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Will Congress Stop the NLRB?
We need legislation to confirm that employers can decide where to conduct business.


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Phil Kerpen

The Obama administration appears intent on using back-door means to accomplish every element of the extreme legislative agenda that the American people decisively rejected in the 2010 midterm election. Nearly every agency has been in on the act, but perhaps the most egregious behavior has been that of the National Labor Relations Board (NLRB), which is pursuing not just what was in the failed “card check” legislation, but a frontal assault on the right to work in America. This week, we’ll find out which members of Congress are willing to stand up to this rogue agency.

In a chilling April 20, 2011, complaint, the NLRB’s acting (not Senate-confirmed) general counsel, Lafe Solomon, asked the board to order Boeing to move the second production facility of its 787 Dreamliner — already built in South Carolina at a multibillion-dollar cost — to union-friendly Washington. The case is currently before an NLRB administrative-law judge; the NLRB itself will hear the case on appeal, and the federal court system will handle further appeals.

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This came during a protracted negotiation between Boeing and the machinists’ union, which had been demanding a seat on the board of directors and a so-called neutrality agreement that would allow them to use card check to unionize more Boeing employees.

Factually, the complaint is groundless. “Can you name me a single, solitary worker in Washington State who has lost their job as a result of Boeing’s decision to build a separate, distinct line in Charleston?” Rep. Trey Gowdy (R., S.C.) recently asked in a field hearing on the issue. “Not at this time,” Solomon replied.

But the frivolity of the complaint is unlikely to matter if the case is appealed to the NLRB. The union will almost certainly win, because two of the board’s three members, Craig Becker and Mark Pearce, are Obama-appointed union lawyers. Both were recess-appointed, although Pearce was later confirmed on a voice vote in a deal that also confirmed Brian Hayes, the one Republican on the board. Becker and Pearce both worked for the Service Employees International Union. Becker is infamous for writing, “Employers should be stripped of any legally cognizable interest in their employees’ election of representatives.” His nomination was rejected on a bipartisan Senate vote, but Obama installed him anyway.

With the odds stacked against Boeing and other employers, it’s up to Congress to step in. Fortunately, Congress is expected to vote as soon as this week on H.R. 2587, the Protecting Jobs from Government Interference Act. The bill, sponsored by Rep. Tim Scott (R., S.C.), would prevent the NLRB from ordering any employer to close, relocate, or transfer employment, protecting businesses from overreach by the agency.

Yes, it has actually come to this in America. We need legislation to confirm that employers can decide where to conduct business.

This bill is not just about Boeing and South Carolina. All states have a stake in preventing this precedent from being set. Right-to-work states lose if companies already operating in forced-unionism states cannot locate facilities there without being accused of an unfair labor practice. At the same time, forced-unionism states stand to lose significant investment, because companies will perceive that if they open a U.S. facility in a forced-unionism state, they will never be able to expand to right-to-work states without risk of NLRB action. It’s much easier to just locate production abroad.

It’s clear where the American people stand. A poll by the Tarrance Group released yesterday found that after being given a lengthy description of the case, 78 percent of voters side with Boeing.

We’ll find out soon where every member of the House stands — with economic freedom, job creation, and common sense, or with union bosses and unlimited bureaucratic power.

If the bill passes the House as expected, Harry Reid should schedule a Senate vote so America can see where every U.S. senator stands on this issue. If he refuses, we can only conclude that Senate Democrats want to protect union interests while ducking the political consequences of taking a vote and having the courage of their convictions.

Reid and Tom Harkin, chairman of the Senate Health, Education, Labor, and Pensions Committee, should also stop obstructing a clean vote on Solomon’s nomination. In addition to the Boeing complaint, Solomon is using his unconfirmed perch to sue states that have adopted state-constitutional protections for private ballots in union elections. It’s long past time for the Senate to vote on his nomination — which has been pending since January.

Voters deserve to know which legislators actually want to take responsibility for legislating, and which want to sit on their hands and let unelected bureaucrats such as Lafe Solomon and Craig Becker run wild. H.R. 2587 will be a key test.

— Phil Kerpen is vice president for policy at Americans for Prosperity and the author of Democracy Denied: How Obama Is Ignoring You and Bypassing Congress to Radically Transform America — and How to Stop Him (BenBella Books, October 18, 2011).



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