Lafe Solomon Archives - Shopfloor

Judge to Hear NLRB Boeing Case Tomorrow

By | Labor Unions | No Comments

Tomorrow an administrative law judge in Seattle will begin hearing the case of National Labor Relations Board against Boeing. As we’ve mentioned previously manufacturers are very concerned with this overreach from the NLRB which stands to directly threaten economic growth. 

The hearing comes a week after 16 state Attorneys General filed a brief on the case. In the brief they state, “State policymakers should be free to choose to enact right-to-work laws – or choose not to enact them – without worrying about retaliation from the NLRB.”

Today the NLRB announced that Lafe Solomon, acting general counsel, will “reluctantly” appear at a House Oversight and Government Reform Committee hearing on Friday. Solomon had initially asked Committee Chairman Issa if he could send a deputy. The hearing will take place in North Charleston, S.C. where the new Dreamliner facility is located.

NLRB: Don’t Litigate Boeing in Public! That’s Our Job.

By | Briefly Legal, Economy, Labor Unions | One Comment

Lafe Solomon, acting general counsel, National Labor Relations Board, May 9, 2011, statement on Boeing case: “We hope all interested parties respect the legal process, rather than trying to litigate this case in the media and public arena.

Nancy Cleeland, NLRB spokeswoman, interview with The Street, May 18, 2011:

“We are not telling Boeing they can’t build planes in South Carolina,” Cleeland clarified, in an interview. “We are talking about one specific piece of work: three planes a month. If they keep those three planes a month in Washington, there is no problem.” Beyond the ten planes, she said, Boeing could build whatever it wants in South Carolina.

Cleeland said the hysteria ought to be tamped down because the ruling’s implications are not as broad as opponents seem to believe.

It’s arrogance for a government agency to tell its critics to shut up and let the process work, and then comment about how those critics are being hysterical. Very arrogant.

White House Dodges Questions About NLRB’s Complaint Against Boeing

By | Briefly Legal, Economy, Labor Unions | No Comments

From today’s White House press briefing conducted by Jay Carney:

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.

Carney then changed the subject to tout the President’s record on the auto industry and hail the growth of manufacturing.

The National Labor Relations Board is indeed an independent executive branch agency, one that is not directly answerable to the President. But there’s nothing stopping the President from expressing disapproval of a complaint that threatens a multi-billion-dollar investment, sows economic uncertainty, and could fundamentally change the business climate in the United States, making us less competitive. The President enjoys the same free speech rights as everyone else — except for Boeing executives talking about business decisions, apparently — and he can comment.

How about this instead from Carney? “The President is aware of this issue. While he does not presume to instruct an independent agency how to proceed, the President is very troubled by the implications for jobs and economic growth of the NLRB’s complaint. Some members of Congress are discussing a legislative response to make sure the federal government does not hinder the expansion of companies anywhere in the United States. The President is watching those efforts with interest.”

Or: “It seems like a very bad idea, what the NLRB is doing. I hope Lafe Solomon, my appointee as acting general counsel, reconsiders his complaint.”

NLRB Already Talking About ‘Settlement’ in Boeing Case

By | Briefly Legal, Labor Unions | One Comment

Yes, elected officials, business groups and the public are continuing to speak out against the National Labor Relation Board’s unprecedented and extreme complaint against The Boeing Company, even though NLRB’s acting general counsel, Lafe Solomon, issued a statement Monday trying to silence the storm of criticism against the board.

Solomon’s statement also signaled the NLRB’s lack of confidence in the merits of its case.

The Associated Press reports, “Gov. Haley heads to Washington for Boeing battle“:

COLUMBIA (WACH, AP)- Governor Nikki Haley, members of Congress, U.S. Chamber of Commerce officials and business association leaders will hold a press conference on Tuesday in Washington, D.C.to discuss concerns relating to the National Labor Relations Board complaint against the Boeing Company.

Joe Trauger, vice president for human resource policy for the National Association of Manufacturers, will participate in the 11:30 a.m. event. Other speakers from the business side are Business Roundtable President John Engler; the Chamber’s Randy Johnson, senior vice president of labor, immigration, and employee benefits; and Dan Yager, chief policy officer and general counsel at HR Policy Association.

In his statement Monday, Solomon urged “all interested parties [to] respect the legal process, rather than trying to litigate this case in the media and public arena.” The NAM’s Trauger already pointed out the arrogance represented by a government official like Solomon attempting to silence criticism after all he and the NLRB have done to promote their arguments “in the media and public arena.”

Solomon’s statement is interesting for another reason, his invocation of the word “settlement.”

