[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

UNIONIZATION THROUGH REGULATION: THE NLRB'S HOLDING PATTERN ON FREE
ENTERPRISE

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HEARING

before the

COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

JUNE 17, 2011

__________

Serial No. 112-66

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Printed for the use of the Committee on Oversight and Government Reform

Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform

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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana ELIJAH E. CUMMINGS, Maryland,
JOHN L. MICA, Florida Ranking Minority Member
TODD RUSSELL PLATTS, Pennsylvania EDOLPHUS TOWNS, New York
MICHAEL R. TURNER, Ohio CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah DENNIS J. KUCINICH, Ohio
CONNIE MACK, Florida JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
ANN MARIE BUERKLE, New York GERALD E. CONNOLLY, Virginia
PAUL A. GOSAR, Arizona MIKE QUIGLEY, Illinois
RAUL R. LABRADOR, Idaho DANNY K. DAVIS, Illinois
PATRICK MEEHAN, Pennsylvania BRUCE L. BRALEY, Iowa
SCOTT DesJARLAIS, Tennessee PETER WELCH, Vermont
JOE WALSH, Illinois JOHN A. YARMUTH, Kentucky
TREY GOWDY, South Carolina CHRISTOPHER S. MURPHY, Connecticut
DENNIS A. ROSS, Florida JACKIE SPEIER, California
FRANK C. GUINTA, New Hampshire
BLAKE FARENTHOLD, Texas
MIKE KELLY, Pennsylvania

Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Robert Borden, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director

C O N T E N T S

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Page
Hearing held on June 17, 2011.................................... 1
Statement of:
Haley, Nikki, Governor of the State of South Carolina; and
Alan Wilson, attorney general of the State of South
Carolina................................................... 136
Haley, Nikki............................................. 136
Wilson, Alan............................................. 138
Ramaker, Cynthia, employee, the Boeing Co.; Neil Whitman,
president, Dunhill Staffing Systems; Lafe Solomon, acting
general counsel, National Labor Relations Board; Philip
Miscimarra, labor attorney, Morgan, Lewis & Bockius LLP;
and Julius Getman, professor, Earl E. Sheffield Regents
Chair, University of Texas School of Law................... 40
Getman, Julius........................................... 81
Miscimarra, Philip....................................... 63
Ramaker, Cynthia......................................... 40
Solomon, Lafe............................................ 56
Whitman, Neil............................................ 50
Letters, statements, etc., submitted for the record by:
Getman, Julius, professor, Earl E. Sheffield Regents Chair,
University of Texas School of Law, prepared statement of... 83
Gowdy, Hon. Trey, a Representative in Congress from the State
of South Carolina, letter dated June 17, 2011.............. 9
Issa, Hon. Darrell E., a Representative in Congress from the
State of California:
Jim Albaugh interview.................................... 111
Letter dated June 14, 2011............................... 102
Letter dated June 16, 2011............................... 146
Prepared statement of.................................... 4
Prepared statements of Meredith Going and Dennis Murray.. 21
Maloney, Hon. Carolyn B., a Representative in Congress from
the State of New York, letter dated June 16, 2011.......... 33
Miscimarra, Philip, labor attorney, Morgan, Lewis & Bockius
LLP, prepared statement of................................. 65
Ramaker, Cynthia, employee, the Boeing Co., prepared
statement of............................................... 43
Solomon, Lafe, acting general counsel, National Labor
Relations Board, prepared statement of..................... 58
Whitman, Neil, president, Dunhill Staffing Systems, prepared
statement of............................................... 53
Wilson, Alan, attorney general of the State of South
Carolina, prepared statement of............................ 140

UNIONIZATION THROUGH REGULATION: THE NLRB'S HOLDING PATTERN ON FREE
ENTERPRISE

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FRIDAY, JUNE 17, 2011

House of Representatives,
Committee on Oversight and Government Reform,
North Charleston, SC.
The committee met, pursuant to notice, at 12:05 p.m., at
the Charleston County Council Chambers, the Lonnie Hamilton
Building, 4045 Bridge View Drive, North Charleston, SC, Hon.
Darrell E. Issa (chairman of the committee) presiding.
Present: Representatives Issa, Gowdy, Ross, Farenthold,
Maloney, Norton, Kucinich, and Braley.
Also present: Representatives Wilson and Scott.
Staff present: Robert Borden, general counsel; John
Cuaderes, deputy staff director; Linda Good, chief clerk;
Christopher Hixon, deputy chief counsel, oversight; Justin
LoFranco, deputy director of digital strategy; Jeff Solsby,
senior communications adviser; and Sharon Meredith Utz,
research analyst.
Chairman Issa. Can I ask everyone to please be seated? This
committee will come to order.
Before we begin, I know a lot of people out there came from
far and wide to be here. The only thing I would ask is that you
respect that there are no winners, no losers, no right side,
and no wrong side in a congressional hearing. So I hope you
will understand that we don't want to hear boos. We don't want
to hear applause. If you will do that for us, we would sure
appreciate it.
Additionally, it is a normal rule of this committee that
there is only an opening statement for the chairman and ranking
member, and that is tradition. What we are going to do, though,
is do an opening statement for chairman and ranking member, and
then I am asking unanimous consent for additional 2 minutes for
each Member that wants to make an opening statement.
Without objection, so ordered. And we will begin.
The Oversight Committee mission is to secure fundamental
principles. First, Americans have a right to know that the
money Washington takes from them is well spent. And second,
Americans deserve an efficient, effective Government that works
for them. Our duty on the Oversight and Government Reform
Committee is to protect these rights.
Our solemn responsibility is to hold Government accountable
to taxpayers because taxpayers have a right to know what they
get from their Government. We will work tirelessly, in
partnership with citizen watchdogs, to deliver the facts to the
American people and bring genuine reform to the Federal
bureaucracy.
I would ask unanimous consent that two colleagues from
South Carolina, Mr. Joe Wilson and Mr. Tim Scott, who are not
members of the committee, be allowed to participate fully
today.
Without objection, so ordered.
I want to begin by thanking the Charleston County Council,
whose facilities are being so generously provided today, for
their help in making this hearing possible.
And Mr. Scott, I want to thank you for the use of your
chair, which you once filled here in that role.
I also want to recognize Mr. Gowdy, an active member of
this committee and someone who has spotlighted this behavior
and this issue from the time AmericanJobCreators.com became
directly aware of it.
Today's hearing is about the effect that NLRB's acting
general counsel's decision to bring suit against the Boeing Co.
is having on thousands of jobs in South Carolina. It is the
fundamental responsibility of the National Labor Relations
Board to protect the rights of employees and employers and to
prevent practices that will harm the general welfare of
workers, businesses, and the U.S. economy.
It is this chair's opinion that on all of these points,
NLRB action may have failed. The jobs of thousands of workers
at what is today a nonunion worksite in South Carolina are at
risk.
The investment Boeing put into the South Carolina facility,
valued at more than $1 billion, is now in jeopardy, and
production of portions of 835 planes, most of which will be
exported, that have already been ordered is now in jeopardy.
Timely delivery is essential, and without this facility, it is
unlikely commitments will be met.
And finally, Mr. Solomon's decision, which has been
described in ways that I am going to leave out of my opening
statement, could, in fact, lead to repercussions in America's
competitiveness and in decisions by other businesses to locate
in right-to-work States or, in fact, foreign companies to
locate in America at all.
Often, when you believe that you are helping one party, you
may be hurting the party you intend to help. Seattle's economy,
which is very good in aerospace, may be hurt by decisions not
to allow new facilities be put there in the future for fear
that they could not be expanded on in the future in other
areas.
As an entrepreneur and business owner myself, I know well
the decisionmaking process that goes into decisions about where
to locate a plant, warehouse; when to hire employees; and what
to invest to grow your company and jobs.
Evidence suggests Boeing's decision to build the new
assembly plant in South Carolina was simply an act of
managerial discretion and not an effort to discourage employees
from engaging in protected activities under the National Labor
Relations Act. If Boeing's actions were lawful and proper and
made on the basis of multiple factors and in the best interest
of the company, its workers, and the people of South Carolina,
then why has the NLRB acting general counsel sued them?
Moreover, how can the President expect the private sector
to create jobs and put Americans back to work if his appointees
continue to use the regulatory process to keep putting
impediments in their path? Why would the administration stand
in the way of reindustrialization of the American work force
and strengthening one of the major industries where we still
have a competitive global advantage?
Any appearance that Mr. Solomon's decision was tailored to
reward the President's powerful financial and political
supporters--big labor--would be disturbing. The American people
deserve to know if so-called independent regulatory agencies
are exceeding their legal authority to pursue a partisan
agenda.
And finally, I want to make the point about the difficulty
the committee had in securing Mr. Solomon as a witness.
Fortunately, he is here today. And for that, I thank you.
But he is here because of a compulsory process, and I am
increasingly concerned that the use of subpoena, which has not
been historically needed, may be a sign that there is a
constitutional challenge forming between the Congress's
legitimate oversight and the executive branch, including their
quasi-independent agencies.
And with that, I recognize the gentlelady from New York for
her opening statement.
[The prepared statement of Hon. Darrell E. Issa follows:]

