Conservative media figures have claimed that the National Labor Relations Board is seeking to ban companies from moving to states with lax labor laws by filing a complaint against Boeing's decision to move the production facility for its new 787 Dreamliner to South Carolina. In fact, the NLRB's general counsel has alleged that Boeing moved its 787 production line in retaliation for strikes by Boeing workers at its Seattle-area plant, which, if proven true, constitutes a clear violation of federal labor laws.
Conservative Media Falsely Claim NLRB Is Seeking To Ban Companies From Moving To States That Are Unfriendly To Unions
Fox's Bolling: NLRB Is "Saying You Can't Hire Workers At A Lower Wage In South Carolina. You Need To Hire In Washington State Where We Can Get Our Grimy Little ... Hands On You And Raise Your Wage." From the May 10 edition of Fox News' Glenn Beck, guest-hosted by Eric Bolling:
BOLLING: The world's largest aerospace company wants to start production at a new $2 billion manufacturing plant in South Carolina this July. That plant would create more than a thousand jobs, but the government's National Labor Relations Board is trying to stop Boeing because this new plant would be in South Carolina, a right-to-work state, instead of in Washington state, where labor rights are the law of the land. So here's a company who's trying to create jobs but is getting a roadblock from the White House.
BOLLING: Why does the NLRB have an opinion about Boeing opening a new plant in South Carolina?
MAYOR VIRG BERNERO (D-Lansing, MI): The NLRB has an opinion --
BOLLING: They already have a plant in Washington state.
BERNERO: The NLRB as an opinion and a role in how workers are treated. And I want to live in a country where workers have rights and can choose to form a union if they wish. You know, I don't wake up in the morning and say WWPD, What Would Putin Do? I want to live in a country where people have rights and people have freedom of association.
BOLLING: Virg, does the NLRB have a right to tell Boeing how much profit it can make?
BERNERO: Well, of course not. But the point is --
BOLLING: Well that's what they're doing. They're saying you can't hire workers at a lower wage in South Carolina. You need to hire in Washington state where we can get our grimy little [unintelligible] hands on you and raise your wage.
BERNERO: I don't think that's what they are saying. I think what they're saying is that workers have rights. And I think they have made a legal finding of fact that workers are being punished for their union activities. And I want to live in a country where people have the right to belong to union without fear of reprisal. Now, maybe that is not the America you envision. But that's the America I want to live in. [Fox News, Glenn Beck, 5/10/11]
Breitbart And Bolling Agree That Boeing Case Amounts To "Thuggery." From a May 6 segment on Bolling's Fox Business show, Follow the Money, featuring right-wing gadfly Andrew Breitbart:
BOLLING: Boeing built a new aircraft plant in South Carolina and hired a thousand new non-union workers there, but the union lovers on the NLRB, National Labor Relations Board, are suing Boeing. They say, we want our piece of that pie.
BOLLING: So is the NLRB-President Obama love affair going to take down the free market project? Andrew, I've heard you say it. You've said you don't like thuggery. Isn't this an example of union thuggery?
BREITBART: Yeah. No. I didn't know that much about unions before this presidency. But what I have seen, the only people that we know who have gone to the White House hundreds of times are Richard Trumka and Andy Stern. This is a presidency that's being run by proxy by way of the unions. And it's thuggery. It's happening in battles that you see in terms of people versus people in Wisconsin, the thuggery against the Tea Party up there. I was attacked in Searchlight, Nevada by the IBEW Local 357. The Tea Party Express bus was hit by eggs as they were passing by. I'm looking at this type of thing. It's anti-capitalism. It's anti-capitalism. The idea that these people can't move their companies where they want to. And I swear, it is President Trumka. When it comes to the fiscal policies of this country, the unions are leading the charge. [Fox Business, Follow the Money, 5/6/11, via Media Matters]
Hugh Hewitt On Boeing Case: "Obama May Have Ordered The Attack On Bin Laden, But He Has Also Ordered An Attack On American Manufacturing And Defense." From a May 8 Washington Examiner op-ed by right-wing radio host Hugh Hewitt:
As Americans toast SEAL Team 6 and its Army pilots and vast support network, the GOP's would-be nominees should be pointing to the Pentagon that ordered and produced the tools used in the mission, and defending its budget as the president tries to find deep cuts there that will spare his favored constituencies painful reductions in government largess.
Part of that argument ought to be a vigorous defense of Boeing, now in the cross hairs of the president's Alinskyite appointees at the National Labor Relations Board.
