We mentioned earlier this week that former NLRB member Peter Kirsanow testified before the NLRB on Monday to discuss the impact the “snap election” rule will have on manufacturers and economic growth and job creation.

Today, Mr. Kirsanow posted an entry on National Review’s Corner blog about the quick snap election rule. Below is an excerpt from his post:

The NLRB held hearings on the proposed rules earlier this week. I argued against issuance of the rules on behalf of the National Association of Manufacturers — the nation’s largest industrial trade association — saying that although the rules would be enormously beneficial to unions, they would be profoundly harmful to employees, employers, and the economy. NAM was at the forefront of defeating the Employee Free Choice Act, or “card check.” These proposed NLRB rules promise to achieve the primary objectives of EFCA — easing union organization and vastly increasing the number of unionized workplaces — by administrative rule, without the need for tough congressional votes.

There are at least 17 readily identifiable, substantially deleterious effects of the proposed rules, but the two most damaging aspects are the reduction of the timeframe in which union elections will be conducted and the backloading of certain procedural safeguards to free and fair representation elections.

Tomorrow, the National Labor Relations Board will post a notice of proposed rulemaking (NPRM) aimed at shortening the time allowed for union certification elections.  These so-called snap elections are the latest attempt by the NLRB to effectively do for the unions what Congress wouldn’t – stack the deck in their favor.

There are many troubling aspects to this proposed rule, but perhaps the most important question to ask is – what’s broken in the system they’re trying to fix?  In 2009, labor unions won 68.5 percent of representation elections.  Furthermore, 95 percent of all elections are conducted within 56 days of the filing petition submitted by the union.  In 2010, the average time from filing of the petition to election was 31 days.  Again, what is the goal of the NLRB in proposing snap-elections?

As NLRB Member Brian Hayes stated in his dissent:

“Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”

In order for employees to make an informed choice in the important decision of whether or not they feel they need a labor union to represent them in negotiations with their employer, employees need to be able to obtain information from both the labor union wishing to represent them and their employer. Snap union elections drastically limit both the time employees have to receive this information and their ability to carefully contemplate their decision.

At a time when manufacturers are focused on remaining competitive and creating jobs, federal agencies should not be focused on developing regulations that disrupt employee relations.

Joe Trauger is vice president for human resources policy, National Association of Manufacturers.

In Charleston, South Carolina this afternoon, the House Oversight and Government Reform Committee will hold a field hearing on the National Labor Relations Board’s complaint against Boeing.  You can watch the hearing here.  It begins at 2 p.m.

This morning in the Washington Examiner Diana Furchtgott-Roth, former chief economist at the Department of Labor, makes a key point.  She writes,

If the NLRB decides in favor of the union, higher unemployment will be a permanent facet of the American economy because more manufacturing plants will be located overseas.

Firms will be less likely to build plants in America if an unconfirmed acting general counsel of an obscure regulatory agency can rule their use is illegal.

The House Subcommittee on Health, Employment, Labor and Pensions held a hearing today about the NLRB.  Here’s an excerpt from Chairman Phil Roe’s opening statement:

The action taken by the National Labor Relations Board against The Boeing Company is a good example. While the facts are still in dispute, the outcome of the case may significantly alter the manner in which employers invest in our economy and our workforce. I recognize the case is in the early stages of what will be costly litigation. But I wonder if anyone seriously doubts the tremendous implications this case poses to our workforce, and could possibly deny Congress’ responsibility to consider those implications, ask questions, and determine what is in the best interest of our workers and their families.

Although this is just one of many cases presented to the NLRB, we must remember the board does not operate in a vacuum. It is an arm of the federal government, and its decisions govern virtually every private workplace in the nation. That is tremendous power that comes with a great responsibility to act on behalf of the public good. I am concerned the board has jettisoned this responsibility over the last two years in favor of an activist agenda designed to advance the cause of Big Labor over  the rights of every day workers.

You can watch the hearing here.  Bloomberg covered the hearing; read its report here.

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.

Sundry…

• Three House members from South Carolina took to the House floor Monday to express their opposition to the National Labor Relations Board’s unprecedented complaint against Boeing for locating new production facilities for the 787 Dreamliner in South Carolina instead of unionized Washington State. The remarks by Reps. Trey Gowdy, Jeff Duncan and Mick Mulvaney are available here.

• LaborUnionReport.com theorizes that the NLRB’s actions could eventually work against non-unionized employers, as well. It’s an interesting legal discussion at “Opening Pandora’s Box Beyond Boeing: NLRB’s Attack on Free Enterprise Should Concern All Americans.”

• Richard Trumka, the AFL-CIO president, presented a well-structured, vigorous defense of the NLRB on the Boeing issue in his speech last week at the National Press Club. Trumka said: “While Boeing and the Chamber of Commerce may not like it, the law of the land protects working people who exercise that right against any retaliation by their employers.” And that was it. Reporters did not follow up in the Q&A, showing more interest in football.

• The issue is playing nationally. Rep. Tom Price (R-GA), a strong supporter of manufacturing, raised the NLRB issue in remarks last week at the Marietta Rotary Club. He said: “The National Labor Relations Board has moved in a destructive direction in regards to job creation, not just in favoring unions, but in telling airplane manufacturer Boeing that it was proposing not to all allow it to move a manufacturing facility from Washington, which is pro-union, to South Carolina, which is a right-to-work state, because it would, ‘harm union activities.’ Boeing has determined it works best for them to move part of its manufacturing capability to South Carolina. Think about what that means. Washington power brokers can pick winners and losers.”

From a leader (editorial) in the latest Economist, “Don’t bully Boeing, Barack,” with the secondary headline, “Want to prove you are ‘pro-business’? Condemn a loony-left complaint against America’s biggest exporter.”

The NLRB is an autonomous body, but its board members are appointed by the president. Under a Democratic president, American businesses expect a more pro-union line, but the agency’s recent militancy is shocking, reminiscent of “loony-left” posturing in Britain in the 1970s. Not only does the agency in effect claim the power to tell firms where they may build factories. It is also suing two states (Arizona and South Dakota) where voters have decided that workers should be guaranteed a secret-ballot election before their workplace is unionised. Mr Obama has so far said nothing about any of these cases. The president claims he understands business. Condemning the NLRB would be a good way to prove it.

The magazine also covers the National Labor Relations Board’s complaint against Boeing in an article, “A watchdog bites: A federal agency bashes Boeing“:

Businesspeople everywhere in America are stunned. Employers have a constitutional right to whinge about unions (and vice versa). They are not allowed to punish strikers—by sacking them, for example. But Boeing has done nothing of the sort. No work has been transferred from Boeing’s Puget Sound plant to South Carolina, nor have any IAM members lost their jobs. In 2007 Boeing announced that it would build seven 787s per month in Puget Sound; two years later, to handle the backlog of orders, it announced an expansion to South Carolina. The backlog is so large that Boeing is increasing its workforce at Puget Sound, not cutting it.

We’d like to see a First Amendment expert address the issue mentioned above, the constitutional right to criticize labor. Articles and blog posts have raised the issue, but we have yet to see a full examination of the free speech implication in the NLRB’s complaint.

Few Democratic members of Congress have spoken up on the National Labor Relations Board’s unprecedented and extreme complaint against The Boeing Company for making a reasonable, legitimate management decision by building new production facilities in South Carolina. It’s a tough decision to defend, so those commenting have relied on a “process” argument — let the process work.

Senate Majority Leader Harry Reid hailed the NLRB as an example of the “checks and balances” envisioned by the Founding Fathers. Sen. Tom Harkin (D-IA) levied accusations, claiming, “Powerful corporate interests are pressuring Members of this body to interfere with an independent agency rather than letting it run its course.”

On Thursday, it was Sen. Richard Blumenthal’s turn to come to the Senate floor to defend the NLRB. The Connecticut Democrat made the most coherent, seriously framed argument based on process we’ve seen: “The NLRB and Lafe Solomon, the acting general counsel, have not only the right but the responsibility to investigate and act where the facts and the law establish a right and obligation to do so. So no one should be trying to prejudge this case before it goes before the administrative judge, and no one should be seeking a pass from the appropriate process, and no one should be seeking to intimidate or to interfere with this lawful proceeding. I come to the floor today because of the prospect of exactly that danger  occurring.”

Yet one specific example Blumenthal cites is the decision by Chairman Darrel Issa (R-CA) of the House Oversight Committee to request documents on the Boeing complaint from the NLRB. But that’s the only example. Otherwise, the Senator seems to objecting to other elected officials publicly criticizing a federal agency.

These actions and some others are an attack on the integrity of the NLRB, an attack on its ability to make decisions and enforce the law as the Congress has instructed it and required it to do based on decisions involving the facts and the law alone. The NLRB is part of our justice system, and it should be given the opportunity to do justice in this instance. It should be given the opportunity to protect fairness and peace at the workplace, which is ultimately its mandate and its very solemn responsibility, and its tradition.

The NLRB is part of our justice system? Really? It does not behave that way. You have the NLRB’s public affairs office issuing press releases announcing the agency’s rulings against business and posting “Fact Checks” that are just political spin. Lafe Solomon commented publicly on the case, restating Boeing’s supposed offenses, before he retreated behind the protection of “let the process work.”

The agency is behaving as a political actor, and the complaint against Boeing is so at odds with the board’s mandate, solemn responsibility and tradition — to use Blumenthal’s terms — that silence would be an abdication of Congress’ oversight and policymaking responsibilities. If the NLRB’s complaint stands, the federal government will replace management in determining company locations and hiring. Such a radical restructuring of the U.S. economy and such an extreme expansion of federal power is at heart a policy matter, which in our system of government is the purview of Congress.

When an agency runs amok like the NLRB has done, it has abandoned process. That’s why the process arguments made by its defenders are just beside the point.

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…)

AFL-CIO President Richard Trumka speaks at a National Press Club luncheon on Friday, an appearance billed thusly:

Trumka will speak out on recent efforts to curb collective bargaining rights in several states, including Wisconsin and Ohio. He also will discuss the political outlook for the 2012 elections, and the impact of austerity budgets on local, state and federal workers.

All good topics. Here are a few others that the reporters could raise during the Q&A period that traditionally follows Press Club remarks.

• In a January 2010 National Press Club appearance you said: “I think you will see the Employee Free Choice Act pass in the first quarter of 2010.” And …”The president fully supports the Employee Free Choice Act, the Vice President fully supports the Employee Free Choice Act, a vast majority of the members of the House support the Employee Free Choice Act, a vast majority of the people of the Senate support the Employee Free Choice Act. And I think we are going to have the Employee Free Choice Act despite the determined efforts of the Republican Party.” So were you shining us on, deceiving your membership for tactical reasons, or are you just a lousy prognosticator? Did the failure of card check reflect organized labor’s lack of political influence? Your own lack of influence?



AFL-CIO President Richard Trumka addresses anti-coal crowd at April rally. (Photo: Energy Action Coalition)

• You began your career as a coal miner and served as President of the United Mine Workers before being elected to head the AFL-CIO. Yet at an April “Power Shift” rally in front of the White House, you joined environmental activists in demanding “clean energy” policies in which coal has no role. Demonstrators held signs declaring “Coal is Over” and “No More Coal!” (More photos here and here.) How can you, as a union president, make common cause with activists who want to shut down the coal industry?

• AFL-CIO affiliated unions are members of the Blue-Green Alliance, which includes such organizations as the Natural Resources Defense Council, the Sierra Club, and the Union of Concerned Scientists. Many people regard these groups as hostile to the industrial base of this nation’s economy. How do you reconcile union support for this alliance? According to a Department of Commerce study, green products and services account for at most 2 percent of private sector activity. How you can justify spending member dues on groups who have such a narrow focus and whose policies would eliminate unionized jobs in the energy and manufacturing sectors?

• Do you believe nuclear power has a role in America’s future energy production? Because AFL-CIO member unions are sending member dues to a group that includes the Union of Concerned Scientists, one of the major opponents of nuclear energy.

• Should a company that currently has unionized operations in a state ever be allowed to locate new operations in a right-to-work state?