The Next NLRB General Counsel Must Be Bold

A look back on the Obama Board's most controversial case sheds light on why backbone in labor law enforcement matters.

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As we speculate about Joe Biden’s cabinet and agency picks, gaming out which will be confirmed and which will be stonewalled, my thoughts drift to Lafe Solomon, Barack Obama’s Acting General Counsel of the National Labor Relations Board and his one-time nominee for the full-time position. His tenure was both inspiring and tragic in communicating what the agency was capable of, and it informs us of what we should expect in future General Counsels in Democratic administrations.

Solomon was a career NLRB employee in the strictest sense of the term. Solomon came to the Labor Board in 1972, hiring on as a field examiner with Region 19 in Seattle. He later enrolled in law school and returned to the agency as an attorney in its D.C. headquarters, working both “Board-side” and “GC-side” until he became head of the NLRB’s Office of Representation Appeals. It was from here where Obama plucked him to run the agency, then possessing almost four decades of Labor Board experience—unparalleled among past General Counsel picks. And though reversals of Bush Board precedent started slowly, it didn’t take long for Solomon to bring front-page coverage to the NLRB.

In 2009, airline manufacturer Boeing was recovering from a 58-day strike the year before at the company’s unionized facilities in the Seattle metropolitan area of Washington State. Boeing had sent ripples through the labor relations community when it announced that fall that it would transfer a second production line for its 787 Dreamliner passenger plane to a new nonunion plant in Charleston, South Carolina, reneging on comments made in previous years that it would add this production line to the Seattle facilities. The decision for a long-organized manufacturing giant to select the state with the lowest union density in the country for future production raised eyes among industry insiders and infuriated the Washington workers represented by the International Association of Machinists.

It is hard to stress how simple it is under American labor law for a unionized employer to lawfully move production from a union to a nonunion plant, even if the employer is clearly doing so for anti-union purposes. The employer simply has to refrain from explicitly saying—either out loud or in the form of a paper trail—that it is making this decision to retaliate against the union. This is because judges have consistently rejected any attempts by the NLRB to conflate ostensibly neutral profit-maximizing schemes with anti-unionism, even if the two motives almost invariably result in the same outcomes. As law professor Cynthia Estlund has explained, union avoidance strategies have received the judicial gloss of “economic rationality” in all but the most obvious circumstances.

This is why it was so astounding when Boeing CEO Jim Albaugh, through either arrogance, ignorance, stupidity, or perhaps some combination of the three, stated the following in a videotaped interview with the Seattle Times in March 2010:

Well I think you can probably say that about all the states in the country right now with the economy being what it is. But again, the overriding factor [to transfer production from Seattle] was not the business climate and it was not the wages we’re paying people today. It was that we can’t afford to have a work stoppage every three years.

The work stoppages that Albaugh referenced—economic strikes in favor of the union’s collective bargaining demands—were protected activity under Section 7 of the National Labor Relations Act. Any attempts by an employer to interfere with, restrain, or coerce its employees in their exercise of such activities would violate Section 8(a)(1) of the NLRA. Moreover, any attempts to discourage membership in a labor organization by treating union members less favorably than nonmembers are prohibited by Section 8(a)(3). But in no uncertain words, Boeing’s top management official had stated on record that the company was taking economic action against the union for exercising its lawful right to strike. This was as open-and-shut a retaliation case could ever be in the high-stakes terrain of capital allocation decisions.

The Machinists filed an unfair labor practice charge shortly after the publication of this interview, setting off a firestorm of political controversy in Congress and in South Carolina. Senator Lindsey Graham furiously lobbied Solomon to resist issuing complaint on the retaliation allegations, promising that things would get “very, very nasty” for the Labor Board with House and Senate Republicans. Solomon’s notes of the conversation, eventually revealed in through congressional discovery, indicate that Graham additionally threatened to come “full guns a-blazing” on the NLRB’s operations.

Graham’s intimidation campaign didn’t work. After 10 months of investigation and internal deliberation, the Labor Board proudly announced in a press release that it was charging Boeing with unlawful retaliation against the Seattle workers’ right to strike. More importantly, the complaint alleged that Boeing’s actions were “inherently destructive” of the workers’ Section 7 rights, which triggered a status quo remedy request instead of the usual cease-and-desist notice. The status quo here, of course, was immense and unprecedented: an order for Boeing to produce the second line of Dreamliner planes in Seattle instead of Charleston, as originally planned.

Pushback was immense. The GOP immediately set special hearings in South Carolina to stall the NLRB and sap its resources. Every conservative in Congress became an overnight expert in labor law and deployed red-baiting rhetoric at the Labor Board. Politicians misleadingly highlighted internal emails of Labor Board personnel that, in the most uncharitable light, appeared to show agency attorneys attacking Boeing and rooting for the union (or, less scandalously, decrying an accused labor law violator while supporting a meritorious charging party). In one much-publicized email, Solomon joked to the outgoing Board Chair Wilma Liebman, “You go to geneva and I get a job with airbus. We screwed up the us economy and now we can tackle Europe.”

While the substance of the NLRA was largely ignored or manipulated, opposing forces instead played to the media by insisting that the Labor Board’s actions would doom free enterprise in America. The attacks were reminiscent of those levied against the NLRB in the days of the Fibreboard and Darlington litigation, cases which also threatened the underpinnings of American capitalism by daring to challenge the notion of unlimited management rights to subcontract or terminate work.

In the face of endless fishing expeditions, calls for agency defunding, and shameless attempts to influence the case’s litigation, Solomon held strong. He knew Boeing was in the wrong and had incentive to settle the case before adjudication. Why? A few reasons:

  1. The timing of the NLRB’s complaint could not have come at a worse time for Boeing. Construction of the $750 million Charleston factory was almost complete and over 1,000 employees had already been hired in April 2010.

  2. Any chance at all that Boeing could lose at the Board or on appeal years down the road was potentially disastrous, as enforcement of the requested order would result in the company owing Seattle employees a metric ton in backpay (stemming from any work performed in South Carolina during that time).

  3. The statute and case law were overwhelmingly against Boeing.

So Boeing settled. The company and the Machinists announced ratification of a new collective bargaining agreement that included substantial raises, enhanced job security for Seattle workers, and firm commitments by Boeing to expand aircraft production in Washington State, prompting withdrawal of the NLRB’s complaint before a decision could be rendered by the presiding Administrative Law Judge. Production would otherwise continue unabated in South Carolina.

This is not to put a sepia-toned view on this era of the Labor Board. The Boeing litigation brought enormous negative media attention and political scrutiny upon the agency; conservatives crucified Solomon and the NLRB, while Obama mostly ignored them or even expressed sympathy for Boeing. Congressional Republicans maintained their onslaught on the Labor Board long after the case settled, leading to several more House hearings and indefinite Senate stonewalling of Obama’s nominations. Solomon was the most noteworthy casualty, never receiving confirmation to the full-time General Counsel position (prompting a Supreme Court case regarding Solomon’s time spent as Acting GC).

But I would argue that the lesson to learn from this saga is not to keep one’s head down and ignore clear violations of the law, even when they are committed by a manufacturing leader with immense lobbying clout. The problem was that the NLRB received extremely little support from Democratic officials even in the face of a flagrant union-busting maneuver. Despite possessing a Senate majority during this time, Democrats did not get serious about stopping Republicans’ obstruction of the Labor Board until then-Majority Leader Harry Reid threatened in mid-2013 to gut the 60-vote filibuster for all presidential nominations. Obama’s full-time replacements for Solomon and the recess appointment Board members then sailed through to confirmation.

This is not directly analogous to the current moment, pending a pair of miracles in the Georgia run-offs. But history shows that conservatives and the businesses that the Labor Board prosecutes will attempt to impede it at every turn. Instead of unilaterally disarming from this battle, Biden’s General Counsel should follow Solomon’s example and pick public fights when the law demands it. Public fights should not only key in Democratic forces (having hopefully learned from the agency’s struggles during the Obama era) to lend the NLRB a helping hand, but they raise the Board’s national profile and increase awareness of labor law’s very existence. As Solomon wryly commented at the conclusion of the Boeing case, “Many people for the first time know that there is a National Labor Relations Act, and that we do protect workers.”

If the NLRB is ever going to come close to emulating the powerful, liberating agency that its architect, Robert Wagner, envisioned it as, it will need to pick fights with lawless industrial titans to avoid further deterioration of our nation’s labor laws. In the meantime, it should not shy away from any practice rounds.

A special congressional field hearing was held on June 17, 2011 in Charleston, South Carolina to investigate the NLRB’s issuing of a complaint against Boeing. Seated at the foremost table L-R: NLRB Acting General Counsel Lafe Solomon, management attorney (and future NLRB Chairman) Philip A. Miscimarra, and law professor Julius G. Getman.