The Washington Examiner: Labor board broke federal law on Boeing suit

byConn Carroll Senior Editorial Writer

Then-National Labor Relations Board Chairman Wilma B. Liebman and Peter Carey Schaumber, a longtime board member and former chairman, meet in a conference room at NLRB headquarters in Washington, Monday, Aug. 24, 2009. (AP Photo/J. Scott Applewhite)

What if there were emails showing Supreme Court Justice Sonia Sotomayor coordinating with Attorney General Eric Holder and White House press secretary Robert Gibbs on how the Obama administration should fight judicial challenges to Obamacare?

At a bare minimum, Justice Sotomayor would have to recuse herself from the case, she might be impeached, and Holder would face serious ethics questions as well. But such emails do not exist … concerning Obamacare. When it comes to the National Labor Relations Board suit against Boeing, that is a different story.

Cause of Action, a government accountability nonprofit, has obtained emails through a Freedom of Information Act request showing then-NLRB Chairwoman Wilma Liebman, NLRB Acting General Counsel Lafe Solomon and NLRB Public Affairs Director Nancy Cleeland coordinating the board’s response to its own decision to sue Boeing for opening a factory in the right to work state of South Carolina.

But, since the NLRB is an independent agency, shouldn’t they be allowed to coordinate about ongoing litigation? Yes and no. The NLRB is supposed to be an independent agency, capable of creating rules, enforcing them and adjudicating them.

But because the NLRB has within itself all of the governing powers our Founding Fathers believed should be separated (legislative, executive and judicial), its creators also wrote rules making it illegal for board employees who perform different functions from communicating with each other under certain circumstances.

Specifically, 29 C.F.R. 102.126 and 29 C.F.R. 102.127 forbid a member of the board from requesting or “knowingly caus[ing] to be made” any ex parte communications with any interested person outside the agency relevant to the proceeding.

That same regulation also forbids any “interested person outside this agency” from making any ex parte communications to board members.

Most importantly, 29 C.F.R 102.127 specifically defines the phrase “person outside this agency” to include “the general counsel or his representative when prosecuting an unfair labor practice proceeding before the board pursuant to section 10(b) of the act.”

The regulations define an ex parte communication as “an oral written communication not on the public record with respect to which reasonable prior notice to all parties is not given.”

The emails Cause of Action obtained would seem to be covered by these laws.

Solomon is the general counsel. He is pursuing an unfair labor practice proceeding against Boeing before the board pursuant to 10(b) of the National Labor Relations Act.

Liebman was the chairwoman of the NLRB. Any decision made by the administrative law judge hearing the Boeing case Soloman is arguing could be appealed to Liebman’s board, much as lower court decisions are appealed to the Supreme Court. So all communications between Solomon and Liebman about the Boeing suit would be illegal under the NLRA.

Cause of Action has obtained at least four emails sent to both Solomon and Liebman explicitly about the Boeing litigation. There is also a fifth email about the Boeing litigation, sent from Liebman herself, to Cleeland and Solomon. All of these communications appear to violate NLRB’s own rules.

Cause of Action has asked NLRB’s inspector general to investigate the apparently illegal coordination by Liebman, Cleeland and Solomon on the Boeing suit. But Congress must do more.

It is bad enough that Congress has eviscerated the Constitution’s separation of powers doctrine by ceding away its governing powers to administrative agencies like the NLRB. Congress should not now allow those agencies to ignore what few protections have been left in place.

Conn Carroll is a senior editorial writer for The Washington Examiner. He can be reached at

S.C. Chamber sues NLRB to block notification rule

Via ChamberBiz Newsletter:

The South Carolina Chamber of Commerce, the state’s unified voice of business, and the United States Chamber of Commerce have filed a lawsuit against the National Labor Relations Board (NLRB) challenging the Board’s new rule requiring businesses to post notices explaining employees’ rights to unionize. The lawsuit alleges that the misguided NLRB rule violates federal labor and regulatory laws as well as the First Amendment. The case, Chamber of Commerce, et al. v. National Labor Relations Board, et al., is in the U.S. District Court of South Carolina.

“The NLRB’s new rule is just another example of the agency overreaching and overstepping its authority,” said Otis Rawl, president and CEO of the South Carolina Chamber of Commerce.  “At a time when South Carolina businesses are working to create jobs, this new rule will add unnecessary costs to doing business.”

The lawsuit alleges that the NLRB’s final rule regarding Notification of Employee Rights Under the National Labor Relations Act (“Notification Rule”) violates the National Labor Relations Act (NLRA), the Administrative Procedure Act (APA), the Regulatory Flexibility Act (RFA) and the First Amendment. Significantly, the rule creates a new “unfair labor practice,” exposing businesses to significant and costly liability for failure to comply. The Rule — which applies to virtually all private employers in the United States — becomes effective on November 14, 2011.

