Krauthammer Falsely Claims “A Partisan Regulatory Board” “Stacked With Democrats” Pushed Case Against Boeing

Krauthammer: The National Labor Relations Board Is “Stacked With Democrats” And “Retaliating Against” Boeing For “Choosing Right-To-Work South Carolina.” From Krauthammer's Washington Post column:

But Democratic fealty to unions does not stop there. Boeing has just completed a production facility in South Carolina for its new 787 Dreamliner. The National Labor Relations Board, stacked with Democrats -- including one former union lawyer considered so partisan that he required a recess appointment after the Senate refused to confirm him -- is trying to get the plant declared illegal. Why? Because by choosing right-to-work South Carolina, Boeing is accused of retaliating against its unionized Washington state workers for previous strikes.

[...]

Moreover, the idea that a company in a unionized state can thus be prohibited from expanding into right-to-work states by a partisan regulatory body is quite insane. It violates the fundamental principle in a free-market economy that companies can move and build in response to market conditions, rather than administrative fiat. It jeopardizes the economic recovery, not only targeting America's single largest exporter in its attempt to compete with Airbus for a huge global market, but also threatening any other company that might think of expanding in any way displeasing to unions and their NLRB patrons. [The Washington Post, 6/16/11]

• Specifically, Krauthammer Falsely Accuses NLRB Member Craig Becker Of Bringing Case Against Boeing. In the on-line version of Krauthammer's Washington Post column, the words “including one former union lawyer considered so partisan that he required a recess appointment after the Senate refused to confirm him” are hyperlinked to an article that reports on Obama's decision to use a recess appointment to place Craig Becker on the National Labor Relations Board. [The Washington Post, 6/16/11; The Washington Post, 3/28/10]

Krauthammer Previously Claimed Obama Is “Paying Off The Unions,” Which “Is More Important [To Him] Than A Healthy Export Economy.” [Fox News, Special Report, 6/14/11, via Media Matters]

The Case Was Brought Not By Obama Or NLRB Board Members But By An Independent General Counsel

Complaint Against Boeing Was Brought On Behalf Of The NLRB Acting General Counsel, Who Is “Independent From The [NLRB].” The complaint against Boeing was not brought by Becker or any other NLRB board member. Rather, it 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's 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 6/21/11]

Federal Law Gives Independent General Counsel “Final Authority” Over “Investigation Of Charges And Issuance Of Complaints.” From the National Labor Relations Act:

There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than administrative law judges and legal assistants to Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board [29 U.S.C. § 143, accessed 000-.html">6/21/11, via Law.Cornell.edu]

NLRB's Acting General Counsel Solomon Is A Career Civil Servant Who Has Worked For Republican Members Of 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. Half of the board members for whom Solomon worked are identified by the NLRB's website as Republicans. [NLRB.gov, accessed 6/21/11; NLRB.gov, accessed 6/21/11]

NLRB General Counsel's Complaint Does Not Aim To Prohibit Boeing From Moving To A “Right-To-Work” State

The Complaint Specifically Says Boeing Is Free To Make “Non-Discriminatory Decisions” About “Where Work Will Be Performed.” Contrary to Krauthammer's claim that the complaint seeks to prohibit Boeing from “expanding into right-to-work states,” the complaint states 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]

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]

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 6/21/11]

Krauthammer Suggests Obama Has Given “Tacit Approval” To Action Against Boeing

Krauthammer: “Obama Has Been Utterly Silent In The Boeing Affair” Because “Democrats Need Unions.” From Krauthammer's Washington Post column:

Obama has been utterly silent in the Boeing affair. Which is understood by all as tacit approval. He's facing reelection next year. And Democrats need unions.

Of course, unions need Democrats -- who deliver quite faithfully. In last year's nationwide “shellacking” of Democrats, for example, Wisconsin gave Republicans control of both legislative chambers and elected a Republican governor who made clear his intention to rein in public-sector union power. [The Washington Post, 6/16/11]

White House Has Said That Obama Will Not Comment On Matter Before An Independent Agency

WH Press Secretary: “We Do Not Get Involved In Particular Enforcement Matters Of Independent Agencies.” In response to a question on whether President Obama is “aware of the [NLRB Boeing] issue,” White House Press Secretary Jay Carney said: “Well, it's obviously been in the news, so we are aware of it, but I would refer any questions about it to the NLRB because it is an independent agency, and we do not get involved in particular enforcement matters of independent agencies.” From the May 11 press briefing:

Q Boeing CEO Jim McNerney, who chairs the President's Export Council, said the National Labor Relations Board suit against his company for building a plant in a right-to-work state is a fundamental assault on capitalism. I'm wondering is the President aware of the issue, and does he think the government should be involved in how businesses allocate capital or resources?

