits our society bears when Congress thoroughly delegates its authority to unaccountable administrators.
"Labor Law on the Fly" is a phenomenon evidently not limited to heavy industry, as witnessed by Judge Susan Nelson's opinion that the ruse of "de-certification" of a players' union demands that, for the first time in our nation's history, a judge would enjoin one party to a collective bargaining dispute.
And 89 pages of drivel, when a mere five to ten would suffice, helps not at all to bolster her bidding for the "vulnerable" millionaire athletes.
She then warned yesterday that, if "NFL business" does not resume post-haste, replete with free-agent signings and trades of active players, they can "pay the consequences".
Of course, the actions of the "non-existent" union post de-certification -- acting exactly in concert with how it always operated before-hand, poses no detriment to the players' legal position.
At least she did not order Jerry Jones to relocate from Dallas, or the Rooney Family out of Pittsburgh!
To Geoph,
Your reference to the contract to build Air Force refueling planes at Boeing instead of EADS, and then moving to Charleston to save labor cost is a bit flawed. The assemble plant in SC is going to build airliners not military planes.
As to Boeing wishing to have a plant where the work force likes their jobs and doesn't spend all it's time whining to the shop steward makes sense to me. As does not depending on the French for vital military assets.
Ever since I took Labor Law when I was in law school in the mid-70s, I have regarded the NLRA as arguably the worst piece of special interest legislation ever enacted. If it had not been for FDR's court packing threat after the 1936 elections, the Supreme Court would have almost certainly struck down the NLRA on the same grounds it had invalidated other interventionist bits of New Deal legislation. Too bad that Chief Justice Hughes went wobbly and decided to give the NLRA the green light in Jones&Laughlin Steel v. NLRB.
It would be a great thing for the nation if we could repeal this monstrosity. Maybe this outrageous assertion of bureaucratic power to keep a unionized firm from investing in a state where it probably won't face union-fomented strikes and inefficiency will be enough to get repeal legislation moving.
Is there some reason, outside of expense, that Boeing can't just move the entire company to Texas or South Carolina, or some other "right-to-work" state? The advantage of Texas is that, in addition, they have no income tax. That a company would even start such a huge endeavor in a place like Washington boggles the mind. All companies of real size should leave "unionized" states to the McDonalds of the world
If Boeing decided to buy less expensive raw materials or sub-components, nobody would say a thing. It only makes since to minimize overhead.
But try to build a new plant where the cost of labor will be less damaging? Where there will be fewer stoppages of work?
Heck no! Who do you think you are? You'll stay right here, buster, where we can squeeze and manipulate you. We OWN you, not the shareholders. We demand you stay here and provide us with a standard of living, because that is why you exist.
"all things must pass," as the captcha engine suggests, and that is emphatically true of the NLRA. Samuel Gompers is long dead and the reasons for his prominence are also gone. As it stands now, labor unions have degenerated into money laundering machines that transfer money from dues-paying union members to left-wing political hacks, with a generous skim off the top for the union bosses.
Can someone tell us where in the US constitution the federal government is authorized to legislate with regard to relations between employers and employees? It seems to me that this NLRA - like Social Security, Medicare, Medicaid, etc - is illegal.
Perhaps the Democrat/Union alliance can force the construction of the plant to be moved to China. Or is that the next step - allege all overseas operations hurt the Unions?
Boeing has plants in other states already. Does moving production to another state, that isn't a RTW state, also unfairly punish the unions? Or is it just RTW states that are an issue?
What if Boeing decided it just wasn't worth being in business anymore? Is going out of business (yes, highly unlikely, as yet) also forbidden as unfair to the unions?
You're comment is factually wrong and misleading. Additionally, you are confusing two very different things.
First, while you are completely in error re: the Tanker contract, that is not the issue here. The proposed new plant in SC is to do final assembly of the 787 Wide body commerical airliner. The tanker, based on the 767, will be built on the current 767 line in Everett Washington. This is the same factory (largest building in the world by interior size) that they build the 747,767,777, and currently one line of 787. The new SC plant has absolutely 0 to do with the tanker contract. BTW, Boeing winning the tanker contract will keep thousands of people employeed and will likely add many thousands of jobs as the 767 still has a huge backlog.
