[Congressional Record Volume 157, Number 60 (Thursday, May 5, 2011)]
[Senate]
[Pages S2703-S2706]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NLRB COMPLAINT
Mr. HATCH. Mr. President, I rise to speak about an unfortunate and,
quite frankly, disturbing matter.
While we were all back home during the most recent Senate recess, the
National Labor Relations Board's acting general counsel, Lafe Solomon,
after 17 months of indecision, issued one of the most far-reaching and
outrageous complaints ever issued by the Board against a private
business. This complaint against Boeing is one of the most outlandish
and regrettable complaints I have seen in all my years in the Senate.
The NLRB's acting general counsel--emphasis on the ``acting''--
sitting in his ivory tower in Washington, DC, essentially substituted
his business judgment for that of a private corporation. In essence,
Mr. Solomon claimed the authority to determine where and how a private
company is permitted to do business.
This is a specious claim. Boeing did nothing wrong, and I am
confident it will ultimately prevail. Yet this complaint carries a
potential cost of billions of dollars and thousands of new jobs for the
company in the community where it chose to operate.
So why make this decision at all? Why attack a private company with a
legal challenge that will cost an enormous amount of money to defend,
disrupts business, undermines the efforts of States to increase jobs
and promote economic recovery but that will fail for its lack of merit?
The answer is simple. The unions want it. This is another chapter in
the sorry relationship between unions, big government, and the party of
big government.
I have to say, I admire Mr. Solomon's moxie. By making this decision
during a congressional recess, it is almost as if he thought it might
avoid our scrutiny. Maybe he thought news such as this might not make
its way back to the States. To that I say: Nice try, but you will not
escape the scrutiny of the American people when it comes to an action
this over the top. Sunshine will fall on a decision this politically
motivated. In the light of day, the decision and the decisionmakers are
going to look awfully bad.
The NLRB's Boeing complaint has been widely criticized in the media,
in the Senate by a number of my colleagues, and throughout the business
community as a prime example of a Federal bureaucracy run amok. But
this is more than another example of an unaccountable bureaucracy
harming job creators and employees. What makes this case particularly
ugly is, this is a case of regulators conveniently supporting the
interests of big labor against private enterprise. What makes this case
appalling is, it is a gift-wrapped present to the interests that just
so happen to be the largest contributors to Democratic Party campaigns.
The NLRB issued its complaint against Boeing--one of our Nation's
iconic companies--for allegedly transferring assembly work on its
Dreamliner 787 fleet of airplanes from Puget Sound, WA, to North
Charleston, SC. Boeing made a legitimate business decision to open a
new plant with new workers in a new more business-friendly climate. It
chose South Carolina, in part, to avoid labor disputes and crippling
strikes which had befallen the company repeatedly over the past few
years.
When Boeing first made this decision way back in 2009, it had
experienced four major labor strikes in 20 years. The most recent work
stoppage--a 58-day strike in 2008--cost the company $1.8 billion.
Was the decision to bring new work to South Carolina a prudent
business decision? Boeing faces significant global competition. The
French company, Airbus, is anxious to take Boeing's business with the
help--and backing, I might add--of the French Government.
Was the decision good for American workers? Clearly, Boeing's
decision was. In the current marketplace, many of Boeing's competitors
might have considered moving jobs overseas. Instead of following that
course, Boeing saved American jobs.
The President likes to talk about jobs he has created and saved.
Well, not a single job--union or nonunion--was lost in the State of
Washington as a result of Boeing's decision. In fact, over 2,000 new
jobs have been created in Puget Sound since the company's announcement
to begin work on the new facility. This is not to mention South
Carolina, where hundreds of new jobs were created. Added jobs in
Washington plus added jobs in South Carolina sounds like a win-win for
American workers to me.
So, yes, Boeing's decision to build its new plant in South Carolina
was good for just about everybody. Yet, without asserting any evidence
of anti-union animus on the part of Boeing or of an adverse impact on
union workers exercising their legal rights, the NLRB filed its
complaint and has sought to step in and make Boeing's business
decisions for them.
