[Congressional Record Volume 157, Number 64 (Wednesday, May 11, 2011)]
[Senate]
[Pages S2859-S2861]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NATIONAL LABOR RELATIONS BOARD

  Mr. HARKIN. Mr. President, recently the National Labor Relations 
Board general counsel issued a complaint against the Boeing Company 
alleging that the company had violated the National Labor Relations 
Act. This routine administrative procedure has set off what I call a 
melodramatic outcry from Boeing, the business community, the editorial 
writers of the Wall Street Journal, the National Chamber of Commerce, 
and, of course, our friends on the Republican side of the aisle.
  A headline in the Wall Street Journal editorial page calls it: ``The 
death of right to work.''
  South Carolina Gov. Nikki Haley declared that it was ``government 
dictated economic larceny.''
  At a press conference held at the Chamber of Commerce yesterday 
morning, Senator DeMint from South Carolina referred to it as 
``thuggery.''
  The senior Senator from Utah warned that foot soldiers of a vast and 
permanent bureaucracy were trying to implement a ``leftist agenda.''

[[Page S2860]]

  One would think this one decision by an administrative arm of an 
independent agency was surely going to bring about the death of 
capitalism in the world today. This has taken on incredible proportions 
in terms of the outcry and the mischaracterization of what has 
happened.
  Instead of talking about how we get Americans working again, get the 
middle class on its feet, our colleagues on the other side of the aisle 
are taking their time on the Senate floor and in press conferences 
downtown attacking the handling of a routine affair--an unfair labor 
practice charge.
  I do not think it is worth the time of the Senate to debate this 
issue. However, because of this huge outcry and the fact that the Wall 
Street Journal has chosen to editorialize on this issue and because of 
the disturbing misinformation that has distorted public discussion of 
this case, I am going to take some time on the Senate floor to try to, 
as they say, set the record straight.
  I have said before this Boeing case is a classic example of the old 
saying that a lie is halfway around the world before the truth laces up 
its boots. I would say, in this case, Senate information travels even 
faster than that. So it is time to set the record straight.
  Here are the facts in the case. It is undisputed Boeing recently 
decided to locate a production facility for the new Dreamliner planes 
in South Carolina. They decided to do that. Many statements were made 
by executives of Boeing, publicly stated, that the decision to move 
there was based in whole or in large part on the fact that there had 
been work stoppages, strikes in the last few years at the Boeing plant 
in Everett, WA. The NLRB's complaint alleges that this decision was 
unlawful retaliation against the Boeing workers in Washington State.
  This has been put into a political context, but let's again be clear 
about how this happens. The National Labor Relations Board is an 
independent agency set up under the Wagner Act 75 years ago. There are 
two branches of the NLRB. One is the Board, the NLRB, the national 
board. It is a five-member board appointed by the President, with the 
advice and consent of the Senate. On the other hand, there are the 
career service people, outside of the General Counsel, the civil 
servants who are not appointed. They are nonpolitical. They carry out 
the day-to-day functions of the National Labor Relations Act. If I may 
say, it is similar to the Food and Drug Administration. The Food and 
Drug Administration has an Administrator appointed by the President, 
with the advice and consent of the Senate, as do a lot of other 
independent agencies. But then there is a civil service side of it that 
is professional--professional people not appointed by the President. 
They have career civil service status.
  The general counsel of the National Labor Relations Board is 
appointed, but the rest of the staff in the area of the career civil 
service. The acting general counsel now has been a civil servant for 30 
years.
  What happens is, a business or a union--it does not have to be them; 
it can be anybody--can file a complaint with the NLRB, alleging that 
certain actions were in violation of the National Labor Relations Act. 
One of the provisions of the National Labor Relations Act says it is 
unlawful for a company to retaliate against workers for a protected 
activity conducted by those workers--protected activity.
  One of the protected activities under the National Labor Relations 
Act is, of course, the right to organize, the right to join a union, 
and, of course, under the Taft-Hartley bill, some years later, the 
right not to join a union if you do not want to, so-called right-to-
work States.