Now lets address the tanker contract which you seem to think Boeing won in some sort of a "farce". The first thing you have to understand is how government contracts are sourced. The government puts out whats called and "RFP" or request for proposal. In this request for proposal the government sets forth a series of design standards and capabilities that it wants to proposed solution to meet. Companies therefore put together proposals that best meet the standards and capabilities requested. When Boeing appealed the award to EADS/Northrup it did so because the EADS proposal had capabilities and standards outside of what the government had requested. The 767 based tanker best met the requirements set forth in the RFP, but because of the previous controversy, the government took these not requested unspecified design elements into account when making their determination. So the 767 based tanker best met the requirements, but they said "oh well the EADS submission has this and this and this and isn't that great even though its not what we need".
Hence, Boeing appealed and won, because they had the plane and the price that best fit the governments needs ala the RFP. There is no farce about it. You can't say you want one thing, then award a contract based on a totally different set of requirements.
Is there any prospect that Boeing could argue improper delegation? The 'law' is horribly vague: is it constitutionally clear enough to overcome the argument that the NLRB's decisions are in fact delegated law-making power.
A quick google gave me:
How are the workers or the union in WA harmed? Although SC is a right-to-work state, there is nothing preventing them from trying to organize the workers in SC. This is just another attempt by unions (like card check) to use the government to try and force workers into their organizations where they no longer receive great value for their dues dollars.
It's likely that the workers in SC will receive good wages, benefits, etc. And state & federal agencies that protect workers today fill that need to protect against the employer exploitation of the past that were the primary reason unions were formed.
So the real motives here are to create a new tool to prevent futher erosion to union membership that has been occurring for decades.
Lee asks where in the Constitution authority to dictate the terms of the employment relationship is given. The answer is that no such authority is given. But because "progressives" back during the New Deal era (i.e., people who think that more state power is always good) came to dominate the Supreme Court, that authority was created by declaring that almost anything Congress wanted to do to control business was a "regulation of interstate commerce" and thus permissible under that clause.
If the framers of the Constitution had meant to give such authority to Congress, they would have clearly said so in Article I, Section 8. They didn't because no one thought that a proper use of federal power.
Anyone who is really interested in this should read Professor Richard Epstein's magisterial article "The Proper Scope of the Commerce Power" published in 1987 in University of Virginia Law Review.
What if Boeing decided it just wasn't worth being in business anymore? Is going out of business (yes, highly unlikely, as yet) also forbidden as unfair to the unions?
See GM and Chrysler for the answer to this question. Clearly "going out of business" was forbidden.
Certainly, there is no law against unionizing in a right to work state, there just cannot be any "closed shops".
What union bosses are painfully aware of, but won't admit, is that most people won't choose to join a union if they don't have to. The closed shop, forced membership model is the only thing keeping them in existence.
The sheer irony here is that employment in the Washington plant was increased at the same time as the decision was made to open a plant in SC.
So, not only did NO ONE LOSE A JOB, but JOBS WERE ADDED!
Not mentioned in the article, but forming the basis of the complaint that the NLRB's general counsel has dreamed up, is a statement by a mid-manager to an assembly-line worker (I THINK that was the recipient) that, "We can't afford work stoppages every three years."
So the opening of the plant in SC is claimed to be "retaliatory" for past strikes. Unreal.
Curmudgeon: it is extremely hard to win arguments in front of SCOTUS on grounds of improper delegation. During the Court's recent, short-lived near-conservatism (when Justice White was still around and Justice Thomas first arrived), a small window opened to rekindle the concept of Congress violating the very first clause of Article I: "There shall be ONE Congress ..."
Scalia had made the point in some dissents and concurrences that allowing an executive agency carte blanche to fill in every single blank of regulation -- from an organic agency-creating statute that literally did nothing but delegate -- was violative of that clause.
I'm not sure if even Scalia would be suaded today. Remember, in pure C.E. Hughes fashion, Scalia's gone basically belly-up on "substantive due process".
Too bad that we always have Supreme Court justices who think that wrong-headed decisions deserve respect after they get crusty.
