Sen. Grassley on NLRB and Boeing: Congress Can Fix the Law

The first question posed to Sen. Charles Grassley (R-IA) at an NAM-sponsored event in Pella, Iowa, on Wednesday dealt with the National Labor Relations Board’s complaint against The Boeing Company for locating new production facilities in South Carolina instead of Washington state. (For more on the event, see The Journal Express,NAM presents Grassley with legislative excellence award.”)

Sen. Grassley responded with sharp criticism, saying, “”If the law lets the NLRB do this, then we need to change the law.”

It’s an important “if.” In filing its complaint against Boeing for locating a new production line for the 787 Dreamliner plane in South Carolina, the NLRB had to ignore 45 years of the board’s own precedent, which clearly established an employer’s legitimate interest in mitigating the impact of strikes. The U.S. Supreme Court reaffirmed that interest in two cases, American Ship Building Co. v. NLRB, 380 U.S. 300 (1965) and NLRB v. Brown, 380 U.S. 286 (1965)].

An Administrative Law Judge has scheduled a June 14 hearing on the NLRB’s complaint, which was filed by the board’s acting general counsel, Lafe Solomon, at the instigation of the International Association of Machinists and Aerospace Workers. The NLRB could eventually hear the case and court proceedings are certainly possible, despite the complaint being “legally frivolous” as Boeing characterized it in a tough statement after the Solomon’s action.

But what if? In a very helpful review of the law, the National Review’s Robert VerBruggen describes the vague and poorly written National Labor Relations Act and the process now facing Boeing. Congressional action may indeed be necessary, he writes in “Pulling Labor Law Out of Thin Air“:

This new move by the general counsel is bad enough in itself, but the underlying legal mess is the bigger issue. It’s possible for activist judges to twist even a clearly written law to serve their ends. But this kind of malfeasance becomes almost inevitable when legislators use vague language — essentially leaving it up to presidential appointees to decide what is and isn’t legal on a case-by-case basis. In the near term, the board and the courts should do the sensible thing and end the crusade against Boeing. And in the medium term, Congress needs to fix the law so that it no longer enables such crusades. Specifically, it should lay out what kinds of business decisions are open to challenge as “unfair labor practices,” and what exactly the general counsel must prove to succeed. This would give legislators a chance not only to fill the gaps in board and court precedent, but also to reconsider the decisions these bodies pulled out of thin air over the years.

More succinctly, Congress must fulfill its responsibility to make laws, rather than simply empowering non-legislative bodies to change the rules based on their political preferences.

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