Fox's Ablow Claims NLRB Boeing Case Is “The End Of Freedom In America”

Keith Ablow: The NLRB Boeing Case “Is The End Of Freedom In America.” During the June 14 edition of Fox Business' America's Nightly Scoreboard, Fox's Keith Ablow, a psychiatrist and member of Fox News' “Medical A-Team” said of the Boeing case: "[Unions] are defending their turf. That is what unions do. They want to line their pockets, they want to represent their members often to the exclusion of looking at, again, reality. You have to have a business in order to employ anyone." Ablow later added: “This is the end of freedom. This is the end of freedom in America.” When Fox News contributor Alan Colmes responded that Ablow's statements were “outrageous scare statements” and “crazy,” Ablow responded: “They are not crazy at all.” [Fox Business' America's Nightly Scoreboard, 6/14/11]

Complaint Alleges Boeing Violated The Rights Of Unionized Workers In Washington State

Complaint Alleges Boeing CEO Said He Was “Moving The 787 Dreamliner Work To South Carolina Due To 'Strikes Happening Every Three To Four Years' ” In Washington State. From the complaint against Boeing filed by the NLRB general counsel's office:

[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 Unlawfully Decided To Transfer 787 Production To SC Because Washington State Employees “Engag[ed] In ... Lawful Strikes” And To “Discourage” Such Activity In The Future. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

NLRB Case Is Part Of “A Very Long Line Of Cases...NLRB Has Been Pressing Since The 1940s”

Labor And Employment Law Professor Fisk: Complaint Against Boeing Is Part Of “A Very Long Line Of Cases That The NLRB Has Been Pressing Since The 1940s.” In a telephone conversation with Media Matters, University of California-Irvine Chancellor's Professor of Law Catherine Fisk said that the complaint against Boeing is part of “a very long line of cases that the NLRB has been pressing since the 1940s, when employers began moving work from unionized workplaces in the industrial Northeast to non-unionized workplaces in the Southeast and later the Southwest.” [Phone interview with Media Matters, 5/11/11]

Labor Law Professor Brudney: “If You Undergo A Partial Closing For Anti-Union Reasons, That May Be An Unfair Labor Practice If It Was Done To Chill Protected Union Activity In The Future.” In a telephone conversation with Media Matters, James J. Brudney, the Newton D. Baker-Baker & Hostetler Chair in Law at Ohio State University's Moritz College of Law cited the 1965 Supreme Court case of Textile Workers Union v. Darlington Manufacturing Co. He observed that a company is allowed to go out of business because of union activity, but “if you undergo a partial closing for anti-union reasons, that may be an unfair labor practice if it was done to chill protected union activity in the future.” If done for that reason, under Darlington it would be unlawful under federal labor law. [Phone interview with Media Matters, 5/11/11]

• Supreme Court In Darlington: “A Partial Closing Is An Unfair Labor Practice ... If Motivated By A Purpose To Chill Unionism In Any Of The Remaining Plants Of The Single Employer.” [Textile Workers Union v. Darlington Manufacturing Co., 3/29/65]

NLRB Acting General Counsel: “There Is Nothing Remarkable Or Unprecedented About The Complaint Issued Against The Boeing Company.” In a statement issued by NLRB acting general counsel Lafe Solomon in response to inquiries about the Boeing case, Solomon stated: "[c]ontrary to certain public statements made in recent weeks, there is nothing remarkable or unprecedented about the complaint issued against the Boeing Company." From the May 9 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]

Fox's Napolitano Baselessly Claims Boeing Is Not Getting “A Fair Hearing” From NLRB

Andrew Napolitano: NLRB Boeing Hearing “Is Not A Fair Hearing” Because The Person Suing Them And The Judge “Have The Same Boss,” The NLRB. From the June 14 edition of Fox Business' Lou Dobbs Tonight:

CHRIS COTTER (guest host): One more thing on the NLRB before we get to Wisconsin. The process moving forward now. This hearing is essentially useless because it moves up the chain at the NLRB and the top of the NLRB can basically rule it a different way anyways, and if Boeing loses this case, which they most likely will, they'll sue. On what grounds will they sue?

ANDREW NAPOLITANO (Fox News senior judicial analyst): The will sue on the grounds that they didn't get a fair hearing. Why didn't they get a fair hearing? Because the person suing them, the NLRB, and the person hearing the lawsuit, the administrative judge, have the same boss -- it's called the NLRB. This is not a fair hearing like one sees in a movie, or on television or even in real-life federal courts where you have a truly neutral judge. This is not a neutral judge.

COTTER: So they stand a good chance of winning in court then, in an appeals court afterwards.