[GRAPHIC] [TIFF OMITTED] T1079.001

[GRAPHIC] [TIFF OMITTED] T1079.002

[GRAPHIC] [TIFF OMITTED] T1079.003

Mrs. Maloney. Thank you so much, Mr. Chairman.
And I thank all my colleagues for being here. It is
wonderful to be in South Carolina, in Charleston. And welcome
to all of our witnesses.
We are gathered here today at a time when employment is the
most crucial issue facing our country. Roughly 13\1/2\ million
Americans are unemployed. The labor force participation rate is
still at a low not seen in over a generation.
The focus of our inquiry today should be how Republicans
and Democrats can work together to encourage businesses to
invest and put Americans back to work in South Carolina and
elsewhere in this country.
This case is not about creating jobs in South Carolina.
This case is not about Everett, Washington, workers against
Charleston workers. This case is about a company thinking it is
above the law because it is a multibillion dollar,
multinational corporation.
If Boeing moved jobs into a nonunion factory 10 miles down
the road from its Everett plant because workers have protested
working conditions, its decision would be just as illegal. But
that is not why we are here. Instead, this hearing actually
concerns the economic consequences of a potential illegal act
allegedly committed by the Boeing Co. and the legitimate law
enforcement action taken this week by the National Labor
Relations Board to sanction it.
At issue in the Boeing case is whether Boeing illegally
retaliated against American workers for engaging in activity
that Congress has chosen to protect since 1935 and FDR, the
right to protest. No worker benefits for allowing a company to
explicitly break the law.
Just as it is illegal to discriminate against workers based
on their race or gender, it is also illegal to make business
decisions that discriminate against workers for exercising
their legal rights. The protected rights at stake in the Boeing
case apply to workers regardless of whether or not they are
unionized, whether or not they live in South Carolina or
anywhere in our great Nation, and, of course, regardless of
politics.
Boeing is a very important company to our country. With its
workers, they make outstanding products. They export. They are
our biggest exporter.
I support creating great jobs and reducing unemployment
across the United States, but I also believe that Boeing is not
above the law. And as Members of Congress, we should not set
aside the law to give preferred treatment to any one company.
The NLRB is part of our justice system, and it should be
given the opportunity to do justice in the Boeing case. That is
the only way to ensure that all workers, even those here
working for Boeing in South Carolina, are protected.
That is why I am very concerned about the timing of this
hearing and the chairman's insistence on it and his insistence
that Mr. Lafe Solomon, the general counsel and chief prosecutor
of the case, testify while the Boeing hearing is currently
underway. His testimony today raises serious concerns about the
due process rights of litigants and the integrity of the Boeing
proceeding.
Mr. Chairman, as you know, I am a strong believer in the
importance of congressional oversight. But I do not believe
that we should interfere with active prosecutions under the
guise of oversight. We must act prudently and respect the
judicial process. I hope that you will exercise your discretion
as chair of the committee and direct the Members today to avoid
asking questions of Mr. Solomon which could, in any way, put a
fair trial and due process at risk.
If you do not, I believe you may, intentionally or not,
permit the legal process to be tainted by political
interference. This simply does not serve any legitimate goal of
this committee or the U.S. Congress.
If, however, you take steps to protect the integrity of the
legal process and prevent an appearance, then I am confident
that today's hearing can shed some light on how to ensure that
all workers, whether in South Carolina or anywhere else in our
great country, can find employment and continue to have the
ability to bargain for rights and engage in protected activity.
Today, the middle class is in serious decline with wages
for the majority of workers stagnant and increasing numbers of
workers without access to health insurance and pension
benefits. There is no question that unions have contributed to
building the middle class in our country.
For instance, according to the Federal Bureau of Labor
Statistics, union workers are more likely than nonunion workers
to be covered for health insurance and receive pension benefits
and paid sick leave. We cannot ignore the critical role that
unions have played in building America by helping improve the
wages and working conditions of union and nonunion jobs alike.
In closing, I want to emphasize again that this hearing
puts at risk trying to use politics to influence the work of an
independent Federal agency. To intimidate is to affect the
outcome of a judicial proceeding. This is very dangerous to our
democracy. If we believe in the rules of law, we have to be
governed by due process institutions have created to resolve
these issues in a fair manner.
Again, I thank you for yielding to me and for calling this
hearing.
Chairman Issa. I thank the gentlelady.
We now recognize a local hero, Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman, for your leadership in
this area.
I also want to thank my colleagues, those that are in the
audience--our colleagues from State government; speaker of our
house; Attorney General Henry Brown, who served so ably in
Congress for many years; my two colleagues who are on the dais
with me, Representative Wilson, Representative Scott; and we
speak on behalf of those of our colleagues who are not here.
With that in mind, Mr. Chairman, I would ask unanimous
consent to place two letters from our Senators--Senator Graham
and Senator DeMint--into the record.
Chairman Issa. I have them. Without objection, so ordered.
[The information referred to follows:]

