Execution First … Trial Later: Congress and the National Labor Relations Board

Legal procedure professors who taught current members of Congress must be pulling their hair out. Lately their former students sound more like the Queen of Hearts with their threats to execute the National Labor Relations Board (NLRB) by defunding it and taking away the power of the NLRB's General Counsel to enforce the National Labor Relations Act (NLRA).

Wild claims – without any basis in fact – are being made that the NLRB has already made a decision that Boeing violated the law and that the NLRB is going on a rampage against “right to work” states. If you listened to Congress' version of events, you would think that the NLRB has become the major threat to the economic life of this country. Think a fire-breathing Godzilla administrative agency smashing businesses with its mighty tail.

Of course, none of this is true. In fact, it is just Plane Nonsense.

Meanwhile, Congress does nothing to discipline the banks and speculators who actually did destroy millions of jobs, savings, lives, and hope for the future. These real villains are not only free but are again being rewarded for risky behavior.

None of this is true, and the facts could have been easily learned. Not only has the NLRB posted the complaint on its website, it has also posted memoranda summarizing the facts of the case and information about the investigation and trial procedure. Despite this, Congressional representatives are demanding administrative capital punishment for the NLRB's “crime” of doing its job.

Just the Facts

The Boeing case began when the Machinists Union in the State of Washington filed a charge with the NLRB alleging that Boeing had retaliated against its Washington employees for past strikes by moving work to South Carolina. The right to strike is protected by law, and an employer's retaliating against employees for exercising their legal rights violates the NLRA, the law the NLRB enforces.

After the charge was filed, the NLRB's regional office in Washington investigated the case. That investigation involved taking sworn affidavits from witnesses and collecting other relevant evidence. Boeing had the right to present its evidence during the investigation. The evidence included public statements by Boeing officials – and reported in the Seattle Post Intelligencer Aerospace News and the Seattle Times – that they were angry that Boeing employees in Washington had gone on strike in the past. Boeing officials also said that they would, therefore, move work that was originally going to be done in Washington to a plant in South Carolina. This evidence, if credited by the judge at trial, supports a finding that Boeing violated § 8(a)(1) and (3) of the NLRA.

There is nothing in the case about one state being a right to work state or not.

That red herring was created by Boeing in its aggressive campaign against the NLRB. So far Boeing's cynical strategy appears to be working. It has gotten congressional representatives to repeat the unsupported claims made by Boeing and to hold hearings and draft legislation that would hamstring the NLRB in doing its job. They have also made personal attacks on the NLRB's Acting General Counsel, Lafe Solomon, for just doing his job.

Congress has not always been a model of legislative deliberation, to say the least, but this Boeing witch hunt will have to go down in history as one of its most cynical and dishonorable escapades.

Among the less than accurate statements and actions have been outlandish claims that “right to work laws” are critically important to the fiscal well being of states that have them. That is a huge claim with little evidence or logic to support it.

First, “right to work” laws do not protect the right to work. In reality, employees in “right to work” states are employed “at will.” That means that employers may fire their employees for a good reason, a bad reason, or no reason at all. Ironically, it is union collective bargaining agreements that do far more to give employees a real right to work, because collective bargaining agreements generally require employers to have cause to fire an employee.

Second, all “right to work” laws do is forbid including in a collective bargaining agreement a requirement that employees covered by that agreement pay dues to the union that represents them. In other words, “right to work” laws allow workers to be free riders, benefitting from the protections in the collective bargaining agreement, while not paying the costs of negotiating that agreement. Eventually, the union will be so weakened that it can no longer provide effective representation.

Third, the claim for why these laws provide a “right to work” is that employers can pay less in these states and that lower pay will attract employers to the state. This theory ignores the many other factors that attract employers, including the level of education and training of a state’s workforce and the amenities a location offers.

The theory is correct, though, that wages will be lower in “right to work” states. The Bureau of Labor Statistics' most recent data shows national mean hourly earnings to average $21.29. Regions that are more highly unionized have average hourly earnings of $24.11 (Pacific), $24.28 (Middle Atlantic), and $24.55 (New England), while those regions that are mainly composed of “right to work” states have below average hourly earnings – $18.05 (East South Central) and $19.48 (West South Central).

The NLRB's Legal Obligations

Congress created the National Labor Relations Board and charged it with enforcing the National Labor Relations Act. The NLRB's General Counsel's role is similar to that of a District Attorney. When the investigation shows that the law has been violated, a DA normally seeks an indictment and tries to bargain a plea. The NLRB's General Counsel has discretion to decide not to issue a complaint even when there is evidence that a violation occurred. In the Boeing case, the NLRB investigation found evidence that Boeing had essentially confessed to the violation. Refusing to issue a complaint with this sort of evidence is like a DA that refuses to indict when the investigation shows a crime has been committed. The DA may have the legal right not to pursue criminal charges, but would likely be attacked for being soft on crime.

A respondent in Boeing's situation normally would have worked out a settlement, but settlement was something Boeing refused to consider. Indeed, the overwhelming majority of NLRB cases settle. Boeing, however, has pursued a cynical strategy of riling members of Congress, and sadly that strategy has so far been successful.

As a result, the only option appears to be to go to trial. Although settlements are a good way to resolve legal disputes, sometimes you just have to go to trial.

As with all trials, the purpose of NLRB trials is to sort out facts and let the parties prove or dispute the complaint's allegations. The case is now scheduled to be heard on June 14 before an Administrative Law Judge. The NLRB has the burden of proving the complaint allegations. The judge will listen to the testimony, make credibility findings, and apply the law to the facts. That decision will be in writing and can be appealed to the five-member Board in Washington, DC, and from there to a federal court of appeals.

What will be different – and may even become the norm – is that companies with huge bank accounts will find that a mendacious attack on the honesty of a government agency and public servants allows the company to evade its legal obligations and injure the agency and our faith in government.