As South Carolina Gov. Nikki Haley described it in an April 26 Wall
Street Journal editorial:
The excitement of South Carolina turned to gloom for
millions of South Carolinians who are rightly aghast at the
thought of the greatest economic development success our
state has seen in decades being ripped away by federal
bureaucrats who appear to be little more than union puppets.
Governor Haley should be applauded for calling the NLRB's decision
for what it is: a hand-wrapped present to big labor, courtesy of their
friends in the Federal bureaucracy and the administration.
Let's take a look at the NLRB's complaint for a moment. First, let's
consider the timing of the complaint. It is highly suspect, if you ask
me. The Boeing complaint comes just a few short months before the new
South Carolina facility was scheduled to open in July and well after
most of the construction was completed and the new workers were hired.
In other words, after most of Boeing's substantial investments had been
made, the heavy hand of the Federal bureaucracy intervened to dictate
that its business decision must be reversed.
In its April 21 editorial, the Wall Street Journal describes the
Boeing complaint saying:
After 17 months and $2 billion, the NLRB sandbags Boeing.
The editorial continued:
There are plentiful legal precedents to give business the
right to locate operations in Right to Work states. That
right has created healthy competition among the states and
kept tens of millions of jobs in America rather than
overseas.
An opinion editorial by Steven Pearlstein in the April 26 Washington
Post is even more telling. Although Mr. Pearlstein was, not
unexpectedly, somewhat supportive of big labor and the NLRB's actions
in this case, he nevertheless acknowledged that:
[i]f the agency prevails and is able to force Boeing to
open an additional production line
[[Page S2704]]
for its new 787 Dreamliner in Seattle, it could finally put a
brake on the steady flow of manufacturing jobs to right to
work states in the South.
Pearlstein hits it on the head here. The decision to file this
complaint is an attack on business-friendly States that are attracting
companies and creating jobs. It is an effort by Washington Democrats
and career bureaucrats to force unionism on the entire country. Yet, in
my view, Pearlstein does not adequately state the radicalism of the
NLRB's position.
The fact is, if the NLRB--doing the bidding of the International
Association of Machinists and Aerospace Workers--prevails, it will give
them the right to dictate business location decisions everywhere, even
in non-right-to-work States.
There is a great deal of misinformation coming from those who support
the NLRB's actions. In this article, Pearlstein inaccurately describes
Boeing's new manufacturing facility in South Carolina as a runaway
shop. Boeing had no legal obligation to locate any and all new work in
Puget Sound. It was not obligated, under any collective bargaining
agreement, to keep the work there. It simply chose to locate new work
and new expansion in a business-friendly, right-to-work State. Is that
a runaway shop? I think not, and I think most everybody would think
not.
Apparently, the NLRB agrees with me because the complaint does not
allege that this was a classic runaway shop. In those situations,
bargaining unit work that is contractually obligated to be performed by
members of the union is shut down unilaterally by management. Employees
are laid off, and the company stealthily slips out of town with little
or no notice, only to reopen in a new location to perform the exact
same work on a union-free basis. Under the law, that is wrong.
The NLRB makes no such allegations because that is not what happened
in this case. Instead, the complaint falls back on the broad, catchall
argument that Boeing's actions were inherently destructive of union
workers' section 7 rights, referring to the rights protected by section
7 of the National Labor Relations Act which, in this case, means the
right to strike. If that theory were to apply to all cases such as this
one, if companies cannot factor labor conditions into decisions
regarding new operations without it being inherently destructive of
section 7 rights, there is no logical end to what private decisions can
be overruled by the NLRB.
This is an agency run amok and trying to take the place of this
Congress.
Fortunately, the legal precedents dealing with this type of decision
do not support the acting general counsel's interpretation in the
Boeing complaint. The cases cited in the complaint are all
distinguishable. Not one of them deals with fact patterns involving new
work because there is nothing unlawful about opening a new facility to
perform new work that is not obligated under an existing collective
bargaining agreement.
Put simply, this is just another effort on the part of the union-
packed Obama NLRB to undo years of legal precedent to satisfy big
labor. If Boeing's actions are inherently destructive of the union's
rights, where is the antiunion discrimination? Once again, not a single
union worker lost a job or even lost an hour of work as a result of
Boeing's business decision.