NAPOLITANO: They do. They do and the appellate court can overturn the NLRB if it finds the NLRB abused its discretion, misapplied the law, or violated the Constitution. [Fox Business' Lou Dobbs Tonight, 6/14/11]

In Fact, General Counsel Whose Office Brought Boeing Complaint Is An Independent Officer Who Has Worked For Republicans

Complaint Against Boeing Was Brought On Behalf Of The NLRB Acting General Counsel, Who Is “Independent From The [NLRB].” The complaint against Boeing was brought by a National Labor Relations Board regional director on behalf of “the Acting General Counsel of the National Labor Relations Board.” As stated on the NLRB website, “The General Counsel, appointed by the President to a 4-year term, is independent from the Board.” [The Boeing Company NLRB general counsel's office complaint, 4/20/11] [NLRB.gov, accessed 5/19/11]

NLRB's Acting General Counsel Solomon Has Been A Career Civil Servant At The NLRB. Before being named acting NLRB general counsel by President Obama in 2010, Lafe Solomon spent nearly 30 years as a National Labor Relations Board member, working in both the general counsel's office and as a staff member for various board members. From the NLRB's website:

Lafe Solomon, a career NLRB attorney, was named Acting General Counsel by President Obama as of June 21, 2010. The Agency's top investigative and prosecutorial position, the General Counsel has supervisory authority over all Regional Offices and guides policy on issuing complaints, seeking injunctions, and enforcing the Board's decisions.

Mr. Solomon began his Agency career as a field examiner in Seattle in 1972. After taking a break to pursue a law degree, he returned as an attorney in the Office of Appeals. He transferred to the Appellate Court Branch in 1979. Two years later, he left the General Counsel side of the Agency to join the staff of former Board Member Don Zimmerman. He went on to work for another nine Board Members, including Donald Dotson, Robert Hunter, John Higgins, James Stephens, Mary Cracraft, John Raudabaugh, William Gould, Sarah Fox and Wilma Liebman. [NLRB.gov, accessed 6/16/11]

Five Of The Ten NLRB Members For Whom Solomon Worked Were Republicans. According to the NLRB's website, half of the NLRB board members Lafe Solomon has worked for were Republicans, including Donald Dotson, Robert Hunter, John Higgins, James Stephens, and John Raudabaugh. [NLRB.gov, accessed 6/16/11]

One Of The NLRB Members For Whom Solomon Worked Said That “Collective Bargaining Frequently Means ... The Destruction Of Individual Freedom.” Former NLRB board member Donald Dotson reportedly once wrote:

“In both the public and private sectors, the strike has come to mean not merely a concerted withholding of labor, but a concerted effort employing violence, intimidation and political intervention to prevent people who want to work from working.

”In other words, collective bargaining frequently means labor monopoly, the destruction of individual freedom and the destruction of the marketplace as the mechanism for determining the value of labor. An employer's right to replace strikers has been rendered meaningless in most major industries." [Los Angeles Times, 2/13/85]

Another NLRB Member For Whom Solomon Worked Touted So-Called “Right-To-Work” Laws. From a piece co-written by Robert Hunter for the Mackinac Center for Public Policy:

In 21 of the 50 states, it is illegal to force workers to join and pay money to a labor union as a condition of holding a job. Unfortunately, Michigan is not one of these 21 “right-to-work” states, though many Michigan workers undoubtedly would prefer to opt out of their union membership obligations if they could. Thanks to an obscure provision in federal law, however, Michigan workers can choose this “right-to-work” type protection for their own workplaces. [Mackinac Center for Public Policy, 12/6/99]

Administrative Law Judges Are Also Independent From The Board

Federal Law Provides Administrative Law Judges Cannot Be Fired Except For “Good Cause” After A Hearing By Another Agency. Contrary to the suggestion of Fox News' Napolitano, the administrative law judge hearing the Boeing case is not beholden to the NLRB. Indeed, federal law forbids the NLRB from firing, suspending, or reducing pay of an administrative law judge without a finding of “good cause” by the independent Merit Systems Protection Board. From the U.S. Code:

(a) An action may be taken against an administrative law judge appointed under section 3105 of this title by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.

(b) The actions covered by this section are --

(1) a removal;

(2) a suspension;

(3) a reduction in grade;

(4) a reduction in pay; and

(5) a furlough of 30 days or less;

but do not include --

(A) a suspension or removal under section 7532 of this title;

(B) a reduction-in-force action under section 3502 of this title; or

(C) any action initiated under section 1215 of this title. [5 U.S.C. § 7521, accessed 6/15/11, via Law.Cornell.edu]

Fox Pushes Falsehood That Boeing Case Represents “Anti-Right-To-Work” Animus By NLRB

Cavuto Hypes Argument That Boeing Case Is About Hostility To So-Called “Right-To-Work” States. During an interview with Texas Governor Rick Perry, Fox News host Neil Cavuto asked the governor to describe what he “would do if [he] were president” to increase jobs in the United States. In his question Cavuto framed the NLRB Boeing case as an “effort in South Carolina to stop Boeing from hiring 1,000 non-union workers.” Then when Governor Rick Perry described the case as a "[dis]like" of “a right to work state,” Cavuto did not challenge or question Perry. Instead he suggested that “companies across the country” “will be more inclined to hire abroad” as a result of the case. From the June 14 edition of Fox News' Your World with Neil Cavuto:

CAVUTO: An issue that anyone who wants to be president has to deal with is still jobs. Two-and-a-half years in, still not a whole lot of progress on that front. The president saying that he's going to be picking a panel to look into this. Again, a lot of frustrations that it's slow, and now this NLRB effort in South Carolina to stop Boeing from hiring 1,000 non-union workers there. What would you do if you were president facing that?

