Rounding up the most recent news and commentary about the National Labor Relations Board’s complaint against The Boeing Company for locating new production facilities in South Carolina instead of the unionized Puget Sound region…

At Slate.com, Dave Weigel interviews Bill Gould, a former Democratic member appointed to the NLRB by President Clinton. From “Air Rage”

“The Boeing case is unprecedented,” he says. “I agree with much of what this board has done and is likely to do, but I don’t agree with what the general counsel has done in the Boeing case. The general counsel is trying to equate an employer’s concern with strikes that disrupt production and make it difficult to make deadlines—he’s trying to equate that with hostility toward trade unionism. I don’t think that makes sense.”

Radio talk show host Hugh Hewitt asks Senate Republican Leader Mitch McConnell (R-KY) about NLRB’s move against Boeing.

MM: Unbelievable, isn’t it? The federal government is now, through the NLRB, going to tell you where you can locate your plant. You know, a lot of these big, global businesses, their response to that might be well, I’ll locate my plant in Mexico. I mean, I think that this is truly outrageous. This is the same administration who has now tried to introduce politics into the procurement process by making people who do business with the government reveal their political support for candidates. This is a Chicago-style thuggish administration. In other words, agree with us, or we’ll find a way to punish you. (continue reading…)

Sen. Lamar Alexander (R-TN) announced on the floor of the Senate Tuesday that he and the two Senators from South Carolina, Lindsey Graham and Jim DeMint, would be introducing legislation today inspired by the National Labor Relations Board’s unprecedented, unjustified complaint against Boeing for locating new production facilities in South Carolina.

Sen. Alexander said: “We are calling it the Right to Work Protection Act, and it is our intent to preserve the right of each State to make a decision for itself about whether it will have a right-to-work law and have an ability to enforce it. This is in direct response to an action that the National Labor Relations Board has taken against the Boeing Company and the plant they are building in South Carolina.”

In the floor discussion (transcript here), the Senators defended state right-to-work laws as one legitimate approach toward competing for new businesses, a choice that states should be able to make without being undermined by the federal government. Their legislation would add this paragraph to the National Labor Relations Act and the Railroad Labor Act:

Nothing in this Act shall be construed to limit the application of any State law that prohibits, or otherwise places restraints upon, agreements between labor organizations and employers that make membership in the labor organization, or that require the payment of dues or fees to such organization, a condition of employment either before or after hiring.

Sen. Graham gave the background of Boeing’s decision to locate the company’s new assembly facilities in South Carolina instead of Washington State, the timeline of the complaint from the machinists union, and the lawsuit filed by the NLRB’s acting general counsel, Lafe Solomon. (Embedded video). Excerpt:

All I can say is this complaint is frivolous. It is taking time and money away from creating jobs in South Carolina and Washington. And it has national implications. To Senator Alexander, you have found the right way for the Congress to address this issue. We are not forcing anybody to be a member of a union. We are just saying, if a State such as South Carolina or Tennessee chooses to be a right-to-work State, that cannot be held against them. This legislation would say to the country and the business community as a whole: When you look at where to locate, you can consider a right-to-work State without violating the law. That is an important concept. (continue reading…)

A line of inquiry that would have been fruitful at last evening’s White House news conference:

Mr. President, tomorrow, February 10th, the new lead and phthalate content standards go into effect for products intended for children. This implementation of the Consumer Product Safety Improvement Act has thrown thousands of home-based businesses into chaos, interrupted the sale of products like dirt bikes and backpacks, frightened thrift stores, caused libraries to evaluate the lead content of children’s books, imposed millions of dollars of testing costs on the private sector and opened up businesses to a wave of lawsuits, including class-action litigation.

Given all of your concern for the recession, what can you say to a public who sees the impact of laws like this and doubts the ability of Congress to do anything to help the economy? And is there something your Administration can do to bring a little bit of relief and certainty to all those employers and businesses who are at sixes and sevens about the requirements of this new law? They face serious legal liability for action taken in good faith.

It’s just a thought. As Senator Obama, the President was campaigning last year and did not vote on the various forms of the Consumer Product Safety Improvement Act. The CPSC is an independent regulatory agency, so is supposedly not subject to direct presidential influence, but a phone call to a Democratic Senator followed by a phone call to Commissioner Moore could work wonders.

But, really, the responsibility for ameliorating legislation lies with Congress, which passed the CPSIA in the first place.