MR. CARNEY: Well, it's obviously been in the news, so we are aware of it, but I would refer any questions about it to the NLRB because it is an independent agency, and we do not get involved in particular enforcement matters of independent agencies.

Q The President has weighed in on outside issues before, though. I mean is this something -- it's also coming from someone who is chairing the Export Council, who's saying this is hurting job creation.

MR. CARNEY: I don't have a reaction to this from the President. And I think the fact that he's weighed in on outside issues doesn't mean that he will weigh in on an independent agency's enforcement action.

And on the broader point about capitalism and our support for it, I just want to remind you that yesterday General Motors announced that it would hire 4,200 workers at 17 of its plants around the country. It announced a $2 billion investment.

This is an industry that was on its back when the President took office, and he made a very unpopular decision to do what he thought was the right thing, which was to save the American auto industry, and to do it in a way -- to put taxpayer money on the line to save that industry, but to make sure that in taking that action, that the companies involved would restructure themselves in a way that would make them what they have become, which is profitable, successful leaders in the automotive industry.

And I think another thing I would point out is that -- very encouraging news -- there was from the American Enterprise Institute, a blog post by Mark J. Perry, professor of economics and finance in the School of Management at the Flint Campus of the University of Michigan, in which he describes: “The impressive rebound in U.S. manufacturing. That rebound is shown by 7 percent growth in manufacturing in 2010, and 9 percent in the first quarter of 2011, as well as the fact that more manufacturing jobs were created in the first four months of this year than in any year since 1984.” I think that's a very positive sign for our economy. [WhiteHouse.gov, 5/11/11]

And Congress Tasked The Independent NLRB With Deciding Cases Of Alleged Labor Law Violations

The NLRB's General Counsel Has Charged Boeing With Being In Violation Of Section 7 Of The National Labor Relations Act. In its case against Boeing, the NLRB general counsel's office has charged Boeing with violating Section 7 of the National Labor Relations Act, which the NLRB was designed to enforce. From paragraph 7 of the general counsel's complaint against Boeing:

(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 or 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 to the rights guaranteed employees by §7 of the Act. [The Boeing Company NLRB general counsel's office complaint, 4/20/11]

• National Labor Relations Act Gives Employees “The Right To ... Join Labor Organizations” And “Engage In Other Concerted Activities.” From Section 7 of the National Labor Relations Act (codified as Section 157 of Title 29 of the U.S. Code):

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a)(3) of this title. [29 U.S.C. § 157, accessed 000-.html">6/21/11, via Law.Cornell.edu]

The NLRB, Not The President, Was Given The Power To Uphold Section 7 Of The National Labor Relations Act. According to Section 8 of the National Labor Relations Act, which established the NLRB and defines its duties, the NLRB is given the task of upholding Section 7 of the act. From the National Labor Relations Act:

§ 158. Unfair labor practices

(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer --

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 156 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159 (a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159 (e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter;

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title. [29 U.S.C. § 158, accessed 000-.html">6/21/11, via Law.Cornell.edu]

NLRB Is Also “Empowered” To “Prevent Any Person From Engaging In Any Unfair Labor Practice.” From the National Labor Relations Act:

(a) Powers of Board generally

The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise: Provided, That the Board is empowered by agreement with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manufacturing, communications, and transportation except where predominantly local in character) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this subchapter or has received a construction inconsistent therewith. [29 U.S.C. § 160, accessed 000-.html">6/21/11, via Law.Cornell.edu, emphasis original]

Like The General Counsel, The National Labor Relations Board Also Functions As An Independent Agency. From the NLRB's website:

The National Labor Relations Board is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions. [NLRB.gov, accessed 6/21/11]