Fox Still Misrepresenting NLRB's Case Against Boeing

Fox News has repeatedly suggested that the National Labor Relations Board (NLRB) is engaging in unlawful or “anti-American” activity by filing a complaint against Boeing for deciding to build a new plant in the “right to work” state of South Carolina. But the NLRB complaint alleges that Boeing moved to South Carolina in retaliation for union workers' decision to strike, and experts say that allegations in the case represent an “absolutely standard violation” of federal labor law.

Fox Attacks NLRB Case Against Boeing As A “Political Maneuver” And “Anti-American”

Kilmeade: “It Seems Anti-American To Think [Boeing] Can't” Open A Plant In South Carolina “For Whatever Reason.” On the June 21 edition of Fox News' Fox & Friends, co-host Brian Kilmeade interviewed Rep. Darrell Issa (R-CA) about the NLRB's case against Boeing. After a clip was played showing Rep. Carolyn Maloney (D-NY) saying that “Boeing is not above the law” and should not receive “preferred treatment,” Kilmeade said: “Above the law? If Boeing wants to expand and go to South Carolina for whatever reason, it doesn't -- it seems anti-American to think they can't.” [Fox News, Fox & Friends, 6/21/11, via Media Matters]

Fox Hosts Former Bush NLRB Chair To Attack Case Against Boeing. On the June 20 edition of Fox News' Fox & Friends, co-host Steve Doocy teased an upcoming interview by saying: “Meanwhile, big labor taking on Boeing, suing to keep the company from moving to another state where they don't have to use union workers. But some union people say the lawsuit is bad for the country. We're going to talk to one next.” Guest host Martha MacCallum then interviewed Peter Schaumber, who was the NLRB chair under President George W. Bush. Schaumber claimed that Boeing has “every right” to open its plant in South Carolina and claimed the decision would “chill investment” in the U.S.. After the clip of Rep. Maloney saying Boeing is “not above the law” was played, MacCallum said:

MACCALLUM: So the basic issue here is that they want to open this South Carolina plant for 787 -- 787 assembly plant for Boeing. It would be a huge boon to jobs in South Carolina, and because it's a right to work state, the contention is that Boeing is somehow trying to punish their workers in Washington state who are unionized by moving this Boeing plant, or opening a Boeing plant, I should say, in South Carolina. Why would Carolyn Maloney be saying that this is, you know -- that they shouldn't think that they're above the law? Don't they have every right to do that?

SCHAUMBER: They certainly have every right to do it, and the Congresswoman really should not have said that. It doesn't further debate -- further the debate. It doesn't help resolve the matter. You know, members of Congress should not be accusing Boeing of violating the -- the law and simply adopting a union position because it's a union position. They should avoid doing so because the union's position is inconsistent with the law. It's wisely so inconsistent with the law, and it's going to chill investment in the United States.


MACCALLUM: I mean, a company has the right to act in its own best interest and in shareholders' best interest and in the best interest of their employees to keep their business growing and thriving. Does it not?

SCHAUMBER: It certainly does. [Fox News, Fox & Friends, 6/21/11; Law Memo, accessed 6/21/11]

Fox Hosts Former CBO Director To Suggest Obama's Refusal To Stop NLRB Decision Is “A Purely Political Maneuver.” A segment about the NLRB case against Boeing on the June 17 edition of Fox News' America's Newsroom began with a video of Senator Rand Paul (R-KY) suggesting that Obama has “an enemies list” and South Carolina might be on it because “South Carolina appears to be a Republican state.” Co-host Bill Hemmer then interviewed former Congressional Budget Office (CBO) director Doug Holtz-Eakin, who suggested that Obama's refusal to stop the NLRB complaint is “a purely political maneuver.” From America's Newsroom:

HEMMER: In a word, can the president stop this or is it outside of his jurisdiction?

HOLTZ-EAKIN: He could clearly stand up and say stand down. He hasn't. It's hard to understand this other than as a purely political maneuver. Boeing negotiated with the unions in Washington state about having this facility, and they would not guarantee that it would be uninterrupted production. Despite that, Boeing has built one production line in Washington state. It's built a third surge line in Washington state, and over in South Carolina, it's got a 1.2 million square foot facility, 1,000 workers that it's trained and has ready to go and now at the last minute, the government goes after them and says, “You've got to stop this.” [Fox News, America's Newsroom, 6/17/11, via Media Matters]

But 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]

And Experts Say Allegations In NLRB Complaint Are An “Absolutely Standard Violation” Of Federal Labor Laws

Labor Law Professor Brudney: “Relocating Work Away From A Plant Because Of Too Much Lawful Union Activity Would Be A Classic Violation” Of Federal Labor Laws. In a telephone interview with Media Matters, James J. Brudney, the Newton D. Baker-Baker & Hostetler Chair in Law at Ohio State University's Moritz College of Law, said: “Relocating work away from a plant because of too much lawful union activity would be a classic violation of 8(a)(3)” of the National Labor Relations Act, which makes it illegal for employers “to discriminat[e] in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” [Media Matters, 5/11/11]

Labor And Employment Law Professor Fisk: If NLRB General Counsel's Complaint Is True, This Is An “Absolutely Standard Violation” Of Federal Labor Laws. In a telephone interview with Media Matters, University of California-Irvine Chancellor's Professor of Law Catherine Fisk said that if the NLRB general counsel's complaint is true, this is an “absolutely standard violation of Section 8(a)(1) [of the National Labor Relations Act], which has been in the statute since 1935 and prohibits retaliation against employees for protected activities” such as forming a union, engaging in collective bargaining, and striking. Fisk also said that she saw “nothing controversial” about the complaint. [Media Matters, 5/11/11]

Fisk: Company Violates Federal Labor Laws If It Relocates Work For Purposes Of “Seeking To Stop Workers From Engaging In Unionizing, Collective Bargaining, And Striking.” Fisk also said that the case against Boeing is “all about whether the company was retaliating for the workers' decision to unionize” or engage in another protected activity like striking. She said, “It is permissible for an employer to move work to find lower wages,” but it violates labor laws if they do it for the purpose of “seeking to stop workers from engaging in unionizing, collective bargaining, and striking.” [Media Matters, 5/11/11]

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]