• July 19, 2011

    by Jeremy Leaming

    The National Labor Relations Board (NLRB), a federal agency charged with enforcing the National Labor Relations Act (NLRA), has been a prime target of the Right for decades, but as the agency has garnered the ability to carry out its duties, the right-wing campaign to smear the NLRB is reaching unprecedented levels.

    In an extensive piece for Politico, Joseph Williams writes that the “traditional hostility toward the board seemed to reach a new level after the NLRB last month accused the world’s largest aerospace company” of running afoul of a provision of the NLRA that bans employers from retaliating against workers who strike. In the spring the NLRB lodged a complaint against Boeing Co., for moving production of its Dreamliner jet to South Carolina from its Puget Sound, Wash., facility. The board cited public statements from Boeing that it was doing so to avoid strikes by workers. The NLRA makes it illegal for corporations to retaliate against workers who engage in lawful activity, such as striking. The complaint is now before an administrative law judge.

    The Right and Republicans in Congress have been howling over the complaint for months, dragging NLRB members before congressional hearings and tarring the board as a shill for unions. Others, however, have argued that the NLRB, hobbled during the George W. Bush administration, is finally back in business. (As Politico notes, the NLRB for two years went without enough members to form a quorum thereby effectively blocking the board’s ability to conduct its work.)

    Republican politicians are still striving to constrain the NLRB’s ability to function. Politico notes that two of the agency’s board members’ terms will soon expire, and that Republicans have indicated they will not make it easy for the administration to fill the vacancies. If that happens, the boards “activities would grind to a halt, and the backlog of more than 200 cases, including some left over from the President W. Bush era, would languish.”

    In a recent guest blog post, University of Richmond law school Professor Ann C. Hodges, explains why the criticism over the NLRB’s Boeing complaint is unfounded.

  • June 29, 2011
    Guest Post

    By Ann C. Hodges, Professor of Law, University of Richmond School of Law

    Critics of the National Labor Relations Board’s (NLRB) complaint against Boeing Corporation have claimed that the complaint is unprecedented, motivated by political rather than legal considerations.  Members of Congress have written articles, held hearings, and threatened elimination of the agency.  While the facts remain to be fully developed in a hearing which began on June 14, the essence of the complaint is that Boeing decided to produce some of its Dreamliner jets in South Carolina because of the union’s prior strikes at its plant in Washington. 

    The case raises an interesting legal issue, but it is certainly not so novel as to suggest a purely political decision.  The National Labor Relations Act (NLRA) expressly protects the employees’ right to strike and to join together in a union to improve their wages and working conditions.   Interference with those rights using threats, coercion or discrimination is prohibited.  The NLRB is tasked with enforcing the law where investigation reveals that a violation may have occurred.  Public statements from company officials indicated that the decision to locate production in South Carolina and seek outside suppliers for some parts was based on previous strikes by the unionized employees in Washington.  According to the NLRB’s complaint, these statements also suggested that the unionized employees stood to lose future work because of their frequent strikes.

    The NLRB regularly issues complaints against employers who threaten employees with loss of work or discriminate against employees because of their union activity, usually without such public evidence of motive.  In numerous prior cases this discrimination has taken the form of discharge, discipline, contracting out the employees’ work, eliminating a department, relocating operations, or even closing a plant.  So long as the motive is to discourage protected union activity, the conduct is unlawful.  And that is the allegation here. 

    Where employers have legitimate business reasons for discriminating against strikers or employees who have engaged in protected union activity, the NLRB may find the action lawful despite its adverse impact on the employees and the potential for chilling their future exercise of legal rights.  The interesting legal question here is whether the Board or the courts will find Boeing’s desire for a dual source to avoid the impact of the strike to be a lawful and legitimate business reason, where it has expressly tied the decision to its employees protected activity.

  • June 24, 2011
    Guest Post

    By Ellen Dannin. Professor Dannin is the Fannie Weiss Faculty Scholar and Professor of Law at Penn State Dickinson School of Law; and a former NLRB attorney. Professor Dannin is also author of the recent ACS Issue Brief,No Rights Without a Remedy: The Long Struggle for Effective National Labor Relations Act Remedies.”

    A recent decision by the National Labor Relations Board’s (NLRB) New York Regional Office, could pave the way for clearing up longstanding misunderstanding of graduate students’ rights to bargaining collectively with universities that employ them.

    That decision by Elbert F. Tellem, Acting Regional Director of NLRB Region 2, comes in a case involving the efforts of graduate students at New York University to unionize.

    In May 2010, GSOC/UAW Local 2110 filed a petition with the NLRB to represent New York University graduate student employees.  The union had already won a majority of votes tallied by the American Arbitration Association on April 26, but NYU refused to recognize the union.  On October 25, 2010, the Board, in a 2-1 decision, ordered the Regional Director for NLRB Region 2 (which has jurisdiction over boroughs of Manhattan and the Bronx in New York City; and Orange, Putnam, Rockland, and Westchester counties) to hold a hearing on the employee status of the NYU graduate students.