  The protected activity in this case is the right to strike. The 
National Labor Relations Act protects that activity. Organized workers 
in a union have the right to strike. It is a protected activity. A 
company cannot retaliate against workers for exercising that right.
  So if--if, I say ``if''--if the Boeing Company did, in fact, move a 
production line to another State in retaliation against the workers who 
exercised their right to strike in Washington, that would be illegal 
for Boeing to do that--unlawful. I said ``if'' because I am not here 
taking a side in the case. I am not certain where the truth lies. This 
is for the trier of fact and the trier of law.
  When a complaint such as this comes to the National Labor Relations 
Board, they investigate it. The National Labor Relations Board 
investigated, under the general counsel's office, the civil service 
part. They did an investigation. They took affidavits. They talked with 
people to find out whether there was any cause to move forward.
  Again, whether it is right or wrong, I do not know, but this 
independent civil servants decided there was enough evidence for them 
to warrant taking this case to an administrative law judge. That is the 
process. Boeing then can make its case before the administrative law 
judge. The general counsel's office can make its case. The 
administrative law judge then makes a decision. As I understand it, the 
administrative law judge can find for the general counsel, it can 
uphold their theory or it can modify it.
  After that is done, either side can appeal it. That appeal then goes 
from the civil service part over to the National Labor Relations Board. 
After the Board then reviews it, they make a decision. They either 
uphold what the administrative law judge said or they do not uphold it.
  From there, either side can appeal to the circuit court of appeals, 
and from the circuit court of appeals, they can appeal to the Supreme 
Court of the United States. That is the process. That process has been 
followed now for 75 years.
  We follow similar processes in other independent agencies of the 
Federal Government. I mentioned the Federal Food and Drug 
Administration, the Federal Trade Commission. A lot of other 
independent boards and agencies have that same process.
  What has happened now is, many of our friends on the Republican side 
and in the business community have now taken up the hue and cry that 
this process should be interfered with, that this process should 
somehow be stopped politically. I do not think it is our right, our job 
here to interfere in something such as that politically. If my friends 
on the Republican side do not like the provision of the National Labor 
Relations Act which says it is illegal to take retaliation against 
workers for protected activity, if my friends on the Republican side 
want to change that law, offer a bill, offer an amendment. That law can 
be changed. With both bodies--the House and the Senate--and the 
President signing it, we can change it. But it is wrong for, I believe, 
elected officials, such as myself or anyone else, to interfere in that 
process and to cast it as a political decision. But that is what is 
being done by so many Republican Senators and people in the business 
community.
  They have alleged that President Obama was behind this, that somehow 
because he has appointed a couple members of the National Labor 
Relations Board that he is behind this issue. President Obama had 
nothing to do with it. This was a complaint filed by the Machinists 
Union, the International Association of Machinists, with the NLRB. 
President Obama has nothing to do with this whatsoever, and he should 
not have anything to do with it. But, again, people on the Republican 
side are alleging--again, misinformation, misinformation, 
misinformation going out--that somehow this is being orchestrated out 
of the White House.
  Again the facts: The facts are there was a complaint filed. The 
National Labor Relations Board is doing exactly what they have done for 
the last 75 years. It is going to go before an administrative law judge 
and then find out how it works its way through the courts at that time.
  I would ask my friends on the Republican side, if in, fact--if, in 
fact--the Boeing Company did retaliate against workers because of a 
protected activity, do my friends on the Republican side say that 
should be OK? Is that what they are saying; that if workers exercise a 
legally protected right and a company retaliates against those workers 
anyway they ought to be able to do that?
  I can take all kinds of cases. Let's say a company decides to move a 
plant from Southern California to, let's just say Fargo, ND, and the 
reason they state they moved it was because there were too many 
Hispanics working in their plant in Southern California and they didn't 
like that. They wanted to

