For more than 75 years, the National Labor Relations Board has had the power to protect employees in their right to organize by ordering employers to return operations that the employer moved in retaliation for the exercise of protected rights. This power has always been recognized and has been exercised by Republican appointees, including, in 1987, those of President Reagan, who ordered an employer that refused to bargain in good faith to return work to a warehouse operation it had closed (Century Air Freight).
Yet the Chamber of Commerce and the House Republican leadership want people to think that the NLRB affirming this same anti-retaliatory principle in the Boeing case is something extraordinary, that it is a new assertion of government power by the Obama administration, which is bending over to do a favor for its union friends. Accordingly, House Republicans are advancing legislation that would overturn long-established labor law and prevent the NLRB from “ordering any employer to close, relocate or transfer employment under any circumstances.”
The media have failed to point out that these assertions of newly exercised, politicized authority are objectively false, and instead, have given full expression to the campaign of inaccuracies and misstatements. Even Steven Greenhouse in the New York Times falls into this trap, though he does point out that moving work to retaliate against the exercise of protected rights is illegal.
To get to the actual facts of this matter, I am printing the section of the NLRB General Counsel’s report from 2006 that deals with the NLRB’s power to restore the status quo when work has been relocated in violation of the National Labor Relations Act. The author was Arthur F. Rosenfeld, who served as General Counsel from June 2001 to Jan. 2006, and who was not just a George W. Bush appointee, but had served as counsel to Senate Republicans on the committee with jurisdiction over the NLRA and the NLRB.
Mr. Rosenfeld stated: “We typically seek an order restoring the prior operation and prohibiting similar conduct in the future. Such relief is necessary because, when these actions unlawfully eliminate all or large portions of an operation and the jobs of unit employees, they undermine the status of an incumbent union or one seeking recognition.”
So is Obama’s NLRB overreaching and creating some new extraordinary power for the government? Clearly not. Even under Republican administrations, ordering an employer to move work back after it had been relocated illegally was “typical.”
Here is the relevant section of Rosenfeld’s 2006 GC Memorandum:
3. Subcontracting or other change to avoid bargaining obligation
These cases involve an employer’s implementation of a major entrepreneurial-type decision that adversely affects unit employees: for example, subcontracting or relocating entire plants, departments, or product lines. Such changes can be discriminatorily motivated, i.e., designed either to interfere with a union organizational campaign or to escape from an incumbent union, and thus violative of Section 8(a)(3).7 The change can also be independently violative of Section 8(a)(5) if undertaken without satisfying an employer’s bargaining obligation to an incumbent union. We typically seek an order restoring the prior operation and prohibiting similar conduct in the future. Such relief is necessary because, when these actions unlawfully eliminate all or large portions of an operation and the jobs of unit employees, they undermine the status of an incumbent union or one seeking recognition. Moreover, an interim restoration order preserves the Board’s ability to issue (and courts to enforce) a final order restoring operations without it being too burdensome for the respondent because of the passage of time or the prior alienation of the old facility or equipment.Based upon these considerations, courts have granted interim restoration of operations in these situations. See, e.g., Maram v. Universidad Interamericana de Puerto Rico, Inc., 722 F.2d 953 (1st Cir. 1983); Aguayo v. Quadrtech Corporation, 129 F. Supp.2d 1273 (C.D. Ca. 2000). In certain cases the courts have granted a less drastic interim remedy of preventing the sale or alienation of a facility pending a Board decision. See, e.g., Hirsch v. Dorsey Trailers, Inc., 147 F.3d 243 (3d Cir. 1998). See also Dunbar v. Carrier Corp., 66 F. Supp.2d 346 (N.D.N.Y.), stay denied 66 F. Supp.2d 355 (N.D.N.Y. 1999).
The single case authorized by the Board in this category during the reporting period involved the discriminatory relocation of unit work. The case was successfully resolved with a Board settlement.