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The NLRB Throws Down a Gaunlet

A Victory for Labor

by DAVID MACARAY

With all the bad news organized labor has received recently—and there’s been plenty of it, from attacks on the collective bargaining rights of public sector workers, to smear campaigns against school teachers, to more jobs being lost to globalization and “Dixiefication”—it came as an bracing  surprise to see the NLRB reach all the way back to the landmark 1935 National Labor Relations Act (Wagner Act) to defy the Boeing Corporation.

On April 20, in a positively stunning decision, the NLRB’s acting general counsel, Lafe Solomon, announced that Boeing’s plan to move part of its Dreamliner 787 passenger plane production from Seattle to South Carolina was illegal. 

Given today’s pro-business environment, where private enterprise expects to run the table every time it picks up a pool cue, it’s rare to see a company even receive so much as a stern warning from the feds, and rarer yet to receive a slap on the wrist.  So to have a government agency administer a sucker punch like this one—telling a company it can’t change locations—took everyone by surprise.  

Why was the move to South Carolina deemed illegal?  Because internal memos and company correspondence, along with media interviews of Boeing executives, clearly indicated that the move was being made in retaliation for Boeing’s workers going on strike.  The majority of Boeing’s hourly workforce are members of the IAM (International Association of Machinists).  

In short, Boeing brazenly announced to the world that it was moving its operation to non-unionized Dixie in response to union work stoppages.  And, as Solomon noted, the Wagner Act specifically prohibits companies from retaliating against workers who exercise their legal right to strike.  After all, what value would a statutory “right to strike” have if the workers knew in advance that the company had the legal right to retaliate by shutting down and moving?

Disappointing as the NLRB’s decision was to corporate America (and the response, predictably, has been one of horror and outrage, as if the airline manufacturing industry were being nationalized), it was, in principle at least, a fairly simple call to make—for anyone calling themselves a legal constructionist.  The law is the law.  You either enforce it or you don’t.

As labor activist and author Steve Early noted in an e-mail, Solomon’s ruling is “just a small reminder that the right to strike—which Boeing workers in Seattle have used repeatedly—isn’t worth much if your employer can permanently replace you or shift your work from your plant to a non-union [facility] in the South.”

Actually, for all the well-deserved criticism the Obama administration has gotten from the Left, the Department of Labor, led by Secretary Hilda Solis, has made some notable contributions.  For one thing, Secretary Solis followed through on her promise to hire an additional 200 NLRB field agents to better help with the enforcement of federal labor laws.  The Labor Board can’t be expected to address employer violations without an adequate number of field agents, and while an additional 200 investigators is nowhere near enough, it’s a step in the right direction.

For another, Obama appointed respected labor expert Craig Becker to the NLRB over vehement protests by anti-labor Republicans who attempted to portray the slightly left-of-center Becker as a Marxist-Leninist lunatic.  It took a recess appointment to get him on the Board, but Obama did it.  Also, the DOL succeeded in bringing criminal charges against a couple of notorious Southern California carwash owners for numerous violations, including falsification of pay records, failure to pay overtime, and racketeering.

Of course, as everyone knows, for this Boeing decision to stick, it will need a great deal of luck and some key, sympathetic supporters.  Indeed, the appeals process is already being mounted.   Going all the way back to the Reagan administration, the federal courts have been nothing if not overwhelmingly pro-business, so it’s going to be an uphill battle.

Still, at the very least, the fact that the NLRB has chosen to aggressively and publicly expose the ULP (unfair labor practice) of a high-profile company is an indication that a gauntlet has been thrown down.

DAVID MACARAY, a Los Angeles playwright, is the author of “It’s Never Been Easy:  Essays on Modern Labor”. He served 9 terms as president of AWPPW Local 672. He can be reached at dmacaray@earthlink.net