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Boeing jets
(Boeing Dreamscape)
HR 2587, the bill House Democrats have dubbed the Job Outsourcers' Bill of Rights, comes to a vote on Thursday. As I've written, this bill does not make it legal for companies to retaliate against workers exercising their rights, but it strips the National Labor Relations Board of the power to do anything about the company's illegal actions.

A group of legal experts (PDF) and academics have put out a statement on the effects of such a bill:

If enacted, HR 2587 will eliminate the ability of the NLRB and the courts to effectively remedy any discriminatorily motivated decision to transfer work from employees or eliminate their jobs not for legitimate business reasons, but because the employees have engaged in union or other NLRA protected activity. It will also eliminate any meaningful remedy for an employer’s refusal to bargain with a union in circumstances where it is required to do so before transferring or contracting out work performed by workers the union represents.

[...]

[T]he impact of HR 2587 would go well beyond overruling the Acting General Counsel’s actions in the Boeing case. If enacted, it will give tacit permission to employers to punish any segment of their workforce that chooses to unionize or to exercise the right to strike by eliminating their jobs. [...] Employers will be able to eliminate lines of work, hire subcontractors, switch jobs to non-union facilities or transfer them out of the country in violation of the NLRA—secure in the knowledge that the Board will be unable to order it to undo those actions.

In short, while House Republicans had the idea of changing the law because of Boeing, they're only too happy to eviscerate protections for all workers in the process. Speaking about the bill, Rep. George Miller asked:

"So, this is my question: Will the Republican leadership work with us to create good jobs in this country and give Americans the opportunity to get ahead in this economy, or will they continue to only help those who are already ahead?" said Miller.

Despite assuming that was a rhetorical question, I'm going to go ahead and answer it "no."

Originally posted to Daily Kos Labor on Tue Sep 13, 2011 at 12:01 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Why are these folks lining up for every (0+ / 0-)

    corporation and billionaire in the country and thumbing their nose at everybody else and still get votes, ANY VOTES?????  Why do we not have ad messaging every time one of these cocksockers to this?

    We have a generation of leaders – Merkel, Sarkozy, Obama, Cameron – who don't seem to have the faintest idea of what they're doing. Politics is now nothing more than people saying hopeful things with their fingers crossed... - David Hare

    by glitterscale on Tue Sep 13, 2011 at 12:47:02 PM PDT

  •  This legislation will not pass the Senate (1+ / 0-)
    Recommended by:
    nextstep

    and the President would never sign it. This issue with Boeing should be decided in court. People I know who practice law in this area seem confident that Boeing will win and that the NLRB really reached for this decision.

    "let's talk about that"

    by VClib on Tue Sep 13, 2011 at 12:59:42 PM PDT

    •  Frankly I don't agree (0+ / 0-)

      Boeing said the magic words that every labor law treatise says you shouldn't say.  They pointed to labor costs associated with union activity as the motive for closing the plant.  That is not an overreach on the part of the Board.

      Fact are stubborn things. -John Adams

      by circlesnshadows on Tue Sep 13, 2011 at 01:37:44 PM PDT

      [ Parent ]

      •  circlesnshadow - I am no expert (1+ / 0-)
        Recommended by:
        nextstep

        But the people I know point to the fact that no workers in Seattle were terminated and that this was all new business. It wasn't like Boeing opened a new plant and closed the old one. All the employees in Seattle are still at work.  It is also my understanding that a company can add new capacity anywhere in the world for any reason, including non-union labor and lower labor costs. However, as I noted I have no expertise in this area.

        "let's talk about that"

        by VClib on Tue Sep 13, 2011 at 01:47:44 PM PDT

        [ Parent ]

        •  In practice, yes (1+ / 0-)
          Recommended by:
          VClib

          But what the company specifically said was that they were moving a plant to South Carolina that would have been in Seattle because of labor costs they feared would be associated with union activity.  It is irrelevant that all of the employees are still at work.  The threat of outsourcing on the basis of labor discrimination is coercive and the Act exists to prevent that sort of coercive employer activity.  I may be embedded on the union side on this one but I've also heard plenty of labor law professors express support for the General Counsel's position on this one.  