[GRAPHIC] [TIFF OMITTED] T1079.004

[GRAPHIC] [TIFF OMITTED] T1079.005

[GRAPHIC] [TIFF OMITTED] T1079.006

[GRAPHIC] [TIFF OMITTED] T1079.007

[GRAPHIC] [TIFF OMITTED] T1079.008

Mr. Gowdy. Mr. Chairman, the purpose of the National Labor
Relations Act is to promote the full flow of commerce, to
prescribe the legitimate rights of both employees and employers
in their relations affecting commerce, and to protect the
rights of the public in connection with labor disputes
affecting commerce.
In other words, the NLRA is supposed to strike a proper
balance between the rights of employees, employers, and the
public. But you would never know that for the actions of the
NLRB. Under the guise of enforcing the NLRA, the NLRB has
essentially become a sycophant for labor unions.
At a time when union membership is at a historic low, the
NLRB seeks to give unions a historically unprecedented level of
influence. Exhibit A is the NLRB's recent interaction with the
State of South Carolina.
Not only did the NLRB threaten to sue the State of South
Carolina for seeking to memorialize in our constitution
something as revolutionary as the right to a secret ballot,
this administration--not content with class warfare, not
content with generational warfare--now seeks to engage in
regional warfare, pitting workers in Washington State against
those who seek jobs in South Carolina.
Boeing has made airplanes in Washington for several
decades. And during the course of that time, there have been at
least four work stoppages which threatened Boeing's ability to
deliver airplanes to customers in a timely fashion. So Boeing
did what any responsible company would do. It looked to see
where best to start a new, separate, distinct line of work on
the 787 Dreamliner.
The union didn't like that, and they found a willing ally
in the NLRB. The NLRB filed a complaint against Boeing. And lay
aside the demonstrably false allegations of the complaint, lay
aside the unprecedented legal analysis, the NLRB wants to make
Boeing shut down its South Carolina facility, get rid of the
1,000 employees that have been hired, and return the work to
Washington State.
The spokesperson for the NLRB is quoted as saying this.
``We are not telling Boeing they can't build planes in South
Carolina. We are talking about one specific plane, three planes
a month. If they keep those planes, those three planes a month
in Washington State, there is no problem.''
Let that sink in for a second. An unelected executive
branch entity spokesperson is telling a private company what it
can make, where it can make it, and how much of it it can make.
According to the reasoning of the NLRB, it is fine for a new
company to consider wage rates, work stoppages, and take the
full panoply of factors into consideration in deciding whether
to pick a union State or a right-to-work State. But a company
who has already planted a flag in a union State cannot dare
consider starting a new line of work in a right-to-work State.
And make no mistake, this is a new line of work. Not one
single employee has lost a job in Washington State. Not one
single employee has suffered an adverse consequence as a result
of Boeing's decision to start a separate, distinct line of work
in South Carolina.
Despite congressional intent and clear Supreme Court
jurisprudence, union leadership and unelected NLRB attorneys
are now seeking to become managing partners in the business
affairs of American companies. South Carolina is confident
Boeing will be vindicated in a court of law. However, the
NLRB's jurisdictional overreach, coupled with its brazen
activism, threatens the future allocation of work by American
companies.
South Carolinians want to work, Mr. Chairman. We need the
jobs. We want to meet our familial and societal obligations.
Thank you, Mr. Chairman.
Chairman Issa. I thank you.
We now recognize the gentlelady from the District of
Columbia, Ms. Norton, for her opening statement.
Ms. Norton. Thank you very much, Mr. Chairman.
I wish I could say to my good friend, the chairman, that I
am pleased that he has called today's hearing.
Chairman Issa. I am pleased to have you here. [Laughter.]
Ms. Norton. But, Mr. Chairman, today's hearing makes
unfortunate history with an unprecedented appearance of an
abuse of the rule of law and constitutional due process.
Congress has obligatory oversight responsibilities over the
National Labor Relations Board and the National Labor Relations
Act. But when it threatens to issue a compulsory subpoena of
decisionmaking counsel in the middle of a legal proceeding, it
lends an appearance of intimidation.
Among other subjects, I have taught labor law as a tenured
professor of law at Georgetown University Law School and know
of the difficulty and close calls of these fact-laden cases and
of the pains Congress took to create an independent general
counsel and an independent board to avoid the appearance of
seeking to influence the outcome of a legal proceeding while it
is in progress and before any decision on the merits has been
made.
How else to interpret actions by Members of the House and
Senate, including threatening subpoenas, demanding the
privileged work product of counsel, and threatening to defund
the essential court here, the National Labor Relations Board,
before it has made a decision or even heard the case.
I may be a Member of Congress, but I am still a member in
good standing of the bar and an officer of the court. I have no
basis for a judgment on the merits of the ongoing proceeding in
my role as a Member of Congress, and I will not use this
hearing to try to influence the outcome.
I hope that following this hearing, this committee may once
again embrace the long tradition of Republican and Democratic
chairmen alike to avoid the possibility of appearing to taint a
legal proceeding by engaging in a hearing while the proceeding
is ongoing.
And thank you, Mr. Chairman.
Chairman Issa. I thank the gentlelady.
We now recognize the gentleman from Texas, Mr. Farenthold,
for his opening statement.
Mr. Farenthold. Thank you, Mr. Chairman.
It is good to be in South Carolina. I am here as a member
of the Government Oversight and Reform Committee and also as a
concerned Texan, a State that, like South Carolina, has worked
hard to create a business-friendly environment with low taxes,
reasonable regulations, and a great work force and a great
place to live.
Governor Perry and the legislature in the State of Texas
have worked hard to create much the same environment, and these
issues that affect South Carolina affect a whole lot of other
States as well. In fact, the State of Texas Attorney General
Abbott, along with 16 other attorney generals, have filed an
amicus brief in this proceeding.
And we have States like Alabama, Arizona, Florida, Georgia,
Idaho, Kansas, Nebraska, Oklahoma, South Dakota, Utah,
Virginia, and Wyoming. And they were also joined by non right-
to-work States like Colorado and Michigan. I think this is a
telling feature because this decision could have huge potential
impact on economic development.
In right-to-work States, it would create an environment
where companies are afraid to create new lines of business and
expand into those States. And in States that are non right-to-
work States, it creates the impression that, well, we don't
want to startup in those States because as we grow, we are
stuck in those kind of States. And that is absolutely the wrong
thing for the Federal Government to be doing, telling private
businesses where they can and cannot locate, where they can and
cannot grow their business.
We are in a climate right now in this Government where
regulatory and quasi-regulatory agencies are out really trying
to stop growth. I am deeply concerned that there is a concerted
effort on the part of this administration and its regulatory
agencies to punish States that have different philosophies than
they do, that believe in balanced budgets, that believe in
lower taxes and believe businesses are the place to create jobs
for people.
And this is a dangerous precedent that is being set, and
that is one of the reasons we are here today. It is not trying
to influence the outcome of something. It is trying to say it
never should have been started in the first place.
Thank you very much, and I yield back.
Chairman Issa. I thank the gentleman.
We now recognize the gentleman from Cleveland, Ohio, Mr.
Kucinich, for his opening statement.
Mr. Kucinich. Thank you very much, Mr. Chairman.
I want to associate myself with the remarks of Eleanor
Holmes Norton with respect to this procedure. I trust the chair
will take into account our concerns and will conduct himself
accordingly.
But I am concerned that the workers' rights, which the NLRB
decided have been violated by Boeing, would be further violated
through any infringement on right to due process, equal
protection of the law, right to fair trial through these
proceedings. But again, that is in the hands of the chair.
The question that faces us at its core--did Boeing
unlawfully retaliate against its Washington State workers, who
were lawfully exercising their right to strike? Boeing's
executive vice president Jim Albaugh told the Seattle Times,
when speaking of a move, ``The overriding factor was not the
business climate, and it was not the wages we are paying people
today. It was that we can't afford to have a work stoppage
every 3 years.''
Boeing planned to transfer jobs away from Washington State
and a unionized work force in the Seattle area to a nonunion
facility in South Carolina. The National Labor Relations Board
found that Boeing violated the National Labor Relations Act
when it made coercive statements and it threatened its
employees for engaging in legally protected activity, strikes,
and for transferring work from the same work force in order to
avoid the possibility of those workers engaging in protected
activity in the future.
There are 3,300 people currently working on the 787
Dreamliner in Everett. This operation is supposed to scale down
as the South Carolina plant is fully operational. But the
scaling down is, in effect, a transfer of work, which has been
correctly identified as retaliatory in violation of the
National Labor Relations Act.
I would say that it is not the NLRB, but it is Boeing that
has pitted one State against the other. It is Boeing that is
pitting one group of workers against another at a time of great
economic uncertainty and at a time when corporate profits
generally are rising during a jobless recovery.
I want to say, Mr. Chairman, I respect my colleagues on the
other side of the aisle who are here fighting for their
constituents. I respect that. That is what you are supposed to
do.
But we have a deeper question here, and that is did Boeing
violate the law? And if it did, are there remedies available to
the workers under that law?
And if the answer comes to be that it did, then the
remedies that are put to Boeing, it would be unfortunate if the
people in South Carolina would have to suffer. But Boeing is
going to have to have that on their account because this is
something that really relates to what the law is.
And finally, Mr. Chairman, Boeing--I think we ought to be
concerned about keeping jobs in this country. And it is
inevitable that Boeing is going to have to consider calling
work back from overseas when they outsource it and increase the
production curve and the delivery curve of their Dreamliner. So
we want the work to come back, and we want to make sure that
workers everywhere have a chance to participate in a renewed
American manufacturing climate.
Thank you, Mr. Chairman.
Chairman Issa. I thank the gentleman.
Pursuant to our rules, we will next go to Mr. Braley, as a
member of the committee.
Mr. Braley. Thank you, Mr. Chairman.
I would like you all to look at the seal behind the
chairman because it has what the people of the County of
Charleston felt were important principles to promote when they
formed this government. And you will see up there ``pro bono
public''--``for the public good.''
And unfortunately, this hearing misses the point that the
purpose of a National Labor Relations Board investigation is to
determine what is in the public good when the NLRB exercises
its constitutional responsibility to investigate whether labor
laws have been violated, in this case by Boeing, and, if so,
what a proper remedy for those violations should be.
And if you remember only one thing, you need to think about
not just what due process means to the parties to this
complaint, but what it means to you and your families and your
friends and your neighbors. Because this goes much deeper than
an NLRB hearing, and the problem with this hearing is it
involves an unprecedented improper interference by Congress
with a pending adjudicative proceeding as defined by the
Federal statute and based on years of precedent.
So what we should be talking about is not what the person
who is in charge of prosecuting that case is doing, but
whether, in fact, Boeing broke the law and what should be an
appropriate remedy.
One of the things that you learn in your first days of
class in administrative law is that administrative agencies act
in one of two ways. One is by rulemaking, where there is an
opportunity for expansive public input and congressional input,
and all of us engage in that on a constant basis.
But the other type of action by agencies is called
adjudication, and it is just like a judicial proceeding. And
just as you aren't supposed to tamper with juries who are
deciding the facts in a case in a court, you aren't supposed to
tamper with witnesses who appear in front of that court, even
though they aren't involved in the process of deciding the
outcome of that case.
So what we should be talking about is things that are the
basis of our Constitution and how this country was founded. Let
me read this to you.
``He has obstructed the administration of justice by
refusing his assent to laws for establishing judicial powers.
He has made judges dependent on his will alone for the tenure
of their offices and the amount and payment of their
salaries.''
That is in our Declaration of Independence because our
Founding Fathers didn't want people interfering with judicial
processes, which is what was happening in England. And that is
why, when we are talking and the chairman mentions the threat
to reindustrialization of the American work force, folks, we
are involved in the race to the bottom right now.
We had 397,000 factories in this country at the beginning
of the last decade. We only have 343,000 now. That is a closure
of 54,000 factories, a loss of 5 million jobs. That means every
day 15 factories are shutting down. That is what we should be
talking about today.
Chairman Issa. I thank the gentleman.
We now go to another favored son here, Mr. Joe Wilson.
Mr. Joe Wilson. Thank you, Mr. Chairman. And thank you for
holding this North Charleston hearing.
Indeed, this is unprecedented. What we are talking about is
an unprecedented expansion of big Government determining where
companies can locate their operations and employ citizens. But
more importantly, right here, what we have is an assault on
Boeing which kills jobs in South Carolina.
And this is an issue very important, obviously, to the
families of South Carolina, but it is important to all the
people of the United States. I am really grateful to be here in
that this is my birthplace--Charleston, America's historic
city. I am very grateful that the people who will be working
with Boeing are going to be working in a world-class community.
That is why they have come here.
And to be here with Congressman Tim Scott, who is the
resident Member of Congress. We have our workhorse former
Member of Congress, Henry Brown. Speaker of the House Bobby
Harrell is here. The leadership of this community has just been
so proactive, creating jobs.
Charleston is such a fitting location for this hearing, Mr.
Chairman, in that this is the home of Governor Jim Edwards. It
was his leadership that recruited Michelin to South Carolina.
We now have the North American headquarters in Greenville here
in South Carolina. We have seven plants across South Carolina.
In fact, in the district I represent in Lexington, over $1
billion has been invested since 1979, creating thousands of
jobs. So we have a record of recruiting industry.
And of course, to be here at the Port of Charleston, this
is a tribute to former Governor Carroll Campbell. He recruited
BMW. And right here from Charleston, over 1 million BMWs have
been exported around the world. And so, it is a real tribute.
The reason that people and companies locate in South
Carolina is that we have a capable, productive work force. We
have a world-class technical college system. We have a
welcoming climate. It is a meteorological climate that is mild.
You can do business year round, and the people are warm.
We are a right-to-work State that protects the rights of
workers. And we have pro-business leadership in government with
Speaker Harrell, with the senate president Glen McConnell,
Democrats, Republicans working together, supportive of this
expansion of Boeing to South Carolina.
We welcome this, and I look forward to the testimony today.
But the people of South Carolina are so supportive of creating
jobs and creating opportunity for the families of South
Carolina.
Thank you.
Chairman Issa. Mr. Scott, we now ask you to top all of
those openings. [Laughter.]
Since this is your town. You are recognized.
Mr. Scott. Thank you, sir.
I would like to start off by simply saying thank God for
South Carolina, the home of common sense and the permanent home
of the Boeing Corp., number one.
Number two, it is obvious that the campaign season has
begun. There is no question that we are in the process of
seeing the beginning of a Presidential reelection campaign, as
we find ways to fill the coffers in an attempt to use union
workers and their dues as a way to create a winning combination
for a Presidential campaign.
Number three, on the issue of politics of intimidation,
think of this, if you will. America's greatest exporter being
brought to task not for the elimination of a single union job
in Washington State, but for the addition, the increase, the
creation of jobs, 1,000 jobs in South Carolina.
Think of this for just a minute. The definition of
intimidation is having the NLRB require the Boeing Corp. to
spend hundreds of thousands, if not millions, of dollars
defending a baseless lawsuit, a baseless complaint.
Imagine, if you will, the workers in Washington State as
they see 2,000 new employees since the announcement of the
North Charleston plant, 2,000 new employees show up for work.
That does not sound like retaliation.
Think, if you will, that here in Charleston, North
Charleston, we have had a $1 billion investment by the Boeing
Corp., and now--and now we find ourselves having a complaint to
be issued to solve a problem that simply does not exist.
Why are we here today? How did we get here? In America's
fragile recovery, during the midst of one of the most amazing
recessions, at the verge of a double dip in the recession, we
find ourselves telling the Boeing Corp. that they ought to
figure out how to take these jobs to another country. Because
make no mistake that the beginning of an interstate war,
interstate war between Washington and South Carolina, between
right-to-work States and union presence States, we find
ourselves having a really important conversation.
And the conversation is not about right-to-work versus not
the right-to-work. It is not about Washington State or South
Carolina, as it has been teed up. It is truly about whether or
not we want American corporations doing business in America,
or--or do we want to send more jobs to China?
Do we, in fact, want the laws of our country to dictate the
success of America's greatest corporations, or do we want other
nations to decide and to determine the work force of America?
This entire process is baseless. We find ourselves in the midst
of a hearing that should not be. I do agree with that.
Because if there was something warranted in this process,
we should have addressed it. But simply said, this is a
baseless complaint. We find ourselves in the midst of the
campaign season. Using your tax dollars, using your tax dollars
in an unprecedented way, to tell private companies where and
how to create jobs.
It is interesting that the seven planes that they are
producing in Washington State, none of those jobs are moving.
Those seven planes will be coming out. They have decided that
they want an additional three planes a month. They looked far
and wide, and they decided that the greatest work force in all
of America here in North Charleston would be the place to have
it.
Thank you.
Chairman Issa. I thank the gentleman. Albeit a little long,
you did top everyone else. [Laughter.]
I would now ask unanimous consent that the statements of
Meredith Going Sr. and Dennis Murray II of the South
Carolinian-based Boeing employees, who sought to intervene in
this case involving Boeing Co., the International Association
of Machinists, and the NLRB, be entered into the record.
Without objection, so ordered.
[The information referred to follows:]