[[Page S2861]]

move it to Fargo, ND, because there are not that many Hispanics there.
  Guess what, folks. That is illegal. That is illegal. Do my friends on 
the Republican side say they ought to be able to do that in violation 
of all our civil rights laws in this country? Of course not.
  People say: Of course, they can't make that kind of decision based on 
that. They can't make a decision to move a plant where there are more 
men than women so they won't have to hire more women; or less African 
Americans so they don't have to hire more African Americans. We can 
carry this on and on.
  So I hope my friends on the Republican side are not saying a company 
can retaliate and then just walk away without any penalties, without 
even any recourse by the workers to have their cases heard. That is 
what I am here defending. I am defending the rights of the workers in 
the plant in Everett, WA, to have their complaints heard.
  Now, I don't know the facts. I know a little of the law, but I don't 
know the facts. That is for the trier. That is for the administrative 
law judge and the NLRB and the appeals court and the Supreme Court. 
That is their jurisdiction. But for us to say it shouldn't even go 
there; that these workers can't even bring a case--and I might add, 
there are a lot of cases that are filed with the NLRB that don't go 
there because the NLRB investigates; they do their due diligence; and 
they find out there is not even enough evidence to warrant going 
forward.
  So all I can assume is here there was enough evidence to warrant 
going forward. Whether there is enough to actually find that Boeing did 
retaliate, again, I don't know. That is up to the trier of fact--the 
administrative law judge. But I am hearing from these dramatic outcries 
that somehow we are destroying the right to work. This case has nothing 
to do with right to work--nothing--zero. It has nothing to do with 
right-to-work laws. This case has nothing to do with the outcry that 
somehow this is destroying the essence of a business to be able to 
decide, in its best economic interest, where to locate.
  If Boeing wants to open their plant in Timbuktu, they can do that. If 
they want to open a plant in South Carolina, they can do that. What 
they can't do is open a plant someplace in retaliation against the 
workers exercising their legally protected rights; that, they can't do.
  Now, again, this is an evidentiary-type hearing. So the evidence will 
have to come forward as to just what decisions were made, why they were 
made. Quite frankly, there are executives of Boeing who have publicly 
stated--publicly--that one of the reasons they moved was because of the 
work stoppages at the Everett plant--work stoppages, strikes. Is that 
enough evidence? I don't know. Maybe it is enough evidence to warrant 
going forward. Obviously, the general counsel's office decided there 
was.
  I would also point out, Mr. President, the general counsel's office 
in cases such as this works long and hard to try to settle the case--to 
get both sides to settle. I know the general counsel's office in this 
case did try to do that, but they were unsuccessful; therefore, the 
case goes forward.
  So I want to point out again--just to reiterate, Mr. President--this 
is not about doing away with the right-to-work laws. It has nothing to 
do with that. It has nothing to do with interfering with businesses' 
making decisions on where to locate their plants or anything such as 
that. It has nothing to do with that. It has nothing to do with 
destroying capitalism. It has to do with whether workers have a right--
first of all, can they exercise their legally protected rights, and 
then can they make a case to the NLRB they were retaliated against 
because they exercised their legal rights. That is what this case is 
about. That is what this case is about.
  Again, I understand the desire of certain people to raise money for 
political campaigns. I understand that. I understand how one might 
exaggerate things a lot of times in direct mail and in the press. I am 
sure there will be a lot of businesses that will hear: You have to 
contribute to this campaign or that campaign to stop President Obama or 
to stop the National Labor Relations Board from taking your business 
decisions away from you.
  Well, that is misinformation. I know it can be used to raise a lot of 
campaign money, but it is not right. It is not right to deceive and to 
misinform the American people about a basic right that protects middle-
class workers in America. Americans understand fairness, and they 
resent it when the wealthy and the powerful manipulate the political 
system to reap huge advantages at the expense of working people.
  I think I have always been a pretty good friend of the Boeing 
Company. I have been a big supporter of Boeing in so many things, going 
back in my 30 years in the Congress. It is a great company. They 
provide a lot of great jobs for American workers. They build great 
airplanes--better than Airbus, I might say. But it is wrong for them 
now to come in and try to get the political system to undo a legal 
administrative procedure the workers at that Boeing plant have 
instigated and have asked for the NLRB to investigate and to charge 
Boeing with retaliation.
  What is happening in this case is that the powerful and the big are 
trying to manipulate the political system. Powerful corporate interests 
are pressuring Members of this body to interfere with an independent 
agency rather than letting it run its course.
  We should not tolerate this interference. We should turn our 
attention to the issues that matter to American families--how we can 
create jobs in Washington, and, yes, in South Carolina, in Iowa, and 
across the country; how we can rebuild the middle class, how we can 
ensure that working hard and playing by the rules will help rebuild a 
better life for families and for their children. Playing by the rules 
is what the workers did. They played by the rules. They exercised their 
legal rights, and now there is a complaint filed. I say it is wrong for 
us to interfere in that.
  Again, if we don't like the law, if we don't like the administrative 
procedures that undergird this, it can be changed. It can be changed. 
But I daresay we have had 75 years of the Wagner Act--of this process, 
and I will close on this: Sometimes businesses file a complaint with 
the NLRB against a union activity, and that is investigated. That goes 
before administrative law judges, too. So both sides use this.
  I think it is unbecoming for us now to try to turn this into some 
kind of a political maelstrom, a political tornado, when it shouldn't 
be that. Let's let the law and let's let the administrative procedure 
do its job. Then, if corrective action needs to be taken, then it is 
the purview of Congress to deal with it at that time. Not now.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.

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