          When you say the magic words, you have violated the Act.  We like to tease the efficacy of the NLRA because sometimes it's as easy as saying anything other than the magic words.  But this is a case where Boeing said exactly what they're not supposed to say.  The only reason it's not open and shut is politics and job optics.

          Fact are stubborn things. -John Adams

          by circlesnshadows on Tue Sep 13, 2011 at 02:31:01 PM PDT

          [ Parent ]

          •  Building not moving (0+ / 0-)

            Slight correction...Boeing built it's new Dreamliner production plan in SC, they didn't move production or any plant out of Washington.

            Was it retaliation for Union activity, probably, but the simple answer is for the UAW, and Mechanist Unions to organize the new plant if that's what the workers there want.

            •  no, the answer is even more simple (0+ / 0-)

              Boeing broke the law.  It is illegal to build a plant somewhere with the intention of escaping a labor union.  Period.  Boeing can wave its arms all it wants about "we didn't move anyone" and "nobody lost their job". It doesn't matter diddley doo. They were stupid enough to say, out loud, that the reason for locating the plant where they did was to escape the union.  And that is flat-out inescapably illegal.  They simply have no legal defense to that.

              The standard remedy for that sort of labor law violation is a "bargaining order", which orders the company to recognize and bargain with the union, period.

              •  Ehh (0+ / 0-)

                I wouldn't go that far.  Bargaining orders are considered strong remedies, not standard remedies.  The standard remedy from the NLRB is "knock it off", "post a memo", and "make them whole", minus earned wages (including unemployment insurance).  

                Fact are stubborn things. -John Adams

                by circlesnshadows on Thu Sep 15, 2011 at 09:04:40 AM PDT

                [ Parent ]

          •  Boeing made it into a threat during contract talks (0+ / 0-)

            Threats made to influence a contract vote are explicitly prohibited. The law is VERY CLEAR on this point.

            Gasoline made from the tar sands gives a Toyota Prius the same impact on climate as a Hummer using gasoline made from oil. ~ Al Gore

            by Lefty Coaster on Wed Sep 14, 2011 at 09:52:46 PM PDT

            [ Parent ]

          •  you are precisely correct (0+ / 0-)

            Under Federal labor law, it is illegal to locate a plant, or relocate it, or even threaten to move it, in order to escape a labor union.  Period.

            Most companies, of course, aren't stupid enough to admit out loud that this is what they are doing.

            •  Actually (0+ / 0-)

              The commnet from the Boeing exec was made during and interview, not a negotiation.  

              The all american comapny Caterpillar has a sister plant in the southeast for every UAW plant in the midwest that makes, manufactures, assembles the exact same thing as the other plant does.  IF the UAW strikes the midwest facilities, the plants in the south can ramp up and cover the lost production from the plants that are on strike.  How long before the NLRB tells caterpillar they have to close down the plants in the south?

              “I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

              by Dose o Reality on Thu Sep 15, 2011 at 05:27:18 AM PDT

              [ Parent ]

              •  it doesn't matter where the comment was said (0+ / 0-)

                Once the company admits, in any way or form, that it is locating or relocating a plant to avoid a union, the game is over.  That is a violation of Federal labor law.  Period.

                It is of course extremely difficult to prove in a legal proceeding that a company was motivated by avoiding a union. The Boeing case is unique precisely because they were stupid enough to admit it out loud.

                As for Caterpillar being an "all American company", your ignorance is showing. Caterpillar has plants located in China, South Africa, and Australia, and was one of the primary corporations that lobbied heavily against the "Buy American" provision that was originally written into the Obama stimulus bill, and was gutted under corporate pressure.

        •  Threats to influence a contract vote are unlawful (0+ / 0-)

          Boeing made it into a club to extract concessions from workers during a contract negotiation. The law is VERY CLEAR on this point.

