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.
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.
The cases that do exist cut both ways. The one most friendly to Boeing is a 1965 decision in which the Supreme Court said it was okay for a company to “transfer[] work from one plant to another” to “blunt the effectiveness of an anticipated strike.” Boeing isn’t even transferring work, but rather adding new work — but this analysis is presented in the context of a negotiations impasse, and it’s not clear at what point an employer may reasonably “anticipate” a strike and take measures to blunt its effectiveness. Workers at Boeing’s Washington plant struck in 1977, 1989, 1995, 2005, and 2008, so there is a pattern here, but the company was not responding to a direct threat to strike.
Also, a 1974 board decision voided a union election when an employer made (what the board took as) a “thinly veiled threat to provide more and better job opportunities at nonunion plants than at organized plants, which is the plainest kind of discriminatory conduct.” It further said that the right to strike cannot “be interfered with by deliberately withholding job opportunities at represented plants.” A threat during an election is different from the post-decision explanations that Boeing officials offered, but this language could be read to suggest that decisions about where to put new capacity can violate the NLRA. In addition, on the matter of “anticipated” strikes, the board noted in a footnote the difference between “an imminent strike” and “the possibility of a strike at some speculative future date.”
It’s difficult to predict whether the general counsel will be able to persuade the board, or whether appeals courts will uphold the board’s decision, whatever it may be. Yes, it is patently absurd to expect a company not to consider labor laws and unionization rates when deciding which state to put a new production line in, and the general counsel is asking the board to go well beyond its existing precedent. But the law protects the right of employees to engage in union activities, including striking, and forbids employers to retaliate in certain ways — ways that have been defined on a case-by-case basis via “interpretation” of a near-meaningless law.
For the record, it’s not just the Left that engages in this ridiculousness; whenever a new party takes the White House and the president appoints a few NLRB members, the absurdity just changes direction. In 2005, when Republican appointees controlled the board, it ruled — in glaring contrast with precedent — that in the wake of a strike, a company could lock out employees who had participated in the strike while allowing employees who had broken the strike to work, a clear case of discrimination based on protected union activity. (Fortunately, three Bush-appointed judges on the Seventh Circuit Court of Appeals reversed the decision.)
This new move by the general counsel is bad enough in itself, but the underlying legal mess is the bigger issue. It’s possible for activist judges to twist even a clearly written law to serve their ends. But this kind of malfeasance becomes almost inevitable when legislators use vague language — essentially leaving it up to presidential appointees to decide what is and isn’t legal on a case-by-case basis. In the near term, the board and the courts should do the sensible thing and end the crusade against Boeing. And in the medium term, Congress needs to fix the law so that it no longer enables such crusades. Specifically, it should lay out what kinds of business decisions are open to challenge as “unfair labor practices,” and what exactly the general counsel must prove to succeed. This would give legislators a chance not only to fill the gaps in board and court precedent, but also to reconsider the decisions these bodies pulled out of thin air over the years.
More succinctly, Congress must fulfill its responsibility to make laws, rather than simply empowering non-legislative bodies to change the rules based on their political preferences.
— Robert VerBruggen is an associate editor of National Review.