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Chairman Issa. I will now introduce our panel of witnesses.
Oh, additionally, I would ask unanimous consent that all
Members, both present and those who may join us, would have 7
business days in order to put additional statements and
extraneous material into the record.
Without objection, so ordered.
We now recognize our first panel of witnesses.
Mrs. Maloney. Mr. Chairman.
Chairman Issa. Would you let me get them through before any
points of order? I won't start without it.
Mrs. Maloney. Thank you.
Chairman Issa. Mr. Philip Miscimarra is a partner at
Morgan, Lewis & Bockius?
Mr. Miscimarra. Bockius.
Chairman Issa. Bockius LLP. And you specialize in labor and
employment practices in Chicago, Illinois.
Mr. Neil Whitman is president of Dunhill Staffing Systems
in Charleston, SC, specializing in staffing.
Mr. Julius G. Getman is the regent chair at the University
of Texas at Austin School of Law.
Ms. Cynthia Ramaker is an employee of the Boeing Co. in
North Charleston but is testifying today as an individual and
not on behalf of the company.
And Mr. Lafe Solomon is the acting general counsel of the
National Labor Relations Board.
And I didn't miss anyone. So before we have anything else,
pursuant to the rules, I would ask all witnesses to rise to
take the oath.
Raise your right hands.
[Witnesses sworn.]
Chairman Issa. Let the record reflect that all answered in
the affirmative. Please have a seat.
Does the gentlelady have a point of order?
Mrs. Maloney. Yes, Mr. Chairman.
Chairman Issa. Please state your point of order.
Mrs. Maloney. I do have a parliamentary inquiry.
Chairman Issa. Please state your inquiry.
Mrs. Maloney. And I would like to articulate a concern that
I expressed in my opening statement as to Ms. Norton and Mr.
Kucinich about the potential damage this hearing could have on
the National Labor Relations Board action against Boeing, which
is currently being heard by a judge as we sit here today.
My concern echoed a letter that the ranking member of the
Oversight Committee, Mr. Cummings, and the ranking member of
the Committee on Education and the Workforce, Mr. Miller, sent
you yesterday. And I would like unanimous consent to place it
in the record.
Chairman Issa. It will be placed in the record. I have a
copy.
[The information referred to follows:]