          Despite the threat we turned down that company's lowball offer  anyway because it would have took so much away from us.

          Gasoline made from the tar sands gives a Toyota Prius the same impact on climate as a Hummer using gasoline made from oil. ~ Al Gore

          by Lefty Coaster on Wed Sep 14, 2011 at 09:59:18 PM PDT

          [ Parent ]

        •  I do have some expertise, since I filed an (0+ / 0-)

          awful lot of unfair labor practice complaints with the NLRB over the years.

          Your understanding is completely wrong. The law is excruciatingly clear----it is illegal to locate (or relocate) a plant if any part of the reason for so doing is to escape a labor union.

          Period.

          End of debate.

          And Boeing apparently admitted that this is exactly what they did. This is a fight that Boeing has no legal leg to stand on.

          As for your lawyer friends, it sounds as if not a one of them is a labor lawyer.  Any first-year labor-law student would know the provisions of the Wagner Act.

          •  What are the rules? (0+ / 0-)

            Since you say "the law is excruciatingly clear", I assume you are talking about statutory law (as opposed to case law which can be overturned by the courts) or regulations developed under the auspices of the law. Do you have a cite for this?

            I'm wondering because I'm trying to figure out if a business violates this law if they select a plant site

            1. ONLY,
            2. PRIMARILY, or
            3. to ANY EXTENT
            to avoid Unionization of the site.

            Also, does this apply ONLY to businesses which already have Union employees somewhere or does it apply, for example, to businesses with no Unionization selecting their first site?

            I have to believe there are hundreds of thousands of businesses that have selected a plant site, possibly their first, to avoid Unionization to some extent. If that is illegal, why haven't we heard more about NLRB pursuing these claims against businesses regularly? For example, I have a hard time believing that Walmart doesn't include to some extent a state's 'right to work' status when deciding where to open stores and, especially, distribution centers. Has the NLRB just been afraid to pursue these cases knowing that it would lead to the law being changed to limit the restriction on this practice to decisions primarily motivated by retaliation?

            •  the case law is clear (0+ / 0-)

              It is illegal to do anything, anywhere, to avoid a union.  Workers have the legal right to "concerted activity", and employers have no right whatever to interfere with that. If you list a thousand reasons for doing something, and one of those reasons is "to avoid a union", that is illegal.

              You are of course entirely correct that companies do it all the time anyway. And it is all illegal.  The problem is that PROVING this was one of their reasons is very very very difficult, and so charges are virtually never filed over it.  That's what makes the Boeing case so startling--they were apparently stupid enough to declare their motives out loud--which cooks their goose.

            •  some additions . . . (1+ / 0-)
              Recommended by:
              WillR
              Also, does this apply ONLY to businesses which already have Union employees somewhere or does it apply, for example, to businesses with no Unionization selecting their first site?

              Federal labor law protects "concerted activity". That means it applies to any situation, under any circumstances, where two or more employees are together attempting to alter or change their terms or conditions of employment.  No union is necessary--ALL workers have the protection of Federal labor law whether they are in a union or not.

              I assume you are talking about statutory law (as opposed to case law which can be overturned by the courts) or regulations developed under the auspices of the law.

              The statutory law is Section 7(a) of the Wagner Act, which protects "concerted activity". Most of the case law regarding what is or isn't "concerted activity" was settled half a century ago.The Repugs would be pretty ballsy to try to reverse it now--although they might try.

              BTW, labor law is not heard by or enforced by Federal courts--it is done through Administrative Law Judges, the same ones who hear administrative cases in the other Federal agencies such as SEC or Social Security.

              ALJ's are pretty nonpolitical--they are appointed on the basis of civil service tests, and they do not have to be confirmed by the Senate.

              The NLRB members themselves, of course, are entirely political.

    •  WTF??? really???? (0+ / 0-)

      Taking your word for it, I have no Idea. But "People I know who practice law in this area seem confident that Boeing will win and that the NLRB really reached for this decision."

