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To Republicans presidential candidates, the National Labor Relations Board’s (NLRB) decision to issue a complaint against the Boeing corporations shows a pro-labor administration run amuck. To many labor supporters, the decision signals an Obama administration, after years of neglect, finally taking a stand for labor rights. In reality, the Boeing case stands for something far different: how depressingly little remains of the right to strike in the United States.
The NLRB alleges Boeing retaliated against strike activity by members of the International Associations of Machinists (IAM) by transferring a line of production of the 787 Dreamliner aircraft from Washington State to South Carolina. Boeing CEO Jim McNerney publicly stated that Boeing built the billion-dollar facility in South Carolina because of “strikes happening every three to four years in Puget Sound.” The NLRB cites an impressive line of cases holding such comments unlawful.
On June 30, Administrative Law Judge Clifford Anderson rejected Boeing’s motion to dismiss the complaint for failure to state a claim. “This reaffirms what we have said all along, that Boeing provided no facts or legal basis as to why the case should be dismissed,” said Connie Kelliher, spokeswoman for Machinists Union District Lodge 751. “The case will now proceed to a trial, as it should, on its merits.”
The words of the Wagner Act, passed in 1935 during the heart of the Great Depression, ring clear with support for collective bargaining and the right to strike. “Employees shall have the right” declares the Act “ … to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Congress made it a violation of law for employers to interfere with such rights. Supporters of the Act believed collective bargaining backed by a strike could level income inequality, stimulate the economy by increasing purchasing power and bring democracy to workplaces.
However, as we are seeing with the attack on public-sector collective bargaining, corporate America does not believe in the right to collective bargaining. For decades, anti-labor conservatives used their influence in Congress and the courts to undermine the right to strike. The strike, once a force capable of lifting workers out of poverty and transforming the wage structures of entire industries, has become a feeble tool, rarely employed by unions. Whereas major strikes (those of over a thousand workers) averaged 350 per year through the 1950s, the number plummeted to an average of 20 per year in the last decade.
Corporate America, working though Congress and their allies in the courts have gutted the right to strike. Despite the Wagner Act’s clear prohibition against employer discrimination for strike activity, judges hold that employers can “permanently replace” striking workers. At the same time, effective union tactics, including solidarity, have been outlawed.
As a rare exception to this trend, Boeing workers dared to strike for eight weeks in 2008. Decades ago, it would have been a routine strike, one quickly forgotten. However, to Boeing executives, and corporate America in general, any strike activity is too much. So Boeing executives created a billion-dollar facility in South Carolina to grind Boeing workers into submission.
One of the few remaining slivers left of the legal right to strike — and it is only a sliver — is that employers are not supposed to openly admit they are retaliating against workers for exercising their right to strike. Employers are supposed to use code words to explain their actions; to say they are transferring work for “lower labor costs” or a “better business climate.”
Which brings us to the real legal issue in the Boeing case: Will an employer too stupid or too brazen to use such euphemisms suffer any consequences?
The underlying problem, and the real threat to the right to strike, is not even part of the debate over the Boeing charges. For decades, it has been taken for granted that it is management’s prerogative to shift production. This viewpoint represents management’s “values and assumptions” imposed upon the labor movement through decades of court decisions.
In contrast, the traditional union movement believed that human labor had value; that workers had an interest in the plants that their very labor had created. As one sit-down striker stated in justifying the famous 1937 auto strike in Flint Michigan, “our hides are wrapped around those machines.”
In every area of society, capital demands more and more prerogatives. In the realm of politics, a Supreme Court majority subservient to Corporate America is freeing capital from restrictions on its exercise of political power. In the realm of employment law, courthouse doors are being slammed shut by limitations on class action suits. In state after state, anti-labor conservatives are attacking the public sector because they detest the very idea of a sphere of society not subservient to market forces. And, as the Boeing case demonstrates, what little that remains of the legal right to strike is under assault.
The NLRB should be defended for issuing charges against Boeing. Boeing was trying to punish Washington state workers for striking and to prevent them from striking in the future. But let’s not let Republicans define this debate. With the halls of justice slammed shut, politics thoroughly corrupted and our economy in shambles, working people need the right to strike. That will take much more than requiring the use of euphemisms; it will take restoring the original promise of the Wagner Act.
Joe Burns is the author of the book Reviving the Strike: How Working People Can Regain Power and Transform America (IG Publishing, 2011).
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Joe Burns, a former local union president active in strike solidarity, is a labor negotiator and attorney. He is the author of the book Reviving the Strike: How Working People Can Regain Power and Transform America (IG Publishing, 2011).