Labor Rights, Under Republican Attack

James J. Brudney in The New York Times, October 13, 2011

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By MARK BARENBERG, JAMES BRUDNEY and KARL KLARE

In the past month, the National Labor Relations Board has come under furious attack from Republicans in Congress, and decades-old workers’ rights are at risk. Backed by a well-financed lobbying and publicity offensive, Republicans are using a recent labor-law complaint against Boeing to achieve a radical goal that goes far beyond the legal issues in the case: unraveling workers’ rights that have been part of the fabric of our social contract since the Great Depression.

In April, the labor board’s acting general counsel filed a complaint against Boeing, alleging that the company retaliated against unionized workers by opening a nonunion aircraft facility in South Carolina, instead of using a facility in its home state of Washington. Citing multiple public statements by Boeing executives, the general counsel contended that the company decided to locate the plant in South Carolina in significant part to punish its Washington workers for having exercised their right to strike, enshrined in the National Labor Relations Act of 1935.

Boeing has an opportunity at trial and in administrative and court appeals to disprove these allegations. It also may avoid the general counsel’s proposed remedy — an order restoring the aircraft production in question to Washington — if it can show that the order would be unduly burdensome.

But for Republicans, the legal process is beside the point. Representative Darrell Issa of California has disparaged the labor board as a “rogue agency,” and the presidential candidate Mitt Romney has called the general counsel’s complaint a “job killer” — even though the outcome of the case will determine only the location, not the number, of jobs. Last month, in an ambush against a federal agency’s powers in a pending case, the Republican-controlled House, voting almost entirely along party lines, approved a bill that would eliminate one of the paramount federal rights afforded workers for decades by prohibiting the labor board from ever ordering any employer to restore jobs illegally outsourced or relocated.

The attack against the Boeing complaint rests on three myths.

Myth No. 1: The general counsel has invoked an unprecedented legal rule. Apart from its unusually large scale (the location of an estimated 1,800 jobs is at stake), the Boeing case involves nothing legally new. The general counsel’s complaint is based on principles accepted by the labor board and the courts over many decades. In 1967, the future Supreme Court Chief Justice Warren Burger (then a federal appellate judge) wrote a decision holding that an employer may not transfer work to punish employees for exercising National Labor Relations Act rights (like the right to strike). Likewise, the labor board has long had the authority to order restoration of work relocated as part of an unfair labor practice, and the appellate courts have approved such orders. In the absence of work restoration, any alternative remedy available to the labor board — like an order that Boeing post a bulletin-board notice promising to obey the law from now on — would be cosmetic.

Myth No. 2: The Boeing complaint means that the government can dictate the location of businesses. Everyone agrees that a company may legally locate its production anywhere it wishes and for any reason — except retaliatory ones. Imagine if Boeing had deliberately located a new plant in an area with a predominantly white labor force and then publicly stated that it did so because it was tired of listening to discrimination complaints made by African-American employees at its home plant. If the general counsel’s allegations are true, Boeing did something legally indistinguishable — unless labor rights no longer count as “real” rights.

Myth No. 3: The general counsel has discretion to drop the case in the name of economic policy. The general counsel is not a policy maker authorized to base decisions on what is good for employment in a particular region of the country. His discretion is confined to enforcing the policy already chosen by Congress in the National Labor Relations Act. If his investigation yields reasonable cause to believe that a violation occurred, his only legally proper course is to bring a case to be decided through the ordinary process. If the Internal Revenue Service determines that a South Carolina employer owes millions in unpaid taxes, should it drop the case if it believes doing so would help the local economy?

The Boeing case is not about jobs. Selecting one place rather than another to build planes creates no additional jobs. The general counsel did his job as the law requires. It would be tragic if his dutiful efforts provided an occasion for Republicans to extinguish decades-old workers’ rights.

Mark Barenberg, James Brudney and Karl Klare are professors of labor law at Columbia, Fordham and Northeastern University, respectively.