It is important to note that the issuance of a complaint is just the beginning of a legal process, which now moves to a hearing before an administrative law judge. That hearing, scheduled for June 14 in Seattle, is the appropriate time and place to argue the merits of the complaint. The judge’s decision can further be appealed to the Board, and ultimately to the federal courts. At any point in this process, the parties could reach a settlement agreement and we remain willing to participate in any such discussions at the request of either or both parties.

Such a prominent appeal to “settlement” is highly unusual, perhaps unprecedented, knowledgeable observers tell us.

We read the statement to be Solomon acknowledging the weakness of the NLRB’s complaint against Boeing, which he filed at the behest of the International Association of Machinists and Aerospace Workers. This is the equivalent of a prosecutor saying, “We are confident in the strength of our case, but you know, there’s a judge, and it’s kind of hard, and maybe we’ll reach a deal or the charges might be dropped, because … A settlement would be really, really good, we think.”

Better idea: The NLRB should resist the political pressure from the labor unions and the Obama Administration and just withdraw the complaint, apologize and move on.

Recent Shopfloor.org posts:

NLRB’s General Counsel: Don’t Question Us About Boeing

By | Briefly Legal, Economy, Labor Unions | One Comment

Acting General Counsel Lafe Solomon of the National Labor Relations Board today released a statement asserting there is “nothing remarkable or unprecedented about the complaint issued against Boeing Company on April 20.”

Perhaps telling businesses where they can expand and chilling future capital investment is unremarkable to the Acting General Counsel, but it is certainly unprecedented.  The release of such a defensive statement by Mr. Solomon on an active case raises the question of whether the NLRB is starting to doubt the merits of its complaint.

While admonishing others who have raised questions or concerns about the complaint against “litigating this case in the public arena” the Acting General Counsel conveniently leaves out the news releases, “fact checks,” tweets and other materials issued by his office on this matter.  Are businesses and their associations supposed to sit down and shut up while an appointed board injects itself into fundamental business decisions about where to locate and whom to hire? Should the government be allowed to expend taxpayer dollars to damage a company’s reputation and force it to seek legal recourse without question?

Solomon probably just wants to avoid pointed inquiries about the NLRB’s preposterous complaint and the message it sends to other industries operating in the United States.

And in fact, he is scheduled to speak Tuesday in Chicago at a chapter meeting of the Labor and Employment Relations Association. The topic? “Recent Developments at the National Labor Relations Board (NLRB),” promoted on an association flyer with, “Both the National Labor Relations Board and the Board’s General Counsel have implemented numerous changes in federal labor law, encompassing a wide range of procedural and substantive areas. Please join the NLRB’s Acting General Counsel, Lafe Solomon, for a presentation and discussion regarding recent developments at the Board.”

But no questions about Boeing, please. Read More

Boeing Complaint: Hatch Challenges Appointment, Authority of NLRB’s General Counsel

By | Briefly Legal, Labor Unions | 4 Comments

President Obama skirted federal law and established procedures to appoint Lafe Solomon to serve as Acting General Counsel of the National Labor Relations Board, Sen. Orrin Hatch (R-UT) charged this week, calling on the President to withdraw Solomon’s appointment in the wake of the NLRB’s unjustified and economically disastrous complaint against The Boeing Company.

Hatch took to the Senate floor Thursday to dissect and denounce the NLRB’s complaint against Boeing for locating new assembly facilities in South Carolina instead of Washington State.  In a lengthy statement (available here), the Utah Republican analyzed the NLRB’s contravention of federal law labor, warned of the competitive consequences of bureaucrats making facility-siting decisions, and criticized the Obama Administration for putting the interests of organized labor before the nation’s.

NLRB's Lafe Solomon

Hatch also challenged the validity of President Obama’s June 21, 2010, appointment of Solomon to serve as Acting General Counsel, arguing that the President ignored the established procedures for such appointments under the National Labor Relations Act (NLRA). Instead, Hatch said, the President made Solomon his personal acting general counsel under “the more generous terms” of the Federal Vacancies Act, which is intended to apply to government vacancies in general.

Why did the President take this unusual step? Hatch:

Under the Vacancies Act, Mr. Solomon is allowed to stay in the job in an acting capacity, without Senate approval, for an initial 210 days—rather than the 40 days provided under the National Labor Relations Act—and then be reappointed again for another 210 days, and a third time for yet another 210 days, until the end of President Obama’s term.

This is yet another example of the President end running the law in order to ensconce in office individuals who would have a difficult time surviving the constitutionally required confirmation process—a process that ensures the people and their representatives have some meaningful oversight of the appointee.

Solomon filed the NLRB complaint against Boeing on April 20, acting in support of the International Association of Machinists and Aerospace Workers, which represents workers at Boeing’s Washington facilities. Given the timing cited by Sen. Hatch above, Solomon’s appointment as Acting General Counsel should have expired on July 31, 2010, depriving Solomon of the authority to take the later action against the airplane manufacturer.

Hatch’s analysis carries extra weight because of the Senator’s status as a senior member on both the Senate Health, Education, Labor, and Pensions Committee — which oversees the National Labor Relations Act — and the Senate Judiciary Committee. In challenging Solomon’s authority, the Senator also reinforces an argument made by Boeing in its defense.

Boeing’s formal response to the NLRB filed on May 4 challenges Solomon’s status, the 14th and final item in the list of the company’s defenses: “The Complaint is ultra vires because the Acting General Counsel of the NLRBdid not lawfully hold the office of Acting General Counsel at the time he directed that the Complaint be filed.” Ultra vires means outside of one’s authority. Read More

Pressure Mounts Over ‘Preposterous’ NLRB Complaint Against Boeing

By | Briefly Legal, Economy, Labor Unions | One Comment

McClatchy Newspapers reports on the Republican presidential debate in Greenville, S.C., “South Carolina’s Haley leaves mark on GOP presidential debate“:

With so few candidates at the debate, [Gov. Nikki]  Haley played a supporting role as the Fox News moderators took up her challenge to presidential candidates to weigh in on a National Labor Relations Board complaint against Boeing Charleston’s plant.

Pawlenty jumped first, claiming President Barack Obama’s administration crossed a new line in opposing Boeing’s decision to locate outside of its home base of Washington. “It’s a preposterous decision,” he said.

Minnesota Public Radio, “Pawlenty scores some points in first GOP debate“:

On the domestic front, Pawlenty drew wild applause from the audience when he stood with South Carolinians over a local labor issue involving Boeing aircraft jobs.

“You have this administration, through the National Labor Relations Board, telling a private company that they cannot relocate to South Carolina and provide jobs in this state. And they are good-paying jobs, and they’re needed jobs. It’s a preposterous decision and position of this administration.”

It’s not just a local labor issue. It’s a national issue of tremendous importance to businesses across the nation, who are deeply concerned about a National Labor Relations Board that arrogates to itself the power to determine where a company can locate new production facilities.

And although the Republicans have seized on the issue while Democrats, tied to organized labor, have remained mostly silent, this is also not inherently a partisan issue. The idea that a government agency can reinterpret precedent and ignore the facts of a case to shut down a billion-dollar operation employing more than 1,000 people should alarm those of all political affiliations who believe in private-sector growth.

The NLRB’s account of the facts of the case is suspect. Chairman John Kline (R-MN) and Rep. Phil Roe (R-TN) of the House Education and Workforce Committee has sent a letter (available here) to Lafe Solomon, the NLRB’s acting general counsel who brought the complaint against Boeing.

The complaint references alleged statements made by Boeing officials between October 2009 and March 2010 that work stoppages were one reason for choosing the new location.

When asked about the charge in June 2010, the NLRB regional director Richard Ahearn told The Seattle Times “it would have been an easier case for the union to argue if Boeing had moved existing work from Everett, rather than placing new work in Charleston.” He was also unable to point to any “bright line” rule to determine whether the company’s actions violated the law. Finally, the regional director stated “an initial ruling is weeks away.”

The letter requests NLRB documents underlying the decision. Bloomberg reports, “Republicans Rally Behind Boeing Over Labor Board Complaint.”

On the Senate side, Sen. Jim DeMint (R-SC) and 18 other Senate Republicans have written President Obama calling on him to withdraw the nomination of Solomon — the NLRB’s general counsel job requires Senate confirmation — and NLRB member Craig Becker, the former SEIU lawyer who serves on the board via a recess appointment. From FoxNews.com, “Senate Republicans Threaten to Fight NLRB Nominations Over Boeing Complaint“: Read More

Boeing Files Formal Response, Refutes NLRB’s Facts, Legal Claims

By | Briefly Legal, Labor Unions | No Comments

The Boeing Company has filed its “final answer” in response to the National Labor Relations Board’s April 20 complaint against the company for locating new assembly facilities for the 787 Dreamliner in South Carolina. The company denies every claim in the NLRB’s charges, rebutting each one with direct and forceful statements.

The legal document (available here) was filed with the NLRB’s Seattle-based Region 19, where an Administrative Law Judge will hear the complaint on June 14. Along with the company’s letter sent Tuesday to the NLRB’s acting general counsel, Lafe Solomon, the company has effectively destroyed the factual and legal case on which the NLRB based its unprecedented, extreme complaint.

The leading point of refutation:

Boeing’s decision to place the second 787 assembly line in North Charleston was based upon a number of varied factors, including a favorable business environment in South Carolina for manufacturing companies like Boeing; significant financial incentives from the State of South Carolina; achieving geographic diversity of its commercial airline operations; as well as to protect the stability of the 787’s global production system. In any event, even ascribing an intent to Boeing that it placed the second line in North Charleston so as to mitigate the harmful economic effects of an anticipated future strike would not be evidence that the decision to place the second assembly line in North Charleston was designed to retaliate against the IAM for past strikes. Nevertheless, Boeing would have made the same decisions with respect to the placement of the second assembly line in North Charleston even if it had not taken into consideration the damaging impact of future strikes on the production of 787s.

The legal filing raises numerous other credible points, e.g., noting that the International Association of Machinists and Aerospace Workers had waived its rights to challenge Boeing in a case like this as part of its collective bargaining agreement. Read More

Boeing Calls NLRB’s General Counsel to Account for Falsehoods

By | Briefly Legal, Labor Unions | 2 Comments

Boeing has sent a detailed and very tough letter to Lafe Solomon, the acting general counsel of the National Labor Relations Board, for repeatedly mischaracterizing the company’s actions in locating new production facilities in South Carolina.  The letter from J. Michael Luttig, Boeing’s executive vice president and general counsel, begins:

I write regarding statements in your complaint and elsewhere – including statements attributed to you in the New York Times on April 23 – about Boeing’s decision to place its new 787 final assembly line in South Carolina. A number of these statements, which are critical to your case against Boeing, fundamentally misquote or mischaracterize statements by Boeing executives and actions taken by the Company. You have a responsibility to correct these misquotations and mischaracterization , for the public record and also for purposes of the complaint you have filed. Through these misquotations and mischaracterizations, you have done a grave disservice to The Boeing Company, its executives and shareholders, and to the 160,000 Boeing employees worldwide. And, of course, you have filed a complaint based upon these misstatements that cannot be credibly maintained under law.

Luttig follows with point-by-point refutation of Solomon’s claims. The letter concludes: Read More

Card Check is Dead, But Labor’s Anti-Democratic Plans Live On

By | Briefly Legal, General, Labor Unions, Regulations | 3 Comments

Mickey Kaus, the reform-minded blogger now at The Daily Caller, takes note of the comments of Sen. Sherrod Brown (D-OH)  conceding the legislative death of the Employee Free Choice Act (EFCA). According to a report in The Hill, Brown told WVIZ radio, “It’s not going to happen now.”

To which Kaus responds with cynicism disguised by yuck yuck. From “Why K Street Hates Sherrod Brown”:

Brown may have just sent K Street into recession, if that’s possible. Big Business and Small Business, terrified of the “card check” bill–including its mandatory government arbitration provisions–spent heavily on lobbyists to fight it.  How many former Senate staffers have fed their children for the past three years off of the “card check” menace? Businesses are unlikely to keep the fees flowing if the threat has disappeared. They should take up a collection to bring [Atlantic reporter Mark] Ambinder back from National Journal. Or to pay Sherrod Brown to be quiet.  … You’d think by now Brown would know proper D.C. etiquette, which is to pretend “card check” still might, just might, pass, maybe in some “compromise” form. That way Democrats are happy–they’ve led labor on for another cycle–and K Street is happy. Keep hope alive! It’s good for the juice.) …

You bet, the Employee Free Choice Act was a good issue to energize the troops and raise funds for ad campaigns and lobbying. Small, family-owned businesses especially hate the idea of an undemocratic process — card check — being used to turn their operations over to labor unions. Other companies recognized in the Employee Free Choice labor’s strategy for undermining the competitive advantages of locating in right-to-work states. The binding arbitration provisions were indeed anathema to employers: A federal appointee would impose contracts on them!

Of course, labor would not have put so many millions into the bill if they did not see it as necessary to revive private-sector unionization.

NLRB Member Craig Becker

Still, all the calls to action and appeals for money to oppose EFCA would have fallen flat if the bill had not been a real threat to become law. H.R. 800 passed the House in 2007 by a vote of 241-185, and 51 Senators voted for cloture. That was before President Obama, an ardent supporter, won election in 2008. Of course, business groups geared up to fight the bill. They could no longer rely on President Bush to veto the bill.

And now the Employee Free Choice Act is dead, at least legislatively. No one has even bothered to introduce a bill this session.

But at the risk of being accused of ginning up a threat, we assert that labor is still actively working to achieve the fundamental goal of the legislation: rigging the game to favor private-sector unions at the expense of employers. Now they’re just relying on their allies in the Executive Branch to use regulations, orders and decisions to push through the labor agenda. Read More