Commentary | Unions and Labor Standards

Has anyone heard of due process?

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The National Labor Relations Board (NLRB) recently filed a complaint against the Boeing Corporation based on evidence that Boeing moved work away from Washington State as punishment for the employees having exercised their legally protected right to strike. Politicians who either don’t know the law or don’t care about it have condemned the NLRB, including Mitt Romney and his fellow Republican candidates for President. They want to rile up the business community by painting the decision as the President’s, even though it was made by a career government employee on behalf of an independent agency outside the President’s control.

Various senators and congressmen are now trying to influence the Labor Board’s ultimate decision, which is not a policy decision but an adjudication. The law and policy were provided by Congress in 1935 when the National Labor Relations Act was passed by Congress and signed by Franklin Roosevelt. The NLRB’s only responsibility is to apply the law to the facts of this case, an undertaking that should be free from political influence or intimidation. And yet a growing number of legislators are threatening to slash the NLRB’s budget and punish its General Counsel if the case proceeds in the manner proscribed by statute.

This attack on the NLRB is political and self-interested. After all, the NLRB’s administrative law judge has not even held a trial yet. The only decision that has been made – and all legal scholars agree it was defensible – was by the General Counsel in response to a charge brought by the International Association of Machinists that there was good cause to believe that Boeing had violated the law. In other words, the union provided enough evidence of Boeing’s motivation that a trial in the matter is justified.

The members of the NLRB will not even review the case unless and until the trial judge’s decision is appealed. So all the howling about the NLRB’s assault on capitalism and free enterprise is premature, to say the least.

Sadly, the political pressure is having an effect already. Even Democrats are racing to say that, of course, business has the right to relocate anywhere it wants to, even to a so-called right-to-work state like South Carolina. And they’re right, up to a point.

Businesses are free to relocate to other states or  countries. South Carolina has been a stop-over for businesses relocating from the north for decades; many companies, from textile manufacturers to furniture companies and paper processors, often go on to countries like China after absorbing the tax breaks and other subsidies South Carolina offers them. Unions are rare in South Carolina, but independent unions in China are actually illegal, and wages are even lower in Chinese textile plants than in Gaston or Winnsboro.

But the motive for a relocation matters. Moving for cheaper labor is legal. But closing a plant in Los Angeles and moving to North Dakota to avoid hiring Hispanics or African Americans is not legal. Shutting a factory in New York and moving it to South Carolina to avoid hiring Jews or Muslims would not be legal, either. One can imagine other illegal motivations, but the point is that we reasonably limit relocations when they violate laws. In Boeing’s case, the bad motive that has been alleged is a desire to punish the machinist union members for exercising their legally protected right to strike. E-mail traffic among Boeing managers is alleged to show that it was due to the desire to punish the Washington State Boeing workers for having engaged in lawful strikes that airline production work was transferred. Congress has prohibited job decisions based explicitly on unlawful animus, whether it’s hostility to blacks, women, Mormons, Muslims, Jews or unions. Instead of browbeating the neutral prosecutor and judge, why not let them do their jobs and apply the law to the facts? We used to call that due process. 

Ross Eisenbrey is a lawyer and former commissioner of the U.S. Occupational Safety and Health Review Committee. He has been vice president of the Economic Policy Institute since 2003.


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