      Is totally unacceptable.

      people are hurting man. and if Boeing is doing nothing wrong, create those jobs NOW!!!!!

      I mean really. dont you people get it. Working people need Jobs!!! Now.

      WTF is this even an issue. assuming what you say is correct.

      I just dont get it. You are saying that Boeing is in the right. And thousands of jobs are being killed. WTF????

      What the HELL is the problem here, really. Explain it to me????

      •  he's wrong (0+ / 0-)

        Boeing is not in the right. And the lawyer friends he is talking to don't understand labor law.

      •  Xdust - Boeing built the plant (0+ / 0-)

        The plant has been completed in South Carolina and Boeing has hired local employees and is manufacturing planes. No jobs were lost in Seattle and hundreds of new jobs were created in South Carolina. The issue is will the new employees in South Carolina be represented by the union and what damages Boeing will have to pay if they are found to be n violation of the labor laws.

        "let's talk about that"

        by VClib on Thu Sep 15, 2011 at 06:44:30 AM PDT

        [ Parent ]

        •  they likely will have no damages to pay (0+ / 0-)

          Under Federal labor law, the only damages that are paid are back wages, and there are none involved here. (For msot labor law violations which do not involve any back pay, the only legal penalty for violating the law is, literally, to be told not to do that again. That is one reason why so many companies simply break the law, deliberately and with malice aforethought, with impunity.)

          A possibility is that we may see a "bargaining order", which is sometimes issued when a company breaks the law to attempt to avoid a union. A bargaining order is simply an order from the court to recognize the union and begin bargaining with it, without going through the process of an NLRB election.

  •  Just as a general legal principle (0+ / 0-)

    A legal right is nothing without legal enforcement.  There is no private cause of action under the NLRA.  If the Board cannot enforce against certain actions, those actions are de-facto lawful.

    This bill, if it became law, would effectively eviscerate union rights in America.  Because the right to organize and collectively bargain means nothing if nothing can stop a company from closing up shop and moving any time a union says a word.

    That's what this bill is about; destroying unions once and for all.  Any other argument by Republicans is simply a pretense.

    Fact are stubborn things. -John Adams

    by circlesnshadows on Tue Sep 13, 2011 at 01:31:54 PM PDT

  •  This is sad... (0+ / 0-)

    ...there in nothing more based on capital shareholder greed, than outsourcing... and to justify/legitimize outsourcing is handing the country over to that greed...

    GOP = Grossly Ostentatiously Preposterous

    by Poetic Mind on Tue Sep 13, 2011 at 01:44:37 PM PDT

  •  And to think I heard a union member (4+ / 0-)

    on the radio today saying she was so disillusioned with President Obama's handling of the economy that she was considering voting Republican. Apparently people like her have been living under a rock for the last year.

  •  Dammit, stop writing things I have to tip and rec (1+ / 0-)
    Recommended by:
    Lefty Coaster

    It's getting monotonous.

    And if the Blue Sky Mining Company won't come to my rescue, if the sugar refining company won't save me, who's gonna save me?

    by Geenius at Wrok on Wed Sep 14, 2011 at 08:13:35 PM PDT

  •  #%$@^& (0+ / 0-)

    Ya know...every other day I find myself reading and thinking, "unfuckingbelievable, these people."

    I don't even know why I still react.  I feel like I should be used to this by now...

    "The most potent weapon in the hands of the oppressor is the mind of the oppressed." ~ Steven Biko

    by Marjmar on Wed Sep 14, 2011 at 08:21:59 PM PDT

  •  We Need to Play Hardball (2+ / 0-)
    Recommended by:
    indie17, Lily O Lady

    People, we need to play hardball and get in the game.

    The Republicans are rolling us every day, and people either don't care or are numb about it.

    They will continue to try to grab as much power as possible to dismantle our democracy.