[...]

PERRY: You just have a president who I think is anti-jobs, and I have no idea why. When you look at the National Labor Relations Board coming into a sovereign state and basically saying, 'you cannot bring this company in to this state because we in Washington, D.C. don't like that you are a right-to-work state.' That is one of the great prostitutions of the United States Constitution ever.

CAVUTO: If they were to succeed, do you fear that -- if the unions were to win, NLRB wins -- do you think companies across the country will be more inclined to hire abroad than to deal with it? [Fox News' Your World with Neil Cavuto, 6/14/11]

Charles Payne: Boeing Case Is “War On Business Type Of Agenda.” Earlier in the episode, Cavuto hosted Fox Business contributor Charles Payne to discuss the economy. Payne characterized the complaint against Boeing as “anti-business, war on business sort of agenda.” Directly following Payne, Cavuto hosted GOP presidential candidate Herman Cain who stated: “Neil, what's at stake is a direct assault on the free market system. What the National Labor Relations Board is doing is absolutely an attack on free enterprise and that's exactly what we don't need.” Cavuto failed to correct or question either Payne or Cain on their interpretation of the NLRB Boeing case. [Fox News' Your World with Neil Cavuto, 6/14/11]

Krauthammer: Obama Is “Paying Off The Unions” Which “Is More Important [To Him] Than A Healthy Export Economy.” From Fox News' Special Report:

CHARLES KRAUTHAMMER (syndicated columnist): It's a way that [Obama] wants to govern left without appearing to govern left.

[...]

KRAUTHAMMER: It's a way to go under and around the legislative system, which I think is in and of itself a travesty that three appointees backed by the union supporters are telling a huge industry where and where it cannot build a factory. This is a president who said he wants to double exports in the next 5 years, which is extremely important to any American economy, and here he is supporting, by his silence, the regulation of where the biggest exporter in our country, the Boeing company, wants to reduce its cost by building in South Carolina so it can compete with Airbus and he's undermining this, and of course, paying off the unions to him is more important than a healthy export economy. [Fox News' Special Report, 6/14/11]

Fox's Napolitano: The “NLRB Is Trying To Block” “New Jobs” In South Carolina. On his Fox Business show, Fox senior judicial analyst Andrew Napolitano stated that the “NLRB is trying to block” “new jobs” in South Carolina. From the June 14 edition of Fox Business' Freedom Watch:

NAPOLITANO: We're joined now by someone who has a dog in this fight South Carolina Attorney General Alan Wilson. It's in his state that Boeing wants to bring new jobs but the NLRB is trying to block.

[...]

NAPOLITANO: It seems to me that the federal government has no absolutely no right whatsoever to tell this corporation that they can't hire people in South Carolina, that they have to hire them in Seattle, Washington. What is the argument that you have made as the defender of the Constitution and as the defender of freedom and as the chief law enforcement officer in the state of South Carolina in behalf of the people that live and want to work there? [Fox Business' Freedom Watch, 6/14/11]

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.” Contrary to the arguments hyped by Fox, 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]

NLRB Fact Check: “The Complaint Explicitly States That Boeing May Place Work Where It Likes.” In response to a number of news outlets “erroneously report[ing]” the Boeing case, the NLRB issued the following fact check stating that “Boeing may place work where it likes” “as long as the decision is not made for discriminatory reasons.” From the NLRB fact check:

Several news outlets have erroneously reported in recent days that the National Labor Relations Board has ordered the Boeing Company to close its operations in South Carolina. [...] In fact, the complaint issued on April 20 by the Acting General Counsel does not seek to have the South Carolina facility closed. It seeks to halt the transfer of a specific piece of production work due to allegations that the transfer was unlawfully motivated. The complaint explicitly states that Boeing may place work where it likes, including at its South Carolina facility, as long as the decision is not made for discriminatory reasons.

In addition, the Board has not yet considered or ruled on the allegations in the complaint. Under the NLRB's statute, the General Counsel and the Board are separate and independent, with the General Counsel functioning as prosecutor and the Board functioning as a court. The case is scheduled to be tried before an administrative law judge, acting under the Board's authority. That decision could then be appealed to the Board itself for its decision. (posted 4/26/11) [NLRB.gov, accessed 6/15/11]