Let's be perfectly clear. Boeing workers in the State of Washington
actually gained new work and gained 2,000 new jobs following the
decision in 2009. These jobs are among the best paid in America. Does
that sound like anti-union discrimination? Of course not.
This was not a stealth move in the dark of the night. No one was
surprised or caught off guard. The machinists' union knew Boeing was
building a new facility in South Carolina. Boeing had even discussed a
new location with them. Workers knew about Boeing's plans as well and
so did the NLRB. But before issuing his complaint, the acting general
counsel stewed for 17 months, while new facilities were being
constructed at great expense in South Carolina, at a cost of billions
of dollars, and workers were hired to run the assembly lines.
It goes without saying that if Carolina workers wanted a union, they,
similar to any other private sector employees in South Carolina or any
other State, could file a petition with the NLRB for a union
representation election. There was no evidence--zero evidence--of anti-
union discrimination by Boeing to any union petition or union
representation election. But--and I can't stress this enough--the most
important factor is, the work in South Carolina was new work which
Boeing was not obligated to perform in the State of Washington under
its collective bargaining agreement. Boeing simply decided, for sound
business reasons, to open a new facility to perform new work in a
business-friendly State. This is something businesses can do all the
time and do do all the time; that is, they used to do it all the time
before President Obama's acting general counsel and the might of the
Federal bureaucracy, under the heavy-handed control of big labor,
decided to step in and interfere with Boeing's decision. If this
complaint is upheld and this interpretation becomes the new status quo,
who knows how it will impact businesses in the future?
Every citizen in South Carolina and every Member of Congress--
Republican or Democratic--ought to be outraged by the National Labor
Relations Board's decision and action. To borrow from Frank Sinatra, if
they can do it there, they can do it anywhere. If the NLRB can do this
in South Carolina, disrupting business and killing jobs, it can happen
anywhere, including Utah or any other right-to-work State. It can
happen even in non-right-to-work States as well.
But the most appalling part about this complaint is not the NLRB's
borderline frivolous interpretation of the law. No, it is the remedies
the agency is seeking. After asserting that Boeing unlawfully
transferred bargaining unit work to South Carolina, the acting general
counsel--a career NLRB bureaucrat who, throughout his government legal
career, has never been responsible for making a single entrepreneurial
decision or creating a single job--sought an order stipulating that
Boeing's work on the 787 Dreamliner could not be performed in South
Carolina and would have to be moved back to the State of Washington.
Well, not back; it would have to be moved to the State of Washington.
This is a new business.
As is typical in these cases, the Boeing complaint will surely be
subject to lengthy litigation, while Boeing's foreign competitors
eagerly seek to supplant Boeing's business orders. Even if Boeing
ultimately prevails in the litigation battle, it could lose the
business war to fierce global competition. That is stupid to put them
in this position.
The Machinists know that and so does the NLRB.
Might I remind supporters of the NLRB that justice delayed is justice
denied. Here, the longer the wheels of justice turn, the worse it is
for Boeing's business and the worse it is for American jobs and
prosperity.
Delay does not favor Boeing, but it plays right into the hands of its
global competitors, as well as the Machinists Union and President
Obama's acting general counsel at the NLRB, who, it seems, would force
the company into accepting a settlement that cements an untenable
business decision in law.
This is no less than economic warfare being waged by the NLRB on
behalf of President Obama's friends--the labor unions--against Boeing,
against the workers in South Carolina and all South Carolinians, and
against all the 22 right-to-work States across the country. It may even
be against the rights and the privileges and the benefits of the people
in Washington because if Boeing, to be competitive, has to move
offshore, they are going to lose their jobs. In the end, it is economic
warfare by the Obama administration against all business friendly
States and against capitalism and free enterprise everywhere.
I am not the only one saying this. I note, for example, that the
attorneys general in nine States across the country--Nevada, Virginia,
Texas, Georgia, Arizona, Oklahoma, Alabama, Florida, and South
Carolina--have written to Mr. Solomon asking that the Boeing complaint
be withdrawn.
Their April 28 letter states:
This complaint represents an assault upon the
constitutional right of free speech, and the ability of our
states to create jobs and recruit industry. . . . The only
justification for the NLRB's unprecedented retaliatory action
is to aid union survival. Your action seriously undermines
our citizens' right to work as well as their ability to
compete
[[Page S2705]]
globally. Therefore, as Attorneys General, we will protect
our citizens from union bullying and federal coercion. We
thus call upon you to cease this attack on our right to work,
our states' economies, and our jobs.
Editorials from newspapers across the country have criticized the
Boeing complaint. Even the Seattle Times wrote in an April 22
editorial:
This page regretted Boeing's decision, but has never
thought of it as something that could be, or should be,
reversed by the federal government.
The article continues, saying:
[T]he National Labor Relations Board has labeled Boeing's
decision an unfair labor practice, and is asking a federal
court to order the line to be moved to Washington . . . we
would celebrate the day Boeing decided to do that--but it is
Boeing's decision.
Later the same editorial concluded:
The company has the right to build assembly plants. It can
build them in South Carolina or in Afghanistan if it likes.
Its decision may be unwise, but it is Boeing's.
These same sentiments were expressed in the President's hometown
newspaper. A Chicago Tribune editorial on April 22 described the NLRB
acting general counsel's actions a ``gross intrusion.'' The editorial
continued:
Boeing, the Chicago-based aviation company, already has one
government-induced headache. Its main rival, Airbus SAS, has
received from European nations about $20 billion in subsidies
that are prohibited by international trade agreements. That
is challenging enough for Boeing as it tries to compete in an
international market. But when the U.S. government tries to
dictate where Boeing can do business . . . that's even harder
to stomach.
The Tribune editorial concluded:
The disastrous, unintended message to a major U.S.
employer: Keep your mouth shut and find another country to do
business.
The Detroit News has the President and his pro-union administration
pegged. About this decision, the editors wrote:
President Barack Obama has made conciliatory sounds seeking
to reassure business, but the actions of the NLRB illustrate
the real face of his administration. Congress ought to hold
hearings on reining in the NLRB.
So if the NLRB's complaint is so transparently awful, what is this
all about? Let's see. An unfair decision comes late in the game. It
threatens to destroy rather than create jobs, and it is based on
specious legal reasoning. Rest assured, the issue is not jobs. The
issue is union jobs, and the issue is not better pay for workers. The
issue is about money in the union coffers. Ultimately, the issue is
about the 2012 elections, because money in union coffers means money
for Democratic candidates.
The International Association of Machinists Union is important to
President Obama. It endorsed him and contributed substantial resources
to his campaign. While President Obama could not deliver on such
legislative initiatives as the Employee Free Choice Act, he appears
determined that every level of government--especially at the National
Labor Relations Board--will be turned in the union's favor.
The contempt for the American people on display in this decision is
astounding. The President and congressional Democrats were unable to
enact the Employee Free Choice Act, even with supermajorities in
Congress. That is the card check bill. But not to worry. Just have some
bureaucrats do it for them. Since the Congress could not act, why not
have these bureaucrats usurp Congress's position and do it for them?
Keep this episode in mind next time we hear progressives talk about
the need for enlightened administration. Keep it in mind when we hear
progressives--liberals--claim the President is just interested in doing
what works and that he is not ideological.
Progressives ultimately have little respect for the rule of law or
for the people themselves.
For all their talk about nonpartisanship and doing what works, what
they promote is a supposedly enlightened bureaucracy that, in fact,
will push liberal policies, regardless of what the people want.
Progressives are to nonpartisanship as Donald Trump is to subtlety.
Ultimately, progressives are as partisan as they come, and they push
their liberalism through a vast and permanent bureaucracy that plods
along day after day, largely out of sight of the American people, who
would never elect representatives who would actually promote this
leftist, antibusiness agenda. When former Speaker of the House Nancy
Pelosi said elections should not matter as much as they do, this is
what she meant. Liberalism should advance no matter what the people of
this country actually desire. The foot soldiers who will advance the
causes of progressive leftism day in and day out are the unelected and
largely unaccountable bureaucrats that churn out page after page of
regulation and infiltrate the decisionmaking process of every business,
no matter how small the decision or how small the business.
Which brings me to the NLRB's acting general counsel.
How did he even wind up in a position to cause this level of economic
mayhem? Not under the established procedure for appointing an interim
general counsel under section 3(d) of the National Labor Relations Act,
which provides very clearly as follows:
In case of vacancy in the office of the General Counsel the
President is authorized to designate the officer or employee
who shall act as General Counsel during such vacancy, but no
person or persons so designated shall so act (1) for more
than forty days when the Congress is in session unless a
nomination to fill such vacancy shall have been submitted to
the Senate, or (2) after the adjournment sine die of the
session of the Senate in which such nomination was submitted.
President Obama ignored the clearly established statutory procedure
for appointing an acting general counsel under the National Labor
Relations Act and instead made Mr. Solomon his personal acting general
counsel under the more generous terms of the Federal Vacancies Act,
which is intended to apply to government vacancies in general.
Even if he is technically authorized to do so, the President should
not use the Vacancies Act to supplant or displace specific statutory
procedures for appointing Federal employees to vacancies where, as here
under the National Labor Relations Act, the organic law is perfectly
clear as to the intended process.
Why did President Obama make the appointment under the Vacancies Act
rather than follow the more preferred and traditional procedure
provided under the National Labor Relations Act? The answer is pretty
simple.
Under the Vacancies Act, Mr. Solomon is allowed to stay in the job in
an acting capacity, without Senate approval, for an initial 210 days--
rather than the 40 days provided under the National Labor Relations
Act--and then be reappointed again for another 210 days, and a third
time for yet another 210 days, until the end of President Obama's term.
This is yet another example of the President end running the law in
order to ensconce in office individuals who would have a difficult time
surviving the constitutionally required confirmation process--a process
that ensures the people and their representatives have some meaningful
oversight of the appointee.
So why did no one complain about this appointment before now? I
suppose some should have. I suppose after the battle over the
nomination of AFL-CIO and SEIU Associate Counsel Craig Becker to the
NLRB, many were convinced they could do a lot worse than having a
career NLRB civil servant serve as acting general counsel. I am not so
sure anyone feels that way now. In fact, in light of his recent
actions, including the Boeing complaint, it is hard to conceive of a
worse choice for acting general counsel.
That decision should be revisited. That is why I am writing to
President Obama to request that he withdraw the appointment of Mr.
Solomon.
As far as President Obama's nomination of Mr. Solomon for a full term
as general counsel is concerned, it is difficult to imagine how Mr.
Solomon could ever be confirmed by the Senate, in view of his actions
while serving as acting general counsel.
Government actions such as the ones we have seen with the Boeing
complaint are debilitating to our economy at a time when we are
struggling to recover from one of the Nation's worst recessions since
the Great Depression. Such bureaucratic decisions cost jobs at a time
when we are struggling to reduce unemployment. They delay business
decisionmaking and interfere with competition. They undermine business
confidence in government.
Why should companies invest in expanding business in the United
States
[[Page S2706]]
if, with the drop of a hat, a Federal bureaucrat can simply reverse
that decision and destroy that investment?
At this point, we are left scratching our heads. Why would the acting
general counsel do this outrageous act? Unfortunately, the answer
appears to be that the decision to issue the complaint was a political
one designed to placate an important ally of the President's--organized
labor. That answer, while unacceptable, is the only logical answer.
As the April 21 Wall Street Journal concluded:
Beyond labor politics, the NLRB's ruling would set a
terrible precedent for the flow of jobs and investments
within the United States. It would essentially give labor a
veto over management decisions about where to build future
plants.
That must never be allowed to happen. The NLRB should withdraw the
Boeing complaint.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call
the roll.
The legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Brown of Ohio). Without objection, it is
so ordered.
Mr. SESSIONS. Mr. President, I understand that maybe there is an
agreement that another Member will speak at 11, so I will yield at that
time.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
____________________