JUN 09, 2011

South Carolina and Texas Lead 16 State Action in Latest Challenge to NLRB Complaint

Columbia, S.C. / Austin, T.X. –South Carolina Attorney General Alan Wilson and Texas Attorney General Greg Abbott today authored an amicus brief on behalf of a bipartisan, 16-state coalition that opposes the National Labor Relations Board’s (NLRB) proposal to punish employers for creating new jobs in right-to-work states.  The brief, which was joined by attorneys general from both right-to-work and unionized states, explains that the NLRB’s unprecedented enforcement action would stifle job creation and economic opportunity in all states.

The brief, authored by and South Carolina and Texas, was joined by the following states: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Dakota, Utah, Virginia and Wyoming.

Read the Amicus Brief

"The NLRB has misconstrued federal law in its complaint. In fact, the federal government's actions contradict federal law, which allows states to enact right-to-work laws without fear of retaliation from the NLRB," Attorney General Wilson said.  "Unless deterred, the NLRB's unprecedented proceedings against a company's private business decisions will cause irreparable harm to the business climate in every state and will undoubtedly create an exodus of jobs from our country.”

“At a time when 13.9 million Americans are unemployed, the NLRB is threatening to micromanage private sector investment decisions, punish states that protect their citizens from forced union membership, and discourage the creation of jobs that are desperately needed by families across the country,” Attorney General Abbott said. “Concerned about the detrimental impact of yet another job-threatening federal overreach, we forged a bipartisan, 16-state coalition to protect states’ ability to encourage economic development and promote job creation. Just last week, the Obama Administration revealed that the nation’s economic recovery is still struggling and that the unemployment rate is unacceptably high. So, at this critical juncture, we took legal action to prevent the federal government from once again stifling economic opportunity in Texas and across the United States.”

The States’ legal action was filed in response to a proposed enforcement action that would threatens jobs creation at a time when the nation’s unemployment rate is 9.1% percent and the country is still struggling to recover. On April 20, the NLRB’s acting general counsel proposed an enforcement action against The Boeing Company for building a new final production line and creating one thousand new jobs in South Carolina, which is a right-to-work state.  The NLRB incorrectly claims that Boeing “retaliated” against its unionized employees in Washington State—which is not a right-to-work state—because the aircraft manufacturer exercised its business judgment to create new manufacturing capacity in South Carolina.  Further, the NRLB is considering an enforcement action despite the fact that Boeing has created 2,000 new jobs in Washington, does not plan to eliminate any union jobs, and only proposes to create new jobs in South Carolina.

In right-to-work states like South Carolina and Texas, workers cannot be forced to join a union or pay union dues as a condition of employment.  Workers in states that have not enacted right-to-work laws, however, do not have a choice to join or not join a union.  All employees at unionized facilities must join the local union and pay union dues—even if the employee prefers to not join a union—or risk losing their jobs.

The states’ brief explains that the NLRB’s proposal violates federal labor law, ignores states’ discretion to enact right-to-work laws, and harms all states by discouraging employers from opening new manufacturing facilities anywhere in the United States, where the NLRB has enforcement jurisdiction.  According to the brief, States that have not enacted right-to-work laws will be harmed by the NLRB’s proposal because newly established employers will be discouraged from basing their operations in unionized states—because they could face a federal enforcement action if they decide to create a new facilities or jobs in right-to-work states.  Similarly, the NLRB poses a threat to right-to-work states because its enforcement action could discourage existing employers from exercising their discretion to build new facilities in states that protect workers from compulsory union membership.

A federal administrative law judge is scheduled to hold a hearing on the NLRB’s proposed enforcement action against Boeing on June 14.  Legal documents filed in that case indicate that surging global demand for the 787 Dreamliner led Boeing to conduct a geographical and economic cost-benefit analysis before deciding whether to expand operations in Washington—or construct a second final assembly facility in Charleston, South Carolina.

More than a year after Boeing invested hundreds of millions of dollars constructing its South Carolina facility—and only weeks before the new assembly line was scheduled to begin operations—the NLRB’s General counsel filed the proposed enforcement action against Boeing.  If the legally baseless proposal survives the federal administrative process, NLRB could be empowered to micromanage private sector business decisions and improperly force Boeing to close its South Carolina facility.

The States’ challenge to the NLRB’s proposal explains that the General counsel has not only misapplied the National Labor Relations Act, but has threatened economic development and job growth across the United States.  Newly established businesses will be discouraged from building their manufacturing facilities in unionized states and pre-existing employers will be prohibited from expanding operations to right-to-work states. Worse, because employers can avoid NLRB enforcement actions and micromanagement by simply creating new manufacturing facilities in foreign countries, the NLRB’s proposal creates a perverse incentive for employers to move their operations overseas.

Further, the brief explains that the NLRB is pursuing its job-killing enforcement action just days after the federal Bureau of Labor Statistics announced that 13.9 million Americans are still unemployed. Despite the nation’s 9.1 percent unemployment rate, the brief argues, the NLRB continues to pursue an enforcement action that will further undermine job growth and threaten the United States’ economic recovery.

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