In any case, welcome to National Bankruptcy Day, the term that many small businesses use to describe the February 10th date that the CPSIA’s lower lead and phthalate standards go into effect. In response to the uproar and confusion, the CPSC on Monday issued a 13-page guidebook, “Guidance on the Consumer Product Safety Improvement Act (CPSIA) for Small Businesses, Resellers, Crafters and Charities.” What we note in this booklet are the adverbs, “likely,” “generally,” “knowingly,” etc. You can’t spell legal liability without an “l” and a “y.”

Senator Jim DeMint (R-SC) has introduced a bill, S. 374, that provides relief and eases the economic burdens caused by implementation of the CPSIA. (News release.) But the Senator is in the minority and his proposed amendment to the stimulus bill that would have done the same thing was not acted upon. So for now, havoc and confusion and costs reign.

Senator Jim DeMint (R-SC) on Wednesday introduced S. 374, a bill to amend the Consumer Product Safety Act to provide regulatory relief to small and family-owned businesses. The text is not yet available. From his news release, “DeMint Introduces Consumer Products Safety Reform Bill,” listing its six major provisions:

1. Delays the overreaching regulations six months so that all parties can work together to address the needs of our small businesses and the needs of product safety.

2. Allows small manufacturers to use the testing and certification that their component suppliers have done to certify that the components do not contain an impermissible amount of lead. This will save small manufacturers from having to subject their products — many of which are made in small runs — to duplicative and expensive multi-thousand dollar tests.

3. Exempts thrift stores, yard sales, consignments shops and other re-sellers from the prohibitions in the act. Goodwill, the Salvation Army and your local flea market were never the source of the product safety concerns encountered last year, and they won’t be in the future. They are good actors trying to provide Americans of modest means with value oriented products. They shouldn’t be subjected to tens of thousands of dollars in potential liability.

4. Prevents retro-active enforcement of the act. There are millions of dollars of safe products in the warehouses and stores around the country today, which could become un-sellable under CPSIA. This will prevent thousands of products from being destroyed and the livelihood of thousands of businesses from being threatened.

5. Provides a Good-Faith Exemption. The act and its associated regulations are extremely complex. Small manufacturers are having difficulty understanding what the act requires of them. While many small businesses are doing their best to comply with the act it’s possible someone could accidentally run afoul of the act. If they can show that their error was made in good-faith, my bill will provide them with a one-time exemption from sanction.

6. Requires the CPSC to provide small businesses with a compliance guide. This is an extremely technical regulation that impacts a number of small businesses who don’t have large compliance departments to decipher the regulations for them. Senator DeMint’s bill would require the CPSC, in consultation with the state and federal small business agencies, to develop a compliance guide that addresses the concerns of the small business community.

Walter Olson, naturally, provides another news roundup at Overlawyered.com, “CPSIA chronicles, February 5.” One item we highlight:

A news account in the WSJ attributes last Friday’s stay to “pressure from manufacturers”, with no mention of grass-roots movement at all. Lame. Meanwhile, CNNMoney quotes safetyists and trade associations, but not small producers, leaving readers clueless about costs. USA Today does a better job at presenting all sides.

Agreed on all points. We think the NAM CPSC Coalition has been an effective voice bringing substantial expertise to bear, but you just can’t beat the impact of a grassroots revolt like the one growing from the small producers, retailers and consumers. Sincere thanks to all of you.

The Consumer Product Safety Commission late Friday announced a one-year stay of the Consumer Product Safety Improvement Act’s enforcement of requirements for testing of products that will be used by children. (News release.) The action, coming in the wake of a full-scale revolt by small manufacturers of toys, garments and other children’s products, provides very little relief.

CPSC Acting Chairman Nancy issued a statement in conjunction with the stay. This excerpt make it clear that everyone’s still on the hook:

The action we are taking today puts in place a limited “time-out” so that the Commission and the Congress can address the issues with the law that have become so painfully apparent. The stay will give the CPSC time to develop and issue rules defining responsibilities of manufacturers, importers, retailers, and testing labs. It will give the Commission time to rule on exemptions andexclusions from the lead provisions and develop and put in place appropriate testing protocols. It will give staff time to develop an approach to component parts testing, given the ambiguity of the statute on this point.

