[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.

                          ____________________