June 17, 2011 Volume 112 Number 12

NLRB sees unprecedented political interference in Boeing case

By DON McINTOSH, Associate Editor

Imagine if the Environmental Protection Agency tried to fine British Petroleum $500 million for the Gulf oil spill … and the reaction in Congress was a call to repeal the Environmental Protection Act. Or suppose Walmart faced an order of $100 million in back pay for illegally making employees work off the clock, and in response leading Senate Republicans threatened to block the president’s nominee for the Department of Labor. That’s a little like what’s happening now in the National Labor Relations Board (NLRB) case that the International Association of Machinists (IAM) filed against Boeing.

America’s basic labor union rights law, the National Labor Relations Act, says workers have the right to form unions, to bargain collectively, and to strike. Under that law, employers may not retaliate against workers for exercising those rights. But that’s what Boeing did, the IAM alleges, when the company decided to locate its second 787 Dreamliner assembly line in South Carolina instead of Washington. Company leaders made repeated statements to journalists and stock market analysts that its decision to locate in South Carolina was motivated by a desire to avoid the disruption of a strike by its unionized workers in Washington.

Boeing’s operation in South Carolina is nonunion, and unions have historically been weak in South Carolina, a so-called “right-to-work” state. The NLRB, which enforces the National Labor Relations Act, investigated IAM’s charge. It agreed with the union, and issued a formal complaint April 20 against Boeing, an action which was approved by acting general counsel Lafe Solomon, the highest-ranking official in the “prosecution” part of the NLRB. The complaint was scheduled to be heard by a federal administrative law judge June 14 in Seattle, just after this issue went to press.

But the reaction to the NLRB complaint — by business groups, the business media, and Republican members of Congress — was furious. They seemed to be outraged that a little-known federal agency enforcing a 75-year-old law about unionization could question a major company’s decision about where to produce its product. Some of the reactions:

  • Solomon is President Obama’s nominee for the permanent position of NLRB general counsel, but 10 Republican senators wrote to Solomon with a thinly veiled threat to link their approval of his nomination to his position on the Boeing case, and 19 Republican senators wrote to President Obama urging that he withdraw Solomon’s nomination because of the Boeing complaint.
  • Lamar Alexander (R-Tenn.) introduced a bill in the U.S. Senate to amend the National Labor Relations Act to make Boeing’s relocation legal. The bill now has 35 co-sponsors, all Republicans, including Senate Minority Leader Mitch McConnell (R-Kentucky) and 2008 presidential nominee John McCain (R-Ariz.) The same bill was introduced in the House May 24, and has 20 Republican co-sponsors.
  • Two Republican-led House committees demanded that Solomon turn over all NLRB documents addressing the Boeing complaint in advance of the Seattle hearing; he refused.
  • Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee, announced that his committee would hold its own hearing about the Boeing complaint in South Carolina, three days after the Seattle hearing. Issa requested that Solomon attend. He declined on the grounds his appearance could threaten the rights of the parties to a fair trial. But Issa asked Solomon June 7 to reconsider or face a subpoena compelling his attendance. On June 10, Solomon agreed under protest, writing: “I am not aware of any other time … that a general counsel has been compelled to testify at a Congressional hearing about the merits of a pending case.”

“I wouldn’t be surprised if these attacks ultimately intimidate acting general counsel Solomon, who’s not a politician but a career civil servant,” said James Brudney, Ohio State University law professor and former chief counsel of the Senate Labor subcommittee. “The fact that they have not done so thus far is a tribute, perhaps to his courage, but certainly to his dedication to the rule of law.”

Brudney spoke on a telephone panel discussion that was convened by the American Constitution Society for Law and Policy to draw attention to extreme interference by members of Congress in a pending legal case. The group is a network of attorneys and law students that promotes the U.S. Constitution as a protector of individual rights and genuine equality.

NLRB proceedings resemble court actions, Brudney said. “When agencies are acting similarly to judges, they should be insulated from extreme political pressures that might influence or appear to influence their decision and undermine our basic notions of fairness.”

“There’s nothing extraordinary about this case as far as the legal principles,” said co-panelist Catherine Fisk, a law professor at University of California Irvine. “What’s unusual about the case is the fact that Boeing is a very large company and the decision to build the facility involves a massive capital expenditure.”

“Since the early 1960s it’s been clear that National Labor Relations Act makes it illegal for a company to transfer work, to close one facility and open another, or to locate new production from one facility to another in retaliation for employees having exercised their statutory right to unionize and bargain collectively or to strike,” Fisk said.

But it’s legal for a company to move for other reasons, including because of labor costs; so it will be the task of the administrative law judge to decide whether hostility to the right to strike was the predominant motive, Fisk said.

It will take time for the judge in the Boeing case to make a decision, Fisk and Brudney said. Then either side could appeal that to the five-member National Labor Relations Board in Washington, D.C. It could easily be 2012 before they decide the case. The case could then go to the U.S. Court of Appeals in 2013 and even on to the U.S. Supreme Court.

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