    The Republicans are modern day neo-Fascists, pure and simple.
    If they could get power and then nullify our democracy so they could keep power, they would.  

    I really fear for our democracy at this point...not just because the Republicans are so ruthless, but because too few good people stand up and fight them politically.

    We need to be more ruthless, more tough, and fight even harder...we know the answers but we are not good at selling it to the people...the GOP knows how to do propaganda better...

    If this doesn't change we may as well give up on our country...

  •  I don't see what difference it will make. (1+ / 0-)
    Recommended by:
    flight2q

    The NLRB has no teeth when  it comes to anything but really big Boeing type cases. Neither are the courts able to enforce their rulers either.

    The Union Stagehands here in West Palm Beach were fired from our Performing Arts Center for being in a Union 11 years ago.

    The NLRB has ruled in their favor twice: that was Dubya's NLRB by the way.  State and Federal Courts have done the same. They have not been hired back with a new contract, they have not collected millions in back pay.

    No fines of any kind have been imposed. The whole pursuit has been useless,  so how will it change if this new law is enacted?

  •  Would Obama veto? (1+ / 0-)
    Recommended by:
    Lefty Coaster

    Can you guess, from his clear ideology, what he would do? What would be the adult thing to do? What is the moderate, Third Way, thing to do.
    I would say that he would sign it into law if it came to his desk.

    "How I hate those who are dedicated to producing conformity." William S Burroughs

    by shmuelman on Wed Sep 14, 2011 at 08:41:11 PM PDT

  •  What? They didn't try bury it in a bigger bill? (1+ / 0-)
    Recommended by:
    bobdevo

    Gasoline made from the tar sands gives a Toyota Prius the same impact on climate as a Hummer using gasoline made from oil. ~ Al Gore

    by Lefty Coaster on Wed Sep 14, 2011 at 09:46:45 PM PDT

  •  Here's what the Senate should do... (2+ / 0-)
    Recommended by:
    Lefty Coaster, flight2q

    Strip out the House language, substitute it with the Employee Free Choice Act, and send it back to the House.  Won't go anywhere but it would help drive the debate on labor law reform back to where it should be.

    As for the Boeing case itself, the General Counsel of the NLRB is NOT seeking to deprive Boeing of the right to build or operate a plant in South Carolina.  The remedy sought is to keep work currently being done in Seattle at the Seattle plant.  This essentially means converting an assembly shift which is currently classified as temporary to permanent.  Any NEW work could be shifted to South Carolina.  This whole argument is based on false premises and a deliberate misrepresentation of the National Labor Relations Act.  

    Ask anyone who deals with the NLRB regularly as I have for 30 years on behalf of unions and their members if the NLRB, even the current NLRB, is some pro-union activist agency.  Prepare for a hearty laugh.

  •  Oh and btw Daily Kos,American Apparel is non-union (1+ / 0-)
    Recommended by:
    WillR

    Now that Daily Kos has a separate blog on labor issues, you need to walk the walk and not just talk the talk.  Get your t-shirts from union-made manufacturers.  Just sayin...

  •  can anyone ANYONE explain this to me? (0+ / 0-)

    how is it that everything gets the Republican label? we have a Dem prez in the White House and in control of Senate with public disapproving of Congress at all time low.

    How does something like this even see the light of day?

    Even if the Dems are not complicit, they are worse. They have no clue. They are ineffective, blind, stupid.

    We call the Rethugs stupid? I don't think so... the liberal intellectuals are the stupid ones. I am so tired of this crap and the lopsided: oh it's all the republicans fault.

    when good Dems do nothing...

    this just makes me sick.

  •  Since any regressive law such as this (0+ / 0-)

    would be immediately vetoed by any president who dared call himself/herself a democrat . . .  and Republicans don't have the votes to override a presidential veto . .  . why should we care?

    I tremble for my country when I reflect that God is just; that his justice cannot sleep forever. ~Thomas Jefferson

    by bobdevo on Thu Sep 15, 2011 at 03:57:57 AM PDT

  •  Stop (0+ / 0-)

    laying down for these criminal CEO and their bought and paid for lackeys and start EATING THE CRIMINAL RICH.