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Chairman Issa. I thank you for your inquiry.
Mrs. Maloney. And I am hoping that you can inform us how
you intend to proceed with the hearing today. Specifically, do
you intend to protect the NLRB legal proceedings from political
interference today by directing committee members to limit all
questions to Mr. Solomon to general questions about the NLRB
and its processes and not ask questions directly related to the
NLRB proceedings?
Chairman Issa. I will try to answer the gentlelady's
questions, the ranking members' questions, the letters, coming
both from the White House and multiple committees, and I will
do it in the following fashion.
Mr. Solomon, I would like to ask you a few questions
related specifically to your role here today to make clear what
is in and not in bounds. Hopefully, we can do that on the
record.
First of all, is it correct that you are here not pursuant
to a subpoena but, in fact, voluntarily. After the subpoena was
issued, there was an acquiescence of your being here. Is that
roughly the truth?
Mr. Solomon. Sir, the subpoena was not issued.
Chairman Issa. Oh, it was issued. It was signed. But our
understanding is when the staff informed that a subpoena would
compel, that there was an agreement outside of subpoena for
your appearance voluntarily?
Mr. Solomon. I didn't know there was a signed subpoena. I--
I----
Chairman Issa. So, therefore, you are here voluntarily?
Mr. Solomon. I am here voluntarily.
Chairman Issa. Okay. That is even better. So you are here
voluntarily. Do you feel intimidated by us asking you questions
related to decisions you have already made?
Mr. Solomon. I am here reluctantly. Not because I have
anything to hide, but because I have a lot to protect. I need
to protect the independence of the Office of General Counsel. I
need to protect the due process rights of the litigants, and I
need to ensure that there is a fair trial.
Chairman Issa. Now you are not the administrative law
judge?
Mr. Solomon. Correct.
Chairman Issa. And you have already made your mind up in
this case or you wouldn't have brought the case. Is that
correct?
Mr. Solomon. I certainly issued the complaint. However, I
am still actively involved in making strategic decisions about
the litigation as it continues.
Chairman Issa. It is our intent not to ask you as to your
strategy of pursuit in this case against Boeing in which it is
our belief--correct me if I am outright wrong--you have already
made your decision they are guilty, or you wouldn't have
brought this. Your strategy may change, but you made, you alone
were the one person that made the decision to put this before
an administrative law judge. And therefore, you had made a
decision. Is that correct?
This isn't a fact-finding, go fishing. You have made a
decision, and you are prosecuting a case?
Mr. Solomon. I made a decision that there was reasonable
cause to believe that the National Labor Relations Act had been
violated.
Chairman Issa. Yes, if you could--I apologize. Perhaps
because of the nature of these mikes, I think they are picking
up okay, but if you would speak up just a little whenever
possible.
Mr. Solomon. Certainly, sir.
I believed, after a thorough investigation, that there was
reasonable cause to believe that the National Labor Relations
Act had been violated. I authorized the issuance of a
complaint. But you know, as I said, I am actively involved in
going forward and determining the strategy of our litigation.
Chairman Issa. Okay. And you are aware of precedent in
which Congress has independently made decisions about all
activities of the executive branch, whether direct or through a
quasi-independent agency. Is that correct?
Mr. Solomon. Yes, sir. I am unaware of any time a general
counsel of the National Labor Relations Board has been called
before Congress in a pending litigation.
Chairman Issa. You are aware that the Congress has, from
time to time, convened, offered laws restraining even the
Federal court and certainly the executive branch from certain
actions which they disagreed with. Is that correct?
Mr. Solomon. I am no legal scholar in this regard----
Chairman Issa. Fortunately, we have one here. I am sure he
will pipe in at the appropriate time.
Okay. Then I will issue guidance pursuant to the
gentlelady's request. We believe--the chair believes and will
rule that questions related to that which you have already
decided, but not related to the strategy you will pursue in the
pending case are inbounds.
Facts which are entitled to be received by the defendant
and others will be considered reasonable to ask for. Any item
which is not discoverable by the defendant will be considered
out of bounds for any question.
The clock will stop if at any time individuals on either
side ask a question in which you wish to seek or believe you
need to seek your counsel. Unless your counsel is sworn, he
won't be able to answer for you, but he will be available to
you, and you will have whatever time you want or whatever time
you need.
Additionally, it is not our intent to interfere with the
process ongoing. Congress has an independent right to make a
decision to change the outcome.
We could eliminate the NLRB. We could choose to take your
premise and statutorily change it. That is part of the
consideration that Congress has to make, and we have to make it
in real time. This is not something we can wait until 3 years
from now. Plus, we have amicus possibilities at any appropriate
time.
We will limit our questions to that decision which you have
made and that which would be otherwise discoverable and nothing
beyond that. Is that understood, and do you agree?
Mr. Solomon. Yes. I think we might need to play it out a
bit before I understand it.
Chairman Issa. They give me a gavel so that I can make
additional statements and rulings as appropriate.
Is the gentlelady satisfied that at least to begin----
Mrs. Maloney. I would like to thank the chairman. Congress
historically has treaded very carefully before choosing to
interfere in the legitimate law enforcement activities, and the
timing of this hearing is unfortunate in that the proceedings
have started. And I am confident that the committee's oversight
responsibility can be fulfilled today without compromising the
integrity of the NLRB's proceedings or the due process rights
of private parties.
So thank you for clarifying that, and let's go forward.
Chairman Issa. I think we have gotten to the starting
point. And again, we will pause the clock if you need to
consult on any question, and I will consider changes as
necessary.
With that, I am wrung out from asking questions. So before
I take my round--I already did that. I did that. I am going to
say that. Okay. We will now begin, and we will go right down
the row with opening statements.
Unlike us, where we hopefully suspended a little bit of
what otherwise would have been the long opening statements, you
will have up to a full 5 minutes. When you see, if you can see
the lights go from green to yellow to red, please try to wrap
it up.
Understand your entire opening statement, no matter how
long, will be included in the record of this hearing, in
addition to extraneous material or additional comments you may
choose to add later.
With that, Ms. Ramaker.
Ms. Ramaker. Oh, wow.
Chairman Issa. If you would like to pass, we will come back
to you.
Ms. Ramaker. No, I'm fine.
Chairman Issa. Thank you very much for being here. I
realize that you are not accustomed to this kind of procedure,
and we didn't help with our opening start. But please
understand we know you are here as an individual and just be
comfortable and say what you feel from your heart.

STATEMENTS OF CYNTHIA RAMAKER, EMPLOYEE, THE BOEING CO.; NEIL
WHITMAN, PRESIDENT, DUNHILL STAFFING SYSTEMS; LAFE SOLOMON,
ACTING GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD; PHILIP
MISCIMARRA, LABOR ATTORNEY, MORGAN, LEWIS & BOCKIUS LLP; AND
JULIUS GETMAN, PROFESSOR, EARL E. SHEFFIELD REGENTS CHAIR,
UNIVERSITY OF TEXAS SCHOOL OF LAW

