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Right Turn
Posted at 01:11 PM ET, 05/11/2011

The NLRB hands the Republicans a potent issue

The Fix reports:

For weeks, South Carolina Gov. Nikki Haley (R) has been working to bring more attention to a local fight between Boeing and the National Labor Relations Board. . . . . At issue is a complaint the NLRB filed against Boeing, claiming the airplane manufacturer decided to build a plant in South Carolina in retaliation for a strike in Washington state. Labor officials say this is merely an attempt to punish attempts at illegal retaliation against striking workers. Republicans say the complaint amounts to an effort to place strictures on companies who want to relocate projects away from unionized plants.

Moreover, it’s an issue that has already made its way into the presidential primary:

[Tim] Pawlenty also got huge applause for standing with Haley on the issue in last week’s debate.

South Carolina GOP chair Chad Connelly said that the NLRB fight will be “very important” in the state’s 2012 GOP presidential primary. . . .

Regardless of her motivations, Haley is a coveted endorser in the 2012 primary fight given her national prominence and the state’s critical early role in the nomination fight.

So far, she’s been coy about her preferred candidate, but it’s clear that she wants someone who will stand behind her on specific issues.

And that starts with the NRLB fight. “Tim Pawlenty did a great job stepping up,” Haley said. “I’d like to see every candidate step up [and say] what they would do about it.”

So how outrageous is the NLRB’s decision? Writing in the Wall Street Journal, Boeing’s president and chief executive Jim McNerney adds some important details:

Contrary to the NLRB’s claim, our decision to expand in South Carolina resulted from an objective analysis of the same factors we use in every site selection. We considered locations in several states but narrowed the choice to either North Charleston (where sections of the 787 are built already) or Everett, Wash., which won the initial 787 assembly line in 2003.

Our union contracts expressly permit us to locate new work at our discretion. However, we viewed Everett as an attractive option and engaged voluntarily in talks with union officials to see if we could make the business case work. . . . Despite months of effort, no agreement was reached. Union leaders couldn’t meet expectations on our key issues, and we couldn’t accept their demands that we remain neutral in all union-organizing campaigns and essentially guarantee to build every future Boeing airplane in the Puget Sound area. In October 2009, we made the Charleston selection.

Important to our case is the basic fact that no existing work is being transferred to South Carolina, and not a single union member in Washington has been adversely affected by this decision. In fact, we’ve since added more than 2,000 union jobs there, and the hiring continues. The 787 production line in Everett has a planned capacity of seven airplanes per month. The line in Charleston will build three additional airplanes to reach our 10-per-month capacity plan. Production of the new U.S. Air Force aerial refueling tanker will sustain and grow union jobs in Everett, too.

If Boeing is going anti-union it’s doing a poor job of it: “We have a sizable presence in 34 states; half are unionized and half are right-to-work. We make decisions on work placement based on business principles — not out of emotion or spite. For example, last year we added new manufacturing facilities in Illinois and Montana. One work force is union-represented, the other is not. Both decisions made business sense.”

Can the NLRB really prevent a company from exercising its right under its own collective bargaining agreement to set up a plant in a right-to-work state? In 20 years of practicing labor law that sure wasn’t my understanding of how the federal labor law works.

Over at the Heritage Foundation, Hans A. von Spakovsky and James Sherk provide a lawyerly analysis of the case. They cite relevant precedent:

In the 1969 Supreme Court case, National Labor Relations Board v. Gissel Packing Co., an employer asserted that he had the freedom of speech to make statements to employees that unionization would lead to a strike resulting in a plant shutdown. The Supreme Court said that an employer is permitted to “make a prediction as to the precise effects he believes unionization will have on his company” as long as these predictions are “demonstrably probable.” Federal law is violated, as was the case in Gissel, only when an employer (during a union recognition election) makes a statement that is no “longer a reasonable prediction based on available facts” but rather a threat of retaliatory action if the employees vote to join a union.

In the instant complaint, the NLRB has no such evidence of any threats of retaliatory action, only evidence of Boeing talking about the stark economic consequences the company faces because of the constant strikes in Washington — comments that are well within the protected First Amendment free speech rights of employers.

Then there is this:

First National Maintenance Corp. v. NLRB, in which the Supreme Court dismissed a similar unfair labor charge against a company for failing to bargain with the union over the closure of a nursing home for economic reasons. In that case, the Court found that Congress “limited the mandate or duty to bargain to matters of ‘wages, hours, and other terms and conditions of employment.’ ” The Court stated that “Congress had no expectation that the elected union representative would become an equal partner in the running of the business enterprise.” Management must be able to make decisions “essential for the running of a profitable business” and “to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice.”

The authors conclude that the NLRB’s position, if sustained, would “significantly alter that statutory scheme. It would effectively mean that existing companies with any unionized workforce could not expand in right-to-work states, at least not without serious litigation.”

The complaint will be heard by an administrative law judge and then probably by the NLRB, heavily stacked in labor’s favor at this point. If needed, Boeing will appeal to the federal appeals court. It’s hard to imagine it will be sustained. (Notice how quiet the administration has been on this one.) And frankly, this is one case the Democrats better hope they lose, that is if they want to deprive Republicans of a boffo campaign issue and keep in play in 2012 some important right-to-work states.

By  |  01:11 PM ET, 05/11/2011

Categories:  2012 campaign, law

 
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