South Carolina Fight Against the NLRB Continues

The state’s war with the agency is far from over.

While the recent decision by the National Labor Relations Board (NLRB) to drop its lawsuit against Boeing’s new South Carolina plant may have signaled the end of its battle with Boeing, there are numerous signs that South Carolina’s battles with the agency will continue.  Instead of resting on their laurels, many in South Carolina are continuing to battle the agency on a number of fronts, as well as continuing to work to protect workers’ rights from labor union interference.

The first sign of trouble came in January just after South Carolina voters overwhelmingly approved a state constitutional amendment protecting the right of workers to decide union issues by secret ballot. In a letter to state Attorney General Alan Wilson, the NLRB threatened to file suit if the state sought to implement the amendment, seeking assurances that such implementation would not take place. Wilson rebuffed the demands and pledged to stand by state voters, saying, “I don't know how you don't defend a sweeping decision made by eighty-six percent of your state's voters.” According to Wilson, the NLRB has yet to follow up on their threat, instead focusing their current efforts upon overturning similar laws in Utah and Arizona. While he couldn’t predict future NLRB action, his office is “keeping its powder dry” and is ready to act should action be taken against South Carolina.

The NLRB also took aim at one of South Carolina’s largest industrial development successes to date- Boeing’s 787 “Dreamliner” plant in North Charleston - filing suit to keep the plant from opening. Following years of failed negotiations with labor unions in Washington state, Boeing chose to open its new 787 plant in South Carolina at the location of a small Boeing plant whose workers had just voted overwhelmingly to de-certify (kick out) the union in their plant. In a highly-publicized battle led by House Republicans, including a tense House subcommittee hearing held near the site of the new plant, the NLRB was taken to task for what was believed to be government retaliation on behalf of labor unions. Last week, after Boeing completed negotiations with labor unions at their Seattle production plants, the NLRB dropped their case against Boeing just in time for the first Dreamliners to roll off production lines.

While the Boeing case may be closed, South Carolina hasn’t stopped fighting back. South Carolina State Senator Paul Campbell (R-Goose Creek), a retired Alcoa executive who was one of South Carolina’s negotiators for the 787 plant, predicted that the state’s fight with the NLRB and the labor unions will continue, calling the NLRB a “pawn for labor unions.” South Carolina Congressman Tim Scott (R-North Charleston), a former Charleston County Council Chair who played a key role in efforts to bring both Boeing, as well as the Vought Aerolina plant which was the precursor of the Boeing plant, to the Charleston area, shared Campbell’s view, saying, “Their (the NLRB) side is not the state, their side is not fairness - their side is the labor unions.”

Representative Scott, Senator Lindsey Graham, and other members of South Carolina’s Congressional delegation are playing lead roles in maintaining an ongoing impasse over the appointment of new board members to the NLRB. Senate Republicans have blocked efforts by the Obama administration to fill those vacancies while House Republicans are keeping Congress from adjourning by conducting pro forma sessions, keeping the Obama administration from filling the seats via temporary “recess appointments.” Two of the board’s five seats are vacant and a third will come vacant at the end of the month. Once a majority of seats are vacant, it cannot conduct business. Both Congressman Scott and fellow South Carolina House member Jeff Duncan (R-Laurens) indicated the House leadership will continue the pro forma sessions for the foreseeable future.

Duncan expressed his concern with the NLRB’s conduct in the Boeing case, promising to “push for changes in the law to make sure that the NLRB never uses this type of unconstitutional bullying tactic again,” while Scott expressed his belief that “the forces at work within our country to undermine our recovery include the NLRB.” Driven by these concerns, Duncan and Scott have sponsored several bills aimed at protecting free choice by employees and reining in the NLRB. These bills include:

• H.R. 1047 - “State Right to Vote Act,” sponsored by Duncan, would protect states that adopt laws allowing workers to settle issues by secret ballot.

• H.R. 1976 and 2587, both sponsored by Scott, would bar the NLRB from directing companies to close or move plants or jobs, while another Scott bill, H.R. 2810 - The “Employee Rights Act,” would require the use of secret balloting to unionize a workplace and require a renewal vote every three years. It would also set guidelines on how these elections are to be conducted.

In September, the South Carolina Chamber of Commerce joined the U.S. Chamber of Commerce and others in filing suit in federal courts to block implementation of what is known as the “Notification Rule.” This proposed NLRB rule would create a new mandate which would require employers to post notices that have been considered free advertising for labor unions.

Scott believed the backlash against the NLRB over the Boeing case taught the agency to be careful in picking its battles with businesses, predicting “the NLRB will become a little more cautious when it steps outside of the lines with companies in the future.” Given the ongoing efforts being waged in the courts and on Capitol Hill by South Carolina’s business and political leaders, it would seem that while the battle over the Boeing plant may have ended, the state’s war with the agency is far from over.

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