STATEMENT OF CYNTHIA RAMAKER

Ms. Ramaker. Okay, if you hear this noise, it's my knees
knocking. So I'm sorry.
Chairman Issa. Could you pull the microphone a little
closer?
Ms. Ramaker. All right. My name is Cynthia Ramaker. I'm an
employee--my name is Cynthia Ramaker. I'm an employee of Boeing
based in North Charleston, SC.
I am one of the employees who is attempting to intervene in
the case involving the Boeing Co., the International
Association of Machinists, and the NLRB regarding Boeing's
South Carolina operation.
In April 2006, I was in the first group to be hired by
Vought Aircraft, the manufacturer with the Charleston facility
that assemble the two aft sections of large Boeing aircraft.
When I went to work for Vought in 2006, the IAM had not made
contact with employees.
In 2007, IAM organizers began soliciting Vought employees
with a door-to-door campaign. The union was eventually voted in
in the spring of 2008, and after the union got in, it began
contract negotiations with Vought. The IAM did not inform
employees the importance of issues that were negotiated--being
negotiated with Vought.
At some point, the IAM must have known the contract it was
negotiating was likely to be rejected because the meeting in
November 2008, at which the contract was to be ratified, was
billed as a normal union meeting with no mention of a
ratification vote. I recall the IAM assuring employees that any
bad things in the contract would later be improved.
Of all the union members in the unit, only 13 attended the
contract meeting--ratification meeting. Those few in attendance
ratified the IAM's contract by a vote of 12 to 1. All of the
provisions of the new IAM contract were worse than what we had
as Vought employees. We lost medical, dental, short-term
disability.
The Vought employees' dissatisfaction with the IAM's action
surrounding the contract only increased when the workers were
laid off in the following weeks. After the contract
ratification, employees attempted to contact IAM officials,
leadership. The IAM grand lodge representatives held one
meeting, and then we had no contact from them for 4 months
during the layoff. Nobody was even able to make contact with
them.
Around this time, I was voted as the local president and
continued in that position until September 2009, when the union
was decertified. There was nothing I could do with respect to
influencing the union leadership or reassuring the employees
about our future under the new contract with the union.
I was not surprised by the unfair labor practice filed by
the IAM in Seattle or Everett against Boeing. To me, they are
violating my right to work with a choice. Isn't that what--my
hands are shaking. Isn't that what being an American is all
about, a choice? That's my right.
They made it perfectly clear to us that they did not want
the 787 built here in South Carolina. After Boeing bought the
facility, I was aware of a petition being organized to
decertify the union, and I had no role in that signature
gathering for the decertification petition. The decertification
election was held in September 2009, and the IAM was voted out
by a tally of 199 to 69.
Recently, the IAM has begun contacting employees again at
their home, trying to get them to join. This campaign was very
poor in comparison to the one several years ago.
The Boeing campus in North Charleston is divided into three
different production buildings. Building 8819 is currently
staffed by 1,200 employees. Building 8820 is currently staffed
with about the same. When it is fully staffed, the FAD
building--F, A, and D--will employ some 3,800 employees.
Thousands of people will be unemployed if the NLRB
complaint is successful. Losing my job will be catastrophic to
myself and the workers at the North Charleston Boeing facility.
We are homeowners. We have families that will be affected.
And I understand that the NLRB general counsel's remedy in
this case will force Boeing to discontinue the final assembly
and delivery work in Charleston and transfer it to Seattle, and
this would devastate--totally devastate our families and the
community. It is absolute certainty that many Charleston-based
employees, including me, will lose our jobs with Boeing in
South Carolina if the general counsel's proposed remedy is
adopted.
Boeing is one of the best employers in the area, and I
would like to continue working for them. But if the 787 program
is moved to Washington, I will not accept a relocation offer. I
have chosen to exercise my rights as a citizen of the United
States to live and work in South Carolina.
Our personal experience with IAM has been very bad.
Although I have nothing against unions in principle, I strongly
believe that membership in a union and representation by a
union should not be compulsory.
We had a union in our plant. The majority of the employees
did not want to be represented by that union. So it got voted
out. Now it seems we are being punished for that choice.
I strongly believe that employers should not be told by the
Federal Government or a union where they can establish their
operations, and if Boeing thinks it can get the job done more
profitably and successfully in South Carolina, then that's
Boeing's decision to make.
And I declare under penalty of perjury that the foregoing
is true and correct.
[The prepared statement of Ms. Ramaker follows:]

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Chairman Issa. Thank you. Thank you very much.
Ms. Ramaker. You're welcome.
Chairman Issa. Mr. Whitman.

STATEMENT OF NEIL WHITMAN

Mr. Whitman. Thank you.
Mr. Chairman, members of the committee, distinguished
visitors, I want to thank you for allowing me the opportunity
to discuss the various positive impact that Boeing has had both
on my small business and the Charleston community.
My name is Neil Whitman. My wife, Melinda; my daughter,
Katie; and I own and operate Dunhill Staffing Systems based
here in Charleston.
In 2000, Melinda and I relocated to the Charleston
community with the idea of starting our own business. Like many
Americans, we dreamed of owning a business. On August 15, 2001,
we launched Dunhill Staffing Systems of Charleston.
We are a provider of fee-paid recruiting for technical and
sales professionals throughout the Southeast, with a special
emphasis on our local market. Some would call us headhunters.
We prefer to be called executive search consultants.
Our plans for a grand opening on September 17th changed
abruptly when our Nation was attacked on September the 11th.
Despite the shock this had on our Nation's economy, my business
persevered and was profitable in its first year of operation.
As our business grew, I hired more consultants, eventually
employing seven full-time staff members. They were well paid
and received benefits. We became involved in our local
community, including our Chamber of Commerce; SCAPS, our State
personnel association; the local school district; our churches;
and donated time and money to numerous nonprofits throughout
the Charleston area.
My business plan called for the launching of an hourly
staffing division, which we did in 2005. Good fortune smiled on
us again, and this sector was profitable in 1 year.
The announcement made in 2004 that Vought Aircraft and
Global Aeronautica were coming to Charleston was, indeed, good
news. Aircraft manufacturing represented an important new
business sector for our region.
Soon after this announcement, my company was contacted
about providing services to these companies. Our business
volume grew, particularly with Global Aeronautica. And it grew
at a steady pace, and they eventually became our largest
customer.
My decision to launch our hourly division as a hedge
against an economic downturn was validated when our search
business took a dramatic downturn in the fall of 2008. The
ripple effect of the housing market meltdown, the fall of
Lehman Brothers, and the stock market plunge combined to
virtually kill our most profitable sector.
I don't mind telling you I was scared that our business
wouldn't make it. Thankfully, companies supporting Boeing's 787
program here in Charleston continued to grow, and this
sustained our business through 2009. We placed dozens of
individuals with Global Aeronautica in good-paying jobs that
offered benefits and the opportunity for many of our
contractors to become full-time staff.
Many of the people we placed were unemployed at the time
with dim prospects for the future. I know they were all glad to
have good-paying jobs in a tough economic time.
The announcement on October 28, 2009, that Boeing had
picked Charleston for their new assembly plant was the best
economic news in a long while. I knew immediately this was a
game-changer for our area and offered great potential for my
small business.
I learned that Boeing was committed to utilizing local
resources and that it gave generously to the communities where
they were located. All of this proved to be true.
After numerous meetings and intense negotiation, my company
was added to Boeing's list of national contract labor
suppliers, and now we get to compete for their business every
single day. To handle this additional volume of work, I've
added a full-time account manager who focuses exclusively on
their needs.
The jobs we fill all pay well above the local average and
provide an entry point for people to join Boeing as regular
full-time employees. My business has grown. We've added over
100 employees, and I've seen my revenue grow by 295 percent.
And this is counter to the current job market, which, as recent
news indicates, continues to be very difficult.
Once again, if not for Boeing business, my small business
would be very different. Mine is not the only small business
that's felt the positive impact of Boeing's presence in
Charleston. Recently, I had a conversation with an engineer
from a local engineering company who told me that without
Boeing they'd be out of business. I have no doubt there are
many such stories to be told here in Charleston.
If Boeing is forced to shut down their Charleston
operations, it would mean the loss of thousands of direct and
indirect jobs in an economy that is just barely recovering from
the recession. Again, I don't know if we'd survive.
Boeing has proven, as promised, to be a good corporate
citizen. Boeing executives and employees are buying houses,
attending our churches, participating in our Chambers of
Commerce, and are actively involved in several nonprofits in
our area. They've given over $1 million to local charities and
I believe will only continue to make Charleston a better
community for all of us to live, learn, work, and play. Losing
Boeing as a result of this lawsuit would cost thousands of jobs
and set our community back for years.
When I first heard of this lawsuit, I was more than a
little concerned. Many of my friends and business colleagues
wondered why and how our Government would consider such an
action, which appears to be an assault on our free enterprise
system.
Each and every day, businesses large and small must make
decisions about where to invest their limited resources. That's
what I did 11 years ago when I decided to start my own small
business in Charleston. I did so after my research showed
Charleston to be a good market, and that decision proved to be
a good one.
Boeing did the same thing and decided to invest several
hundred million, now a billion, in our community. I believe
they did so after carefully considering a multitude of factors,
including the positive labor climate in our State.
This lawsuit by an agency of our Federal Government is, in
my opinion, against all that makes our economic system special.
It will have negative consequences for future generations of
entrepreneurs and business leaders who must be able to locate
their businesses without the threat of Government intervention.
The freedom to make these kind of decisions must be preserved.
Thank you.
[The prepared statement of Mr. Whitman follows:]

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Chairman Issa. Thank you very much.
Mr. Solomon.

