A Mitt Romney ad running in South Carolina distorts the truth by claiming that the National Labor Relations Board told Boeing Corp., “You can’t build a factory in South Carolina because South Carolina is a right-to-work state.” That misstates the facts. The NLRB’s acting general counsel actually dropped the case. And South Carolina’s right-to-work law wasn’t the focus of the now-dismissed complaint. The acting general counsel had claimed Boeing was punishing workers in another state for union activity.
The NLRB complaint against Boeing, which was dropped last month, became a political rallying point for Republicans who claim the Obama administration unfairly stacks the deck for unions.
In the campaign ad released Jan. 4, Romney stands before what looks to be a group of workers on a factory floor.
Romney, Jan 4: You’re seeing a president adopt policies which affect our economy based not upon what’s right for the American worker but instead what’s right for their politics. The National Labor Relations Board, now stacked with union stooges selected by the president, says to a free enterprise like Boeing, ‘You can’t build a factory in South Carolina because South Carolina is a right-to-work state.’ That is simply un-American. It is political payback of the worst kind. It is wrong for America and it is something that will stop under my administration.
On April 20, 2011, the acting general counsel of the NLRB, Lafe Solomon, issued a complaint against Boeing alleging that it had violated federal labor law when it transferred a production line for the 787 Dreamliner aircraft from a union facility in Washington state to a non-union facility in South Carolina. South Carolina is a right-to-work state, which means it prohibits the requiring of union membership, or the paying of union fees, as a condition for employment.
The Machinist union in Washington state had engaged in strikes in 1977, 1989, 1995, 2005 and 2008, and the complaint alleged the move by Boeing was retaliatory punishment by the company for those strikes.
According to the complaint, Boeing executives ran afoul of federal labor laws when they “made coercive statements to its employees that it would remove or had removed work from the unit because employees had struck and (Boeing) threatened or impliedly threatened that the unit would lose additional work in the event of future strikes.”
The NLRB withdrew the case on Dec. 9, 2011, at the request of the Machinists union, after the union resolved its dispute with Boeing and signed-off on a four-year collective bargaining agreement.
William B. Gould IV, chairman of the National Labor Relations Board during the Clinton administration, wrote in a Dec. 16, 2011, op-ed in the New York Times that he believes the complaint against Boeing was “legally flawed.”
“It’s perfectly appropriate for a company to want to locate its firm where it doesn’t get strikes,” Gould, now a law professor at Stanford, explained to us in a phone interview. “Companies do that all the time.”
But Romney’s statement about the case is “factually erroneous,” Gould said.
“The legal theory [behind the complaint] has nothing to do with Romney’s characterization of it,” Gould said. “The Boeing complaint has nothing to do with South Carolina’s right-to-work status. It is predicated upon the general counsel’s view that the company threatened and did move operations to South Carolina because of strikes in the state of Washington.”
The complaint states that the NLRB “does not seek to prohibit (Boeing) 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.”
There’s another technical fault with Romney’s claim. Romney said the decision to pursue the case was made by “the National Labor Relations Board, now stacked with union stooges selected by the president.”
Many of Obama’s critics have complained about him nominating pro-union members to the board, resulting in confirmation standoffs with Senate Republicans. In his op-ed, Gould said Obama shares part of the blame for the current impasse due to his efforts “to install partisan stalwarts on the board, as his predecessors did.”
But the complaint never actually reached the NLRB. It was initiated by the NLRB’s acting general counsel, Lafe Solomon, who operates independently of the board. The case was before an NLRB administrative law judge in Seattle at the time it was withdrawn. If the judge had ruled, and the ruling had been appealed, only then would the case have made its way before the NLRB, said Nancy Cleeland, a spokeswoman for the NLRB.
However, Solomon was also appointed by Obama. A career NLRB attorney, Solomon was named acting general counsel by Obama in June 2010. Obama’s nomination of Solomon to serve as general counsel (instead of “acting general counsel) was sent to the Senate on Jan. 5, 2011. In November, Romney called for Solomon to be fired over emails he had sent, some of which included jokes related to the Boeing case. Solomon was not fired.
– Robert Farley