NLRB to Boeing: Shut up!

Every American should be afraid when their government tells them to keep their mouths shut. This is especially true when the subject relates to a matter of national public policy.

On Monday, Lafe Solomon, acting general counsel of the National Labor Relations Board (NLRB), seemed to forget about the right to free speech when he essentially told Boeing, and all other commentators, to shut it.

In 2009, Boeing made a rational business decision regarding the placement of one of its new production facilities. It decided to open a new plant in South Carolina, a right-to-work state. The NLRB claims that Boeing decided to locate the new facility in South Carolina as retaliation for past union strikes in Boeing’s Washington State locations. This ignores the fact that in the meantime Boeing has added over 2,000 employees to its Washington State locations.

The unions are unhappy with the Obama administration for several reasons. As a result, the administration needs to find ways to keep them happy. While unions spent tens of millions of dollars to get Obama elected, only a few union wishes have been realized. Since political opposition makes the passage of high-profile legislation like the so-called Employee Free Choice Act impossible, the administration has resorted to below-the-radar ways to appease its union supporters. Enter the NLRB.

The administration has stacked the NLRB with union operatives. The president used the recess appointment process to place Craig Becker, the former associate general counsel for the SEIU and AFL-CIO, on the board. With Mr. Becker in office, the board has embarked on an activist stint with the apparent intention of making labor laws and regulations more favorable to unions.

Having seen that the NLRB’s case against Boeing is weak and that the board’s position is being destroyed in analysis by anyone who has taken a serious look at the matter, Mr. Solomon, in a rather snippy letter to Boeing general counsel Michael Luttig, complained about the press coverage, saying, “We hope all interested parties respect the legal process, rather than trying to litigate this case in the media and public arena.” In other words, “keep your mouth shut.” The hypocrisy here is hard to miss given the board’s propensity to issue press releases anytime doing so will further its positions. This is case of “do as I say, not as I do.”

Boeing and all other commentators have a First Amendment right to speak freely, and all should continue to exercise that right. The fact that a high-ranking government official is telling a company and the rest of the public to shut up should send chills down everyone’s back. This type of attempted prior restraint is unacceptable in all but the most extreme circumstances, i.e., falsely yelling “fire” in a crowded building.

Since Mr. Solomon is an attorney, he could do well to take a refresher course on First Amendment law. Perhaps a continuing legal education class on the issue would be helpful for him.

In the meantime, he and all other similarly situated officials should take a step back and remember that preserving our constitutional rights is more important than saving the NLRB’s board members from suffering embarrassment as their position is taken apart by public inspection.

Bill Wilson is President of Americans for Limited Government, a non-profit dedicated to smaller government.

  • DrG

    There is some serious right wing Chicken Little action going on here. Lafe told Boeing to shut up? Forgot about the right of free speech? Telling companies where to practice business? You’all need a reality check.

    First, the personal attacks on Lafe Solomon are unfair and inappropriate. Lafe is a stand up guy, who is very respectful of the law. He headed the Board’s election union for years, and served Democratic and Republican administrations and Boards. The previous Republican GC (Meisburg) was also a stand up guy and very respectful of the law. In issuing the complaint, Lafe like Meisburg before him is constrained by all kinds of legal and administrative constraints. There isn’t alot of room for discretion.

    Second, this is a complaint. It is the unfair labor practice equivalent of a criminal charge. It begins a process, during which Boeing will have the right to speak and defend itself all along the way. The complaint will go to a hearing, where Boeing can speak in opening statements, introduce evidence and witnesses, and have closing statements. Boeing can speak in the hearing and argue in its briefs. And it can appeal the ruling of the administrative law judge if it loses, to the Board, the Circuit and the Supreme if it wants.

    Boeing has not had any 1st Amendment right impinged or limited. Whther you like it or not, the National Labor Relations Act is Constitutional, and the powers that Lafe exercised were given to the Agency and his office by Congress. They have been in place for decades. The power of Lafe, Meisburg and other CGs to issue complaints is also used agains labor unions when they commit unfair labor practices. It is not a partisan or novel action.

    Whether you like it or not, the Courts and our Congress have held the NLRA Constitutional. Free speech is not absolute, it is controlled by law. Just as union agents cannot threaten voters during Board election campaigns, employers cannot make threatening statements. And just as union threats of physical coercion can distort an election (and would void the election it under Board law), employer threats to move plants if workers unionize or if they strike, can impact elections and chill the worker’s right to strike.

    And again, whether you like it or not striking is Constitutionally protected freedom of assembly, and no one, not employers or anyone else, may coercively deprive workers of that right. The issue here is whether there was enough evidence in the record to warrant a complaint alleging that Boeing moved work to punish or prevent strikes. Like it or not, doing that isn’t legal. And the law isn’t new or political.

    The Board, whether the Bush Board or any other, gives employers wide latitude to move work. The law recognizes that employers may have good economic reasons to move work from state to state. So if an employer determines that producing planes in SC is cheaper than producing them in Washington, it can move.

    At its hearing, Boeing will have an opportunity to make this argument. The law in this area applies a burden shifting test. The CG will make the case for a ULP finding. They will argue and try to show Boeing moved to punish or undercut the union. Boeing will them counter, arguing that it had valid business reason for the move. The GC will then try to rebut. If the judge believes Boeing moved for economic and not union busting reasons, it will win.

    So in reality, this complaint doesn’t tell anyone to do anything. It doesn’t deprive Boeing of free speech. It doesn’t prevent or chill businesses from moving state to state for business reasons. In fact, all along the process Boeing can speak out, argue it had business justifications, and counter the charge.

    Finally, the Chicken Little hyperbole aside, the outcry over the Board is very crybaby and whiney. The Board is somewhat politicized, particularly in high profile cases. In the Bush years, it leaned toward employers, during the Obama years, it has leaned toward employees and unions. This isn’t news to you. You had 8 years of the Board helping your side. Stop freaking out and acting like babies when it leans in the other direction. That is reality in our system.


    PS – Your freaking out over Becker reminds me of similar Chicken Little on the left over Kirsanow. The unions freaked at his nomination, believing he would be an extremist like Breen or Schaumber, and he wasn’t. In my time at the Board, Kirsanow, like Meisburg before him, was a very fair and even handed Board member in his handling of cases. The left was wrong about him.

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  • taz

    If this stupidity continues businesses like Boeing will look upon this great country as a unfavorable business environment and promptly take their production factories overseas, where the darn government does not interfere in “business decisions.” It’s sad when the President of the United States fail to see the conflict in interest when he appointed Mr. Becker to the NLRB. I’m on Boeing’s side they should be able to pick up an move wherever they want, if it makes good business sense!

  • Texasron

    Recent reports indicate that young people are leaving New York because of high taxes. Will the NLRB just refuse them their right to leave the state? Isn’t this similar to the NLRB telling a company where to practice their business?

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