STATEMENT OF LAFE SOLOMON

Mr. Solomon. Mr. Chairman and distinguished members of the
committee, I appear before you today as the acting general
counsel of the National Labor Relations Board, having been
appointed to this position by President Obama on June 21, 2010.
I would like to start by acknowledging that workers in
North Charleston are feeling vulnerable and anxious because
they are uncertain as to what impact any final decision may
have on their employment with Boeing. These are difficult
economic times, and I truly regret the anxiety this case has
caused them and their families.
The issuance of the complaint was not intended to harm the
workers of South Carolina, but rather to protect the rights of
workers, regardless of where they are employed, to engage in
activities protected by the National Labor Relations Act
without fearing discrimination.
Boeing has every right to manufacture planes in South
Carolina or anywhere else, for that matter, as long as those
decisions are based on legitimate business considerations. This
complaint was issued only after the parties failed to
informally resolve this dispute.
I personally met with the parties, and I tried for 3 months
to facilitate a settlement of this case. I remain open to
playing a constructive role in assisting the parties to settle
this dispute without the costs and uncertainties associated
with extended litigation.
I believe that, given the parties' longstanding bargaining
relationship, a settlement would serve the interests of the
parties and the workers and would promote industrial peace. In
the absence of a mutually acceptable settlement, however, both
Boeing and the machinists union have a legal right to present
their evidence and arguments in a trial and to have those
issues decided by the board and Federal courts.
All charges filed with our regional offices are carefully
and impartially investigated to determine whether there is
reasonable cause to believe that under the board's precedents
an unfair labor practice has been committed. Fairness to the
parties and sound development of the law weighs in favor of
presenting these types of cases to the board for decision,
subject to review by the courts.
I would not be fulfilling my responsibilities if I turned a
blind eye to evidence that an unfair labor practice may have
occurred. I took an oath to enforce the National Labor
Relations Act and to protect workers from unlawful conduct.
The general counsel's concern with fairness to the parties
does not end with the issuance of the complaint. Throughout the
proceeding, the general counsel remains master of the complaint
and is responsible to ensure that the prosecution of a case is
justified by the facts and law.
As such, it remains open to the general counsel to make
concessions on issues of fact or law and to pursue settlement
discussions with the charged party, even over the objections of
the charging party.
For all these reasons, the actual fairness of the
proceedings before the board and, equally important, the
perception that the board's administrative processes are fair
vitally depends on the public and the parties retaining the
confidence that the general counsel is carrying out his
prosecutorial responsibilities on the basis of fact and law in
the case and is not making decisions on the basis of political
or other matters not properly before the board.
As you know, the Boeing hearing began on Tuesday of this
week before an administrative law judge in Seattle, Washington.
I am actively involved in overseeing the Boeing litigation and
in strategic decisions necessary for the prosecution of this
case.
My obligation to protect the independence of the Office of
the General Counsel and the integrity of the enforcement
process restricts my ability to offer insight into the
decisionmaking here. I hope you will share my commitment that
these proceedings not be construed as an effort by the Congress
to exert pressure or attempt to influence my prosecutorial
decisions in this case, which have been and will continue to be
made based on the law and the merits and in a manner which
protects the due process rights of the litigants.
I come here voluntarily out of respect for the oversight
role of Congress. I will do my best to answer your questions,
consistent with my obligations to the parties and to the
American public with respect to the ongoing Boeing case.
The adjudicatory process must be fair and impartial so that
the parties' due process rights, which are guaranteed by the
Constitution, are preserved. Our American legal system of
justice is guided by these fundamental principles.
Thank you.
[The prepared statement of Mr. Solomon follows:]

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Chairman Issa. Thank you.
Mr. Miscimarra. Was that closer?

STATEMENT OF PHILIP MISCIMARRA

Mr. Miscimarra. Much closer, Mr. Chairman.
Chairman Issa, Representative Maloney, and committee
members, thank you for the invitation to appear today.
I'll start with a pair of opening disclaimers. My view of
the law differs from what is reflected in the complaint that's
been issued by the acting general counsel against Boeing.
Disclaimer number two, this is not the first time different
views have been expressed about major business changes.
Three factors, in my view, help explain why the litigation
against Boeing has resulted in such controversy. The first
factor involves NLRA process. When dealing with major business
decisions, the board litigation resembles a tortoise that can't
win any race because the economy now moves at speeds not
imaginable when the statute was passed.
It's true the general counsel only decides whether to issue
a complaint, and the Boeing complaint does not constitute a
finding of unlawful conduct. But the Boeing complaint places a
$750 million investment decision on a very long litigation
treadmill. And especially when the litigation seeks to have
such a major investment redone somewhere else, which might be
ordered 5 or 10 years down the line, the complaint's issuance
has immediate adverse consequences.
The board's general counsel acts like a traffic cop. He can
issue a citation, but he doesn't write the laws, and he doesn't
decide the cases. But traffic citations don't routinely involve
impounding the car for 5 to 10 years, and that's the practical
effect when an NLRB complaint challenges major investment
decisions.
The second factor I'll discuss briefly involves the
substance of existing law. The NLRA prohibits a relocation
motivated by anti-union hostility, but the cases in this area
require some tangible transfer and removal of preexisting work.
Boeing's assembly plant in South Carolina is new investment
that has not involved any tangible relocation from somewhere
else.
Now, one focus in the complaint against Boeing are
statements to the effect that South Carolina investment
decision, that decision was influenced by past work stoppages
at Boeing's unionized facilities in Washington State. Now,
those unionized operations had five strikes since 1975. It
included a 58-day strike in 2008, which shut down the
Dreamliner production when the program was already 15 months
behind schedule. And that strike reportedly cost Boeing $1.8
billion in lost revenues.
Now, companies are permitted to make decisions based on
economic costs that exist because of collective bargaining or
strikes. So it's not surprising that a company like Boeing,
when making a major investment decision, would want to maximize
return and minimize downtime. The act prohibits discriminatory
relocations, but it doesn't require that employers make
irrational decisions about new investment.
The third factor I'll mention is the outcome or remedy
being sought in the Boeing litigation. Even if some remarks
were found to be objectionable--and such a finding has not been
made in the case--that would not justify, in my view, the
remedial order requested in the complaint.
Now I greatly respect the members of the NLRB. I respect
the acting general counsel and others that are employed in the
agency. But it would benefit everyone if there is some
adjustment in the factors that I've mentioned, which could
accomplish a resolution of the Boeing dispute.
Now I'll close today by mentioning a relocation that was
announced on June 10th. I'm not talking about June 10th a week
ago. This other relocation was announced on June 10th 30 years
ago, June 10, 1981, and it took 13 years before that litigation
ended.
That litigation was called Dubuque Packing Co., and here's
what the Court of Appeals said when it reviewed that dispute.
``This case presents hard questions. Indeed, some of the most
polarizing questions in contemporary labor law. While we are
sympathetic to the task that lies ahead for the National Labor
Relations Board, our sympathy does not lead us to shirk our
duty to hold the board accountable for the rationality of its
decisions.''
That concludes my prepared testimony. Again, thank you.
I'll be happy to answer any questions.
[The prepared statement of Mr. Miscimarra follows:]

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Chairman Issa. Thank you.
Professor.