  •  Good Example (0+ / 0-)

    Of uninteded consequences where an unelected group of bureaucrats (NLRB) chose to meddle in the affairs of a company and over reaction  by a group of lawmakers to the meddling.....  

    “I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

    by Dose o Reality on Thu Sep 15, 2011 at 05:19:12 AM PDT

    •  nonsense (0+ / 0-)

      Boeing broke the law.  NLRB's job is to enforce the law.

      I do understand that the libertarian rightwing anarchists would rather not have any laws at all. Fortunately, no one listens to them. They're nutty. (shrug)

      •  Boeing did not break the law (1+ / 0-)
        Recommended by:
        Dose o Reality

        This whole issue needs to go away. Boeing in NOT moving work - this is NEW work for new orders. People in the existing plant are not losing their jobs.

        Companies have a right to build where they want. And yes, the labor climate is a factor - maybe the biggest. But the NLRB action is just plain ill-advised.

        Now, if Boeing was closing a plant in WA to move the work to SC, fine - they should be stopped. But, opening a brand new facility to build planes for which they do not have the capacity in WA to build at the rate they can sell them - gov't should have left hands off.

        Obama is not defending the NLRB - he is keeping hands off - telling you he is not on board.

        The liver is evil - It must be destroyed

        by somewhere in ohio on Thu Sep 15, 2011 at 07:49:48 AM PDT

        [ Parent ]

        •  yes it did (0+ / 0-)

          Whether the work is new or old is utterly irrelevant.  Whether anyone at the old plant lost their jobs or not is utterly irrelevant. Boeing put the plant there so they could avoid a union--and were stupid enough to say so out loud.  And that is illegal under Federal labor law.  Period.

          And whether Obama likes or doesn't like it is also irrelevant. NLRB cases are decided by Administrative Law Judges, not by Federal Court Judges. Obama doesn't have dick to say to them.  (shrug)

          •  No it didnt (1+ / 0-)
            Recommended by:
            somewhere in ohio

            You know the law very well do ya sport.  No one on strike, no one being displaced, no law broken.  If the law were as you think it is in your simple little mind, then every company that built a plant in a right to work state would be breaking the law....

            “I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

            by Dose o Reality on Thu Sep 15, 2011 at 08:18:17 AM PDT

            [ Parent ]

            •  You don't have the facts straight (0+ / 0-)

              It is true that no workers in Seattle have been displaced- YET.  However, Boeng added an assembly line in Seattle to perform work on the 787 and has classified that line as temporary pending completion of the South Carolina plant.  It was in the context of negotiations over whether the 787 would be completed in Seattle that Boeing made its unlawful threats.  Therefore the remedy being sought is to keep the assembly line in Seattle open once the South Carolina plant is completed.  Any NEW work could lawfully be placed in South Carolina, or anywhere else Boeing chooses.

              I've been doing this (labor law) for 30 years and have handled 100's of cases at the NLRB, so I do know the law in this area a bit.

            •  yes it did. (0+ / 0-)

              Your ignorance of labor law is showing.  Again.  There doesn't have to be any strike for section 7(a) to apply.  There doesn't even have to be a union.

              And every company that builds a plant in a right-to-work state with the intention of evading a union IS breaking the law.

          •  And my comment about Obama (0+ / 0-)

            Was to point out the he realizes this move by the NRLB is bone-headed - and does not want to get any one him when it goes down.

            The liver is evil - It must be destroyed

            by somewhere in ohio on Thu Sep 15, 2011 at 08:49:31 AM PDT

            [ Parent ]

  •  Thank you, Laura (0+ / 0-)

    I've called my congressman Adam Smith, WA-09; it appears that Dems will be united against this bill.

    However, I warned his staff that I would examine roll calls and put Dems who vote for the bill ON A LIST.

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