According to the lawsuit:

  • Nowhere does the NLRA give the NLRB authority to coerce employers to post such notifications, or to impose onerous penalties for those who fail to post the notices.
  • In violation of the APA, the rule arbitrarily and capriciously excludes from the mandatory notice a description of the fundamental rights of employees to be free of compulsory union membership and compulsory union dues.
  • The NLRB violated the RFA by failing to properly assess the significant economic impact the rule would have on small businesses.
  • The rule violates the First Amendment by compelling employers to post the NLRB’s ideological views on unionizing.

Thank you Tim Scott for protecting SC jobs!

Congressman Scott’s NLRB/Boeing bill passed the U.S. House of Representatives today.  This bill is designed to allow U.S. companies to create U.S. jobs…and specifically prevent the Obama Administration from killing over 4,000 new SC Jobs because of pressure from union bosses.  We now need the U.S. Senate to take up this legislation and show the American people the same kind of courage and responsible government that Congressman Scott and the U.S. House gave us today.  Thanks Tim!

Here’s what the Post and Courier reported on Tim’s bill:

House passes Rep. Scott’s bill targeting Boeing labor case

By Brendan Kearney
Thursday, September 15, 2011


Photo by Wade Spees

U.S. Rep. Tim Scott, R-SC, questions the NLRB’s Lafe Solomon Friday at a House Committee on Oversight and Government Reform field hearing in North Charleston on June 17, 2011.

The U.S. House of Representatives has passed South Carolina Congressman Tim Scott’s bill to “prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer employment under any circumstance.”

The 1 p.m. vote broke largely along party lines, as expected, with the Charleston-area Republican’s colleagues supporting his bid to limit the federal agency’s authority.

Scott proposed the legislation this summer in response to the NLRB’s complaint against Boeing. The NLRB has alleged Boeing built a second 787 Dreamliner production facility in South Carolina in retaliation for union strikes at its main Washington state aircraft plant.

Scott’s bill, which is called the Protecting Jobs from Government Interference Act, prompted a heated debate on the House floor.

Republicans painted the legislation as an important step toward job creation. Democrats decried it as an attack on American workers’ rights, calling it “The Outsourcers’ Bill of Rights.”

The proposal is not expected to clear the Democratic-controlled U.S. Senate.

AP – House bill would block case on Boeing

GOP members want to prohibit NLRB from taking labor action on companies

The Associated Press

House Republicans, angry over the government’s labor dispute with Boeing Co., are taking up a bill that would prohibit the National Labor Relations Board from ordering any company to close plants or relocate workers, even if a company flouts labor laws.

The measure would undercut a high-profile lawsuit filed in April that accuses Boeing of violating labor laws by opening a new production line for its 787 airplane in right-to-work South Carolina. The board says Boeing is punishing unionized Washington state workers for past strikes.

Boeing has vigorously denied the allegations, claiming the move was an economic decision. Business groups claim the board has overstepped its bounds, and say no agency should have the right to dictate where a company can or cannot create jobs.

While the bill is likely to pass the GOP-controlled House when it comes up for a vote Thursday, it is not expected to gain traction in the Senate, where Democratic leaders strongly oppose it. The Obama administration and labor groups say the bill would cripple the government’s ability to enforce labor laws.

The case has become a major issue in the Republican presidential campaign, in which South Carolina is an early primary state. Touring the new Boeing plant in South Carolina on Monday, GOP presidential candidate Mitt Romney called the lawsuit “political payback” from the White House to unions.

“Businesses ought to be able to set up operations wherever they think it’s best for their success,” said Minnesota Rep. John Kline, chairman of the House Committee on Education and the Workforce. “They ought to be able to make those decisions without a body like the NLRB being able to come in and disrupt that.”

AFL-CIO president Richard Trumka said Republicans are exaggerating what he called a routine step by the board to enforce a law that has been on the books for more than 70 years. The National Labor Relations Act prohibits companies from retaliating against workers who exercise union rights by moving their jobs away.

“This is sweeping legislation that would gut the NLRB and result in serious, harmful changes to jobs and workers’ rights across the country,” Trumka said.

If the bill became law, Trumka said, a company could simply close a plant and move to another state if workers complained of unsafe working conditions or discrimination.

The Boeing case is being heard by an administrative law judge in Seattle. It could be months or years before it is resolved.

Business groups including the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Federation of Independent Business launched radio ads this week condemning the board for the Boeing case and other pro-union actions they say interfere with the economic recovery.

5/23/11 – Victory for Voter ID, Immigration Reform and More

With the end of session quickly approaching, I wanted to brief you on the latest news coming from the State House. [Read more...]