STATEMENT OF JULIUS GETMAN

Mr. Getman. Thank you.
And like all of those who preceded me, I thank the
committee for the opportunity to speak to it.
Chairman Issa. Thank you. And it is a large lecture hall.
So the louder you speak, the better.
Mr. Getman. Thank you. I will take advantage of that.
When I agreed to speak to this committee, I started reading
up on the Boeing case more than I had previously. And in my
reading, I was struck by the fact that there was an enormous
amount of statements made about the case, many of it by
political figures and many of it by political commentators and
some by law professors, many of whom I knew.
Now what was striking to me was the difference in tone
between the comments of the political figures and the political
commentators and those of the law professors. The political
commentators saw in this case something unparalleled,
dangerous, very powerful, threatening essentially the
capitalist system and the ability of employers to transfer work
from one facility to another. And they kept attributing this to
the NLRB.
The law professors saw this as a fairly routine Section
8(a)(3) charge by the labor board, and I want to identify
myself with my fellow law professors. This is not in any way an
earth-shaking case. This is a traditional case being decided,
and which should be decided in accordance with principles of
law that are over 50 years old.
It is well settled, and my colleague to my right does not
disagree, that a company may not transfer work for retaliatory
reasons. Of that, there is a statement to that effect by
Judge--which I quote in my testimony--by Judge, later Chief
Justice Burger. This is in 1967.
``While it is now clear that an employer may terminate his
business for any reason, it is equally well settled that he may
not transfer its situs to deprive his employees of rights
protected by Section 7.''
Now the general counsel alleges that Boeing has taken the
steps that it has taken in transferring work from Washington to
South Carolina to retaliate against the workers for their
activity, for their union activity in Washington. Now Section
8(a)(3) of the act, its general purpose has been stated by
Justice Frankfurter is ``to insulate the rights of workers to
engage in union activities from their job rights.''
Which means that you may not retaliate against workers or
in any way punish them for engaging in union activity. The
general counsel alleges that that is precisely what Boeing has
done.
I have read his complaint, and it is filled with quotes
from Boeing officials basically acknowledging that that's what
they've done. To me, the most unusual thing about this matter
is that Boeing has--that officials of Boeing have confessed on
numerous occasions to having violated the law. And the general
counsel has cited this.
It is also the case that the remedy that he seeks is not at
all draconian. In fact, he's gone out of his way to state
that--and I'm quoting from the complaint--``The acting general
counsel does not seek to prohibit respondent from making
nondiscriminatory decisions with respect to where work will be
performed, including nondiscriminatory decisions with respect
to work at its North Charleston, South Carolina, facility.''
So that while the matter proceeds, there is no doubt that
Boeing continues to have the right to transfer work to South
Carolina. And so long as it's doing so on a legitimate business
and not a retaliatory basis. And it is for that reason that the
case seems to us, to most of us law professors--myself,
Professor Brudney and others--it seems to us a traditional
Section 8(a)(3) case.
Now there is another--and so, we wonder why, in light of
the fact that the board is doing nothing unusual or the general
counsel is doing nothing unusual, why is it that there needs to
be a hearing by the Oversight Committee? There is an additional
reason for our concern, and that is process, which has been
referred to by several of the committee members.
As I point out in my testimony, the NLRB has not decided
this case. The general counsel, who is essentially a
prosecutor, has discovered enough evidence to proceed. He seems
in the----
Chairman Issa. We will get to that, if you can wrap up,
please?
Mr. Getman. Well, all right. I just want to make this
point, which I think is important. That there are--if Boeing is
correct and if the general is correct, there are a whole bunch
of legal processes, and these are the processes that are
established by law to correct it.
We have all of the hearings still pending before the
administrative law judge, the labor board itself, and finally,
in the courts. And it's important to note that Boeing has to
take no action until it's ordered to do so by the court.
[The prepared statement of Mr. Getman follows:]

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Chairman Issa. I thank the gentleman.
I will now recognize myself for the first round of
questioning.
Mr. Getman, Professor, since you were so eloquent in your
explanation, I have a question for you that maybe is just
because I wasn't a student ever in your class. Is there a right
under the National Labor Relations Act to guarantee that you
have new employees junior to you?
Okay. Mr. Solomon, are you discriminated against if you
don't become more senior, if there are not new employees
underneath you in seniority? Is that a discrimination? In other
words, not hiring new people, is that a discrimination against
the existing individuals that are working?
Mr. Solomon. I don't----
Chairman Issa. If no people lose their jobs, if 100 percent
of the people continue to get the same pay and benefits in
Everett, Washington, then are they discriminated by not having
additional fellow Seattle residents get jobs?
Mr. Solomon. That isn't the theory of our complaint, Mr.
Chairman.
Chairman Issa. I am not talking necessarily about your
complaint. There is no cause of action if there is no
discrimination. Correct?
You know, you can choose----
Mr. Solomon. But there's not a violation of the National
Labor Relations Act.
Chairman Issa. So the choice not to invest in a business-
unfriendly environment is, in fact, not protected by the
National Labor Relations Act. Is that correct? New investment,
new jobs, new decisions. Not protected by the National Labor
Relations Act. Correct? In your opinion.
Okay. Let me get to a couple of fairly simple points. You
are an acting. You were chosen by the President in 2010. You
serve at his pleasure. Is that correct?
Mr. Solomon. Correct.
Chairman Issa. And you will continue to serve at his
pleasure until or unless you are confirmed. After that, you
could only be removed for cause. Correct?
Mr. Solomon. Yes.
Chairman Issa. So, oddly enough, somebody who totally is
dependent upon the continued best wishes of President Obama is
who brought this case. Just an oddity that you have been so
long since 2010, and you haven't been confirmed?
Mr. Solomon. The--the White House had no involvement in my
decisionmaking process.
Chairman Issa. I didn't ask that, but thank you for
offering. [Laughter.]
And the NLRB itself has four Obama appointees and one
vacancy, and one of those appointees is a recess appointment,
meaning not confirmed. Is that correct?
Mr. Solomon. That is correct.
Chairman Issa. So the term ``independent,'' you are
currently no more independent than Janet Napolitano or any of
the other political appointees of the President?
Mr. Solomon. I would respectfully disagree with you over
that.
Chairman Issa. I mean, from a standpoint of you serve at
the pleasure of the President, right?
Mr. Solomon. Yes.
Chairman Issa. Okay. One of the questions I am trying to
understand, and I think I will go to Chicago for a moment,
Mr.--and I keep, I have a tough time with your name--
Miscimarra.
Mr. Miscimarra. Miscimarra, Mr. Chairman.
Chairman Issa. Miscimarra? Okay. Much better when I hear
it. Must be a South Carolinian thing. [Laughter.]
Voice. Very much a South Carolina name.
Chairman Issa. Your opinion is different. But let me just
ask, because Professor Getman was kind enough to say that this
was so ordinary and routine and common, is there anything
common about an expanding opportunity, new jobs, and some of
those new jobs--3,000 or so of them are going to Everett,
Washington, and 1,000 are coming here? Is there anything
unusual about the triggering--notwithstanding what is in the
hearts and minds of executives or even the conversations of
executives, is there anything unusual in a case being brought
claiming that it is retaliatory to be only giving three out of
four jobs to the people that you are supposedly retaliating
against?
Mr. Miscimarra. I mean, that's one of the things that's
unusual, Mr. Chairman, about this case, in my opinion. You
know, there are two things.
One is, it's very clear, at least in my reading of Section
8(a)(3) cases that deal with discriminatory relocations, that
they involve some sort of physical transfer of work and some
sort of removal, a tangible removal of work.
You know, I cited approximately 15 cases with quotes in
my--the written version of my testimony. And right down the
line, the cases all talk about taking work from point A, moving
it to point B. As I understand the facts involving the
respective facilities that are at South Carolina and Washington
State, employment is increasing in both places, and it's
unusual in that context, I think unprecedented, to have an
8(a)(3) complaint.
Chairman Issa. Thank you.
Ms. Ramaker, is there any doubt in your mind if you went
and held a vote and voted back in the International Machinists
and Aerospace Union and became its president, is there any
doubt in your mind that this wouldn't all go away, and you
would be just fine as long as you were a union shop?
Ms. Ramaker. No, and I'm glad you brought that up. Because
we've had a problem or issues with IAM out of Everett,
Washington, Puget Sound, the whole area, since we opened up
even as Vought.
When we were union, there was no support from their union
reps. We're union. We're not union. It didn't matter. It seemed
to be to us, as a worker, about the total control of this
program versus where it is. They wanted it there, period.
Chairman Issa. Okay. So just a quick follow-up. Your view
is that this has nothing to do even with your choice not to be
a union shop----
Ms. Ramaker. Correct.
Chairman Issa. That this is really about people in Everett,
Washington, wanting to have everything in Everett, Washington?
Ms. Ramaker. Correct.
Chairman Issa. Thank you.
I go to the gentlelady from New York for her round of
questioning.
Mrs. Maloney. I thank the chairman.
Since the chairman pointed out that Mr. Solomon was
appointed by President Obama, I wanted to also point out that
he began his career in the agency as a field examiner in
Seattle in 1973, and I understand you have worked for a number
of Presidents and a number of board members, both Republican
and Democratic.
Could you be described as a career professional, if you
would like to clarify?
Mr. Solomon. I am--I am a career professional.
Mrs. Maloney. How many Presidents have you worked for?
Mr. Solomon. I have worked specifically or directly with at
least 10 board members, some Republican, some Democrats, and
then, of course, I have worked indirectly with many, many more.
Mrs. Maloney. And served under how many Presidents during
that tenure with----
Mr. Solomon. That's hard for me to do the math. Since
however many we've had.
Mrs. Maloney. But you have served both Republican and
Democratic, and you are a professional?
Mr. Solomon. Yes, however many we've had since 1972.
Voice. Since Gerