Administrative law

By Ann C. Hodges, Professor of Law, University of Richmond School of Law

Critics of the National Labor Relations Board’s (NLRB) complaint against Boeing Corporation have claimed that the complaint is unprecedented, motivated by political rather than legal considerations.  Members of Congress have written articles, held hearings, and threatened elimination of the agency.  While the facts remain to be fully developed in a hearing which began on June 14, the essence of the complaint is that Boeing decided to produce some of its Dreamliner jets in South Carolina because of the union’s prior strikes at its plant in Washington. 

The case raises an interesting legal issue, but it is certainly not so novel as to suggest a purely political decision.  The National Labor Relations Act (NLRA) expressly protects the employees’ right to strike and to join together in a union to improve their wages and working conditions.   Interference with those rights using threats, coercion or discrimination is prohibited.  The NLRB is tasked with enforcing the law where investigation reveals that a violation may have occurred.  Public statements from company officials indicated that the decision to locate production in South Carolina and seek outside suppliers for some parts was based on previous strikes by the unionized employees in Washington.  According to the NLRB’s complaint, these statements also suggested that the unionized employees stood to lose future work because of their frequent strikes.

The NLRB regularly issues complaints against employers who threaten employees with loss of work or discriminate against employees because of their union activity, usually without such public evidence of motive.  In numerous prior cases this discrimination has taken the form of discharge, discipline, contracting out the employees’ work, eliminating a department, relocating operations, or even closing a plant.  So long as the motive is to discourage protected union activity, the conduct is unlawful.  And that is the allegation here. 

Where employers have legitimate business reasons for discriminating against strikers or employees who have engaged in protected union activity, the NLRB may find the action lawful despite its adverse impact on the employees and the potential for chilling their future exercise of legal rights.  The interesting legal question here is whether the Board or the courts will find Boeing’s desire for a dual source to avoid the impact of the strike to be a lawful and legitimate business reason, where it has expressly tied the decision to its employees protected activity.

Large, crafty American corporations helped cause the nation’s Great Recession, and then many of them got bailed out by taxpayers. Very few of those corporations – think Goldman Sachs – have been held accountable for their actions. So maybe it’s not surprising that corporations and their lobbyists are quickly back to their tired machinations of doing everything to solidify the status quo, which means free reign to make gobs of money by bilking consumers and hobbling the rights workers while remaining above the law.

Take for example the hue-and-cry emanating from rightwing lawmakers and pundits over the National Labor Relations Board’s (NLRB) recent decision to lodge a complaint against Boeing for appearing to retaliate against workers at its Washington State plant once they announced plans to strike. Part of the complaint accuses of Boeing of establishing a nonunion production outfit in South Carolina to retaliate against the unionized workers in Washington State.

The NLRB is an independent agency charged with enforcing the National Labor Relations Act (NLRA), which makes it illegal for corporations to retaliate or discriminate against workers who engage in lawful activity, such as striking. A trial before an Administration Law Judge is set for June. But the rightwing and its enablers in Congress have launched a tirade against the NLRB, including threats to demolish the agency.

American Rights at Work Executive Director Kimberly Freeman Brown notes in this post for The Hill’s Congress Blog, “Regardless of the facts, GOP legislators are using the case as an excuse to advance their ongoing attack on the NLRB. Politicians like Rep. Phil Roe (R-Tenn.), Rep. Tom Price (R-Ga.), and Sen. Lindsey Graham (R-S.C.) have made repeated attempts to defund and dismantle the agency, and this is just the latest opportunity to do the work of their corporate donors by tearing down protections for workers.”

The Boeing case is yet another effort of rightwing policymakers to trample obstacles in the way of corporations from expanding their power at the expense of consumers and workers. As Rolling Stone’s Matt Taibbi notes in a recent article, “The People vs. Goldman Sachs,” a comprehensive report from Sen. Carl Levin and a subcommittee lays out the brutal facts: Goldman Sachs stole “more money than most people can rationally conceive of, from their own customers,” and then went before the Senate “took an oath before Congress, and lied about it.”

In a recent editorial, The New York Times said the NLRB’s action against Boeing “is a welcome effort to defend workers’ rights to collective bargaining.”

“At the very least,” the editorial concluded, “this case will shed light on the business strategies employed by a powerful company to resist unionization.”