It is important to clearly understand what the stay does and does not do. The stay of enforcement of the testing and certification provisions will give some temporary and limited relief to small manufacturers, home-based businesses and crafters who cannot comply with the law without incurring substantial testing costs. However, the stay does not relieve them of complying with the underlying requirements enacted by Congress and which go into effect on February 10, 2009, dealing with lead, phthalates and a number of other toy standards. Any changes to these requirements will need to be addressed by Congress.

The Consumer Product Safety Improvement act also empowered state attorneys general to enforce the CPSIA’s provisions, so an ambitious AG could still wreak havoc by targeting manufacturers of children’s products, or products used by children, or products that may come in contact with children. To which the CPSC says, “The Commission trusts that State Attorneys General will respect the Commission’s judgment that it is necessary to stay certain testing and certification requirements and will focus their own enforcement efforts on other provisions of the law, e.g. the sale of recalled products.”

That’s placing a lot of trust in the restraint of politicians.

Bottom line, the CPSC’s action provides no legal protection for manufacturers of products requiring testing and really just confuses the issue.

Let’s get moving, Congress.

For more, see Walter Olson’s post at Overlawyered.com. He comments:

This is, in general, very good news, but two problems need to be pointed out. One is that the action may be vulnerable to legal challenge as violating the CPSC’s legal obligations to regulate, and in particular to enforce CPSIA’s terms faithfully. As if to confirm that danger, prominent “consumer” groups — that is, the same groups that pushed CPSIA through to enactment and have vocally defended the law ever since — issued a letter this afternoon digging into their position that there’s nothing wrong with the law and that Congress should not revisit it. (Consumers Union, Public Citizen — the latter, it will be recalled, being the group whose David Arkush wrote last month “I haven’t heard a single legitimate concern yet” about the law.)

In other developments, Sen. Jim DeMint (R-SC) announced he will introduce a bill to fix the CPSIA’s excesses. His news release is here.

A modest and appropropriate marking of a legislative victory.

From a transcript of a news conference with Senate Republicans today on energy, Sen. Mitch McConnell (R-KY) leading off:

MCCONNELL:  OK.  Well, thanks for joining us this morning.  We thought it was a good time to pause and celebrate an extraordinary accomplishment.

As all of you know, the biggest issue for the last six months has been the price of gas at the pump.  Some months back, 44 Republicans came together behind a bill we call the Gas Price Reduction Act, which did three or four things, three of which have been now accomplished. We advocated lifting the offshore moratorium on drilling.  We advocated lifting the moratorium on oil shale development.  And we advocated incentives for battery-driven cars.  Not that we thought that was every solution, but a good first step.

All three of those things have been accomplished, either already accomplished in the Senate with the passage of the energy extenders bill, or shortly will be accomplished when we pass the continuing resolution, because, as all of you know, both those moratoria have been lifted.

So we’re here today to celebrate this accomplishment, to thank the American people for literally sweeping over Congress with their public opinion and demanding this result.   

But also adding one cautionary note:  You get the impression in listening to the majority that it is their intent to restore these moratoria at a later time this year.   

We don’t think the American people will like that, if that’s what they intend to do.  We think they’ve made a good decision in taking these moratoria out of the continuing resolution.  We think it’d be widely applauded by the American people.  And some effort to sort of thumb your nose at public opinion as soon as the inconvenience of the election gets out of the way strikes us as not being very responsible in our democracy.

(continue reading…)

A letter from Sen. Jim DeMint (R-SC) to Senate Majority Leader Reid:

September 24, 2008

The Honorable Harry Reid
Senate Majority Leader
Washington, DC 20510

Dear Senator Reid,

I was pleased to learn that Democrats have reluctantly decided to allow the bans on offshore and oil shale energy exploration to expire next week, giving Americans the freedom to access their own energy supply. This is a major step forward.

Now we must enact legislation that directs the Administration to expedite leasing in these new areas, arranges for appropriate state revenue sharing, and prevents frivolous lawsuits from stalling critical energy exploration. If Congress is serious about increasing our domestic energy supply, expediting production is a critical step in achieving that goal. I will ask the Senate to adopt this legislation this week, and I hope you will not block this important economic stimulus.

It has been suggested that Democrats plan to use environmental lawsuits to block exploration until they can reinstate these energy bans after the November elections. This would be a major mistake. I hope you will work with me to protect and expedite access to this new energy supply.

Sincerely,
Jim DeMint
United States Senator

Hat tip: Heritage Foundation’s The Foundry Blog, which highlights the non-legislative obstacles to drilling.