    Most people incorrectly believe that graduate student employees have no right to union representation.  Take, for example, a July 23, 2004 Chronicle of Higher Education story on the NLRB’s 2004 decision concerning Brown University graduate students.  “Labor Board Rules Against TA Unions - Decision is major blow to organizing efforts at private colleges”:

    "Graduate students at private universities do not have the right to form labor unions, the National Labor Relations Board ruled last week, striking down its own landmark 2000 ruling that had led to a wave of organizing," The Chronicle story stated.

    The Chronicle had that impression, because that was the claim made by the majority in the 3-2 decision in Brown University – that graduate students at private universities have no right to union representation, because, said the Board majority, it is not possible to be both a graduate student and an employee of the university the graduate student attends.

    The problem is that the Board had no legal authority to issue such a broad decision. Here is why.

    First, the majority did not reach this conclusion after an analysis of the facts.  Rather, it said its decision was based on “policy,” and then extended that “policy” to all graduate students, regardless of the facts of their situation.

    The problem with making such a policy decision is that the National Labor Relations Act (NLRA) does not give the Board the power to make policy decisions in representation cases.  Rather, NLRA section 9(b) states that the NLRB must decide who is an employee eligible to vote on collective bargaining based on the facts “in each case.”  The case before the Board was not a case about the status of all graduate students everywhere.  It was solely about the Brown graduate student employees. 

    Furthermore, the law does not give the Board power to make a “policy” decision on this issue, because the law requires that such a decision be based on an analysis of the facts concerning the working conditions of the employees covered by the election petition.

  • June 10, 2011

    Lawmakers and right-wing pundits lobbing attacks against the National Labor Relations Board’s (NLRB) complaint against Boeing Commercial Airplanes are trying to interfere with the investigation into whether the company has violated federal labor law, ACS Executive Director Caroline Fredrickson told Free Speech Radio News.

    Rep. Darrell Issa, chairman of the House Oversight and Government Reform Committee, has requested documents related to the NLRB’s complaint against Boeing. The NLRB, an independent agency charged with enforcing the National Labor Relations Act (NLRA), in the spring lodged a complaint against Boeing Co., for moving some of its production to South Carolina in retaliation for its Washington State workers who have conducted strikes. It is illegal pursuant to the NLRA for employers to retaliate or discriminate against workers who engage in lawful activity, such as striking. A trial before an administrative law judge gets underway later this month.

    Republicans have called for defunding the NLRB, some accusing of it of trying to stifle job creation, and right-wing pundits have also piled on with attacks against the Board.

    Fredrickson told Free Speech Radio News that the attacks on the NLRB are all about trying to influence the outcome of the case.

    “You’ve got a group of Republicans on the Hill who are trying to intimidate the National Labor Relations Board to make the decision based on what they want rather than doing the job they were appointed to do, which is to weigh the facts, look at the law, and figure out who is right in the particular case,” Fredrickson said.

    The Free Speech Radio News’s segment on the NLRB case starts at the 24:32 mark, which is available here in the “Newscast for Friday, June, 10, 2011.”

    Yesterday ACS hosted a teleconference featuring labor and constitutional law experts, who examined the details and process of the case. Audio of the call is available here. Penn State Dickinson School of Law Professor Ellen Dannin in an ACSblog guest post also examines the Boeing case. In an ACS Issue Brief released earlier this week, Dannin explores the NLRB’s efforts to effectively enforce labor law.  

  • June 7, 2011

    With attacks on workers’ rights proliferating both at the state and national level, ACS released two new Issue Briefs today on the critical importance of strong laws that protect workers.

    In “No Rights Without a Remedy: The Long Struggle for Effective National Labor Relations Act Remedies,” Penn State Dickinson School of Law professor Ellen Dannin responds to recent allegations that the National Labor Relations Board improperly allowed a workers’ rights complaint against Boeing to go forward, asserting instead that the National Labor Relations Act contains broad workers’ rights guarantees. Dannin writes: 

    At a moment when the NLRB is being inaccurately criticized for being overly expansive in its decision to issue a complaint against Boeing, I argue that the problem is not that the NLRA is being interpreted too expansively, but rather the opposite—for too long, the Act has been interpreted in a manner that robs it of the flexibility and robust array of remedies intended by those who passed this landmark legislation. 

    A second Issue Brief, “The Assault on Public Sector Collective Bargaining: Real Harms and Imaginary Benefits,” addresses attempts by state lawmakers, such as those in Wisconsin and Ohio, to gut collective bargaining laws.

    “The radical and reactionary amendments to public sector statutes some states have adopted will thus not help budgets, but they will hurt working people and public services,” writes University of Toledo College of Law School Professor Joseph E. Slater.

    He continues: