Friday, October 14, 2011

Barenberg, Brudney, and Klare on the Boeing Case

UnknownMark Barenberg (Columbia), Jim Brudney (Fordham), and Karl Klare (Northeastern) have a guest op-ed in today's New York Times on the Boeing case.  As readers well know, the attack on the NLRB's pending litigation in this case has gotten under my skin (see here and here), so in my view, the more defenses of the Board the better.  I particularly like the following analogy, which nicely sums up the larger issue at stake here:

Everyone agrees that a company may legally locate its production anywhere it wishes and for any reason — except retaliatory ones. Imagine if Boeing had deliberately located a new plant in an area with a predominantly white labor force and then publicly stated that it did so because it was tired of listening to discrimination complaints made by African-American employees at its home plant. If the general counsel’s allegations are true, Boeing did something legally indistinguishable — unless labor rights no longer count as “real” rights.

But read the entire piece, it's worth it.


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About the level of intellectual dishonesty I'd expect from (some) labor "academics."

"In 1967, the future Supreme Court Chief Justice Warren Burger (then a federal appellate judge) wrote a decision holding that an employer may not transfer work to punish employees for exercising National Labor Relations Act rights (like the right to strike). Likewise, the labor board has long had the authority to order restoration of work relocated as part of an unfair labor practice, and the appellate courts have approved such orders."

Well, that's nice. Now let's talk about what's REALLY going on here, since no work was "transferred" (the SC facility is an entirely NEW production line), and therefore, there's nothing to "restore."

"If the general counsel’s allegations are true, Boeing did something legally indistinguishable — unless labor rights no longer count as 'real' rights."

Of course, "labor rights" have NEVER been "'real' rights," at least in the sense that they are anything more than statutory creations, repealable at will. Moreover, the NLRA protects employees, not unions. Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992).

"If his investigation yields reasonable cause to believe that a violation occurred, his only legally proper course is to bring a case to be decided through the ordinary process."

Yeah, that's a bad joke. Ask the hundreds of Beck objectors whose rights were ignored by the General Counsel over more than a score of years.

Posted by: James Young | Oct 14, 2011 8:22:42 AM

If Jim is right and this is a new production line, Boeing will win. Unfortunately, Boeing made some very public statements that they were actually relocating the production line.

Posted by: nick | Oct 14, 2011 4:06:02 PM

Statutory based rights are not real? So I guess the rights under the ADA, Title VII, FLSA, and countless others are not real. I'll let others respond on the merits of your comments in regards to the Boeing case.

Posted by: Per Son | Oct 14, 2011 5:46:51 PM

I agree that the "unlawful transfer" analogy is not the best. I prefer thinking of this as a recapture of bargaining unit work. Assume the ER has new work which but for unlawful discrimination would have been awarded to the bargaining unit. I believe if those facts are proved a violation is rather easily made out. As the Op Ed properly reflects, however, the remedy is a separate question. What is unusual about the case is that most restoration of operation orders - which as the piece notes are evaluated under an "unduly burdensome" standard - occur in an 8(a)(5) unilateral change context where the objective is to return the parties to the status quo ante. In my experience 8(a)(3) restoration orders are unusual. Typically they arise in "runaway shop" scenarios where there has been a transfer of work, i.e., a diminution of work at the "transferring" location. Here, the situation is complicated if there has been either a net increase of work or even no net decrease within the Seattle bargaining unit. It is a problem on the "adverse action" prong of the Wright Line analysis - an element of the prima facie case that is sometimes overlooked.

Posted by: Michael Duff | Oct 15, 2011 7:23:09 AM

The op-ed is exactly right, thanks for the link. James goes 0-3 in (i) pretending that facts in dispute are not in dispute, (ii) wishing the law was something other than the law is, and (iii) parrotting an irrelevant and inaccurate right-to-work talking point about an unrelated issue. And doing it all in a needlessly insulting way.

Posted by: Joseph Slater | Oct 15, 2011 8:28:17 AM

One man's "needlessly" insulting is another man's appropriately insulting. As to the third point, Joseph, simply because YOU and other union apologists deem individual employee rights --- including the right to refrain --- "irrelevant" doesn't mean that everyone does, particularly when Section 7 specifically protects it. And I was, of course, comparing apples with apples: the GC's exercise of his "unreviewable discretion" over whether to issue a complaint in this context with his (i.e., his office's) exercise of the same discretion in another context. We can certainly debate the propriety of the exercise of that power in various contexts; we can even debate over whether the office SHOULD have such power. But don't dare to pretend that "If his investigation yields reasonable cause to believe that a violation occurred, his only legally proper course is to bring a case to be decided through the ordinary process." That argument bespeaks either ignorance of the GC's power based upon history and court cases upholding the GC's "unreviewable discretion," or simple fraud.

Posted by: James Young | Oct 17, 2011 7:20:42 PM

Nice job avoiding the substantive points you were wrong on, James. As to the GC's discretion, based on all your posts here and your other work, it's fair to say that the fact that you think some agency-fee charge is valid doesn't mean much in terms of the case's actual validity. Now there's an example of "appropriately insulting."

Posted by: Joseph Slater | Oct 20, 2011 7:20:00 AM

Joseph, in light of timing of your post, you must have started drinking a little early if you actually labor under the illusion that the GC's office doesn't make political decisions.

Posted by: James Young | Oct 21, 2011 7:24:09 PM

James: I never said that, so add that to the bushel of your misunderstandings and lies.

Posted by: Joseph Slater | Oct 22, 2011 8:45:29 AM

Misunderstandings and lies, Joe? Like "avoiding the substantive points [I was] wrong on"? Does that bear any relation to your avoidance of identifying them in lieu of a global, unsupported charge? Or your charge about my litigation record with the GC's office, about which --- given the rules governing those cases, and in the absence of a completely unreasonable number of FOIA requests --- you probably are singularly ignorant? Just to clue you in: I can't recall a case in which I challenged, in a Board case, whether "some agency-fee charge is valid." After nearly 22 years of litigating these issues, my memory could be faulty, and you might be able to correct me/refresh my recollection, but I doubt it.

And after all that, you don't bother to rebut the fundamental point: that the GC has "unreviewable discretion" when it comes to whether or not he/she issues a complaint.

Pretend to be an academic if you like, Joe. Your post makes it abundantly clear that you're just another ideologue in academic garb.

Posted by: James Young | Oct 22, 2011 12:07:06 PM

Who would rebut the point on unreviewable discretion? That is well known. I believe that Joe was pointing out that your statement about Boeing facts not being in dispute when they are, disagreement on what the law is (stating you got it wrong), and that you brought up an irrelevant issue regarding Beck Objectors.

Then stuff went downhill. I think your comment on his role as an academic is way off. His articles and teaching speak for themselves. Are you critiquing his teaching and writing? Seems silly to attack his credibility on some blog comments.

Posted by: Per Son | Oct 23, 2011 5:52:45 AM


You have spent the whole thread avoiding the substantive points you were wrong on: mischaracterizing facts in dispute as established and showing no indication that you understand current labor law rules applicable to the Boeing case (we all know you don't like what you think you know, but that's a different point). You seem to think an over-the-top insulting style is effective advocacy, but actually it makes you the clown / comic relief of this blog. I'll leave at that, for now.

Posted by: Joseph Slater | Oct 23, 2011 9:21:31 AM

"Per Son," that's another thing Joe is lying about: I NEVER said the facts were not in dispute. He surmises that I am "pretending that facts in dispute are not in dispute," but that was his line, not mine. I was merely using the words from the case he cited to point out the difference between the facts of the case he cited and the situation here.

And it appears that Joe is conceding that you have no idea what my record is before the GC's office, since he's ignored my rebuttal.

Soooo, what we're left with is Joe's utterly ad hominem response. But advocacy is what REAL lawyers engage in, Joe. And it's also pretty useful in politics.

Which brings me back to my original point: this isn't ABOUT law. It's about politics. And Joe's commentary in the NYT is about political advocacy masquerading as an "academic" exercise. Just like this case.

Posted by: James Young | Oct 24, 2011 11:00:12 AM

I agree that the GC's discretion to issue or not issue a complaint is unreviewable from a legal standpoint. Viewed a vacuum this allows people to infer a political motive to the Acting GC, who for the record is a career government employee who has worked closely with Republican and Democratic appointees to the NLRB. Reality is less of a vacuum, a work transfer in violation of 8(a)(3) is a well established violation under the NLRA. To suggest that the GC should ignore the issue when high level members of Boeing management openly stated an anti-union motive is problematic and a lot more complicated that simply falling back on the legal point of being unreviewable.

Posted by: nick | Oct 25, 2011 6:45:29 PM

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