Obama's attack on Boeing's decision to create great jobs in a red state, even when the manufacturer is one of America's great defense contractors, is a huge issue that needs to be used by GOP candidates up and down the ticket to define the president and his agenda.
Obama may have ordered the attack on bin Laden, but he has also ordered an attack on American manufacturing and defense, and especially on the freedom of businesses to build and expand where they want to. [The Washington Examiner, 5/8/11]
Complaint Actually Alleges That Boeing Moved Work To SC In Retaliation For Union Workers' Decision To Strike
NLRB General Counsel's Office Complaint Alleges Boeing "Threatened Or Impliedly Threatened" Workers That They "Would Lose Additional Work In The Event Of Future Strikes." From the complaint against Boeing filed by the NLRB general counsel's office:
On or about the dates and by the manner noted below, Respondent [Boeing] made coercive statements to its employees that it would remove or had removed work from the Unit because employees had struck and Respondent threatened or impliedly threatened that the Unit would lose additional work in the event of future strikes. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]
Complaint Alleges Boeing CEO Said He Was Moving "787 Dreamliner Work To South Carolina Due To 'Strikes Happening Every Three To Four Years' " In Washington State. From the complaint:
[Boeing president, chairman, and CEO, Jim McNerney] made an extended statement regarding "diversifying [Respondent's] labor pool and labor relationship," and moving the 787 Dreamliner work to South Carolina due to "strikes happening every three to four years in Puget Sound." [The Boeing Company NLRB general counsel's office complaint, 4/20/11]
Complaint Alleges Boeing Executive Vice President Said Boeing Relocated Dreamliner Production To South Carolina "Because Of Past Unit Strikes, And Threatened The Loss Of Future Unit Work Opportunities Because Of Such Strikes." From the complaint:
[Boeing executive vice president Jim Albaugh] stated that Respondent decided to locate its 787 Dreamliner second line in South Carolina because of past Unit strikes, and threatened the loss of future Unit work opportunities because of such strikes. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]
Complaint Alleges Boeing Decided To Transfer 787 Production To SC Because Washington State Employees "Engag[ed] In ... Lawful Strikes." From paragraph 7 of the complaint:
(a) In or about October 2009, on a date better known to Respondent, but no later than October 28, 2009, Respondent decided to transfer its second 787 Dreamliner production line of 3 planes per month from the Unit to its non-union site in North Charleston, South Carolina.
(b) Respondent engaged in the conduct described above in paragraph 7(a) because the Unit employees assisted and/or supported the Union by, inter alia, engaging in the protected, concerted activity of lawful strikes and to discourage these and/or other employees from engaging in these or other union and/or protected, concerted activities.
(c) Respondent's conduct described above in paragraph 7(a), combined with the conduct described above in Paragraph 6, is also inherently destructive of the rights guaranteed employees by § 7 of the Act. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]
Federal Labor Laws Expressly Forbid Companies From Retaliating Against Workers For Strikes And Other Union Activities
National Labor Relations Act Gives Employees "The Right To ... Join Labor Organizations" And "Engage In Other Concerted Activities." From Section 7 of the National Labor Relations Act (codified as Section 157 of Title 29 of the U.S. Code):
Employees shall have the right to self-organization, to form, join, or assist labor organizations, 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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a)(3) of this title. [29 U.S.C. § 157, accessed 5/10/11, via Law.Cornell.edu]
National Labor Relations Act Forbids Employer Actions That "Interfere With, Restrain, Or Coerce Employees In The Exercise" Of Right To Form Unions And Engage In Concerted Activities. From Section 8(a) of the National Labor Relations Act:
It shall be an unfair labor practice for an employer --
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. [29 U.S.C. § 158, accessed 5/10/11, via Law.Cornell.edu]
NLRB General Counsel's Complaint Does Not Seek To Ban Companies From Moving To States That Are Unfriendly To Unions
Complaint Specifically Says Boeing Is Free To Make "Non-Discriminatory Decisions" About "Where Work Will Be Performed." The complaint asks that the 787 production line that was moved to South Carolina allegedly for the illegal purposes of punishing Washington state workers for going on strike be moved back to Washington state. However, the complaint adds that it "does not seek to prohibit [Boeing]" from having work performed in South Carolina or anywhere else as long as Boeing does not violate labor laws in making such decisions. From paragraph 13 of the complaint:
(a) As part of the remedy for the unfair labor practices alleged above in paragraphs 7 and 8, the Acting General Counsel seeks an Order requiring Respondent to have the Unit operate its second line of 787 Dreamliner aircraft assembly production in the State of Washington, utilizing supply lines maintained by the Unit in the Seattle, Washington, and Portland, Oregon, area facilities.
(b) Other than as set forth in paragraph 13(a) above, the relief requested by the Acting General Counsel does not seek to prohibit Respondent from making non-discriminatory decisions with respect to where work will be performed, including non-discriminatory decisions with respect to work at its North Charleston, South Carolina, facility. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]
Labor Law Professors: Boeing Complaint Is Straightforward Attempt To Enforce Provisions Of Federal Labor Law
Labor Law Professor Secunda: Complaint Against Boeing Shows The NLRB Is "Carrying Out Its Congressionally Mandated Mission To Protect The Right Of Workers To Engage In Concerted Activity." From a Seattle Times editorial by Marquette University Law School associate professor Paul Secunda:
The National Labor Relations Act gives workers the unequivocal right to engage in concerted activity -- including the right to strike. Boeing stated publicly that it was moving production away from Washington because its workers there previously went on strike and could go on strike again in the future.
Such comments amount to an admission from the company that it was intentionally retaliating against employees and trying to limit their rights -- a clear affront to the law that the NLRB is charged with enforcing.
At the end of the day, what we are seeing is the agency carrying out its congressionally mandated mission to protect the right of workers to engage in concerted activity for mutual aid and protection. The agency is simply enforcing the law, providing balance and fairness for workers and businesses alike. [The Seattle Times, 4/29/11]
Labor Law Professor Hirsch: Boeing Allegations Involve A "Relatively Straightforward Case Of An Employer Punishing Workers For Striking." From a post on the Workplace Prof Blog by University of Tennessee College of Law associate professor Jeffrey Hirsch:
I've been surprised at how much attention is getting paid to the NLRB General Counsel's complaint against Boeing. Based on what I've seen, the conservative uproar to what, based on the allegations is a relatively straightforward case of an employer punishing workers for striking (with admittedly large potential economic impacts), is way out of proportion. But this editorial from the Wall Street Journal (subscription required, but if you Google the title, you can find it free) and the legislation it describes, has now entered the bizzaro stage.
As for the editorial, even taking into account the normal tenor one would expect from a WSJ editorial, I honestly don't ever remember seeing any piece of writing with so many inaccuracies. For instance, there's the title, which states that there is a Board ruling (it's just a GC complaint); the description of the remedy to shut down production in South Carolina (the GC doesn't seek that, it would just require Boeing to maintain production in Washington; and the argument that the complaint requires employers to stay in non-right-to-work states (I don't even know where to begin). Two minutes with a fact-checker would've had these cut, although that would've undermined the purpose of the editorial and its support for the legislation. [Workplace Prof Blog, 5/4/11]
Complaint Does Not Represent Final Decision By NLRB
NLRB Acting General Counsel: Complaint Is "Just The Beginning Of A Legal Process"; Case Will Proceed Before Administrative Law Judge, Whose Decision Can Then Be Appealed. From a May 9 statement by NLRB acting general counsel Lafe Solomon:
NLRB Acting General Counsel Lafe Solomon today responded to inquiries regarding a complaint issued April 20 against the Boeing Company with the following statement:
"Contrary to certain public statements made in recent weeks, there is nothing remarkable or unprecedented about the complaint issued against the Boeing Company on April 20. The complaint involves matters of fact and law that are not unique to this case, and it was issued only after a thorough investigation in the field, a further careful review by our attorneys in Washington, and an invitation by me to the parties to present their case and discuss the possibility of a settlement. Only then did I authorize the complaint alleging that certain statements and decisions by Boeing officials were discriminatory under our statute.
It is important to note that the issuance of a complaint is just the beginning of a legal process, which now moves to a hearing before an administrative law judge. That hearing, scheduled for June 14 in Seattle, is the appropriate time and place to argue the merits of the complaint. The judge's decision can further be appealed to the Board, and ultimately to the federal courts. At any point in this process, the parties could reach a settlement agreement and we remain willing to participate in any such discussions at the request of either or both parties. We hope all interested parties respect the legal process, rather than trying to litigate this case in the media and public arena." [Statement by NLRB acting general counsel Lafe Solomon, 5/9/11]