4/4/12 Reining In the Agencies – The Fourth Branch of Government – National Affairs
On April 20, 2011, the National Labor Relations Board set off a heated political and economic debate, and in the process forced into the public spotlight a question that normally occupies only administrative lawyers and scholars of regulation: the question of “independent federal agencies” in our system of government.
Two years earlier, the Boeing Company had decided to create a new production facility in South Carolina to build its latest commercial aircraft, the 787 Dreamliner. Boeing was already producing Dreamliners at its plant in Everett, Washington, but chose to build a second assembly line in South Carolina in part because of that state’s relative labor-market stability. In Washington, union strikes and protests had closed Boeing’s production facilities four times since 1989, costing the company billions of dollars and delaying the Dreamliner’s production. South Carolina, by contrast, is a “right to work” state (meaning that its laws do not allow unions to compel workers to join), and its labor market is not nearly as dominated by union power.
By April 2011, Boeing had already built its South Carolina facility and hired a thousand workers; operations were due to begin in just weeks. But in response to a union complaint that the company had deliberately chosen to place its new factory in a state far less friendly to unionization, the NLRB demanded that Boeing shutter its nascent South Carolina operations and, as the formal complaint put it, “operate its second line of 787 Dreamliner aircraft assembly production in the State of Washington, utilizing supply lines maintained by [Boeing] in the Seattle, Washington, and Portland, Oregon, area facilities.” To justify its demand, the NLRB cited five examples of Boeing officials’ remarking on the indisputable business appeal of opening the new production facility in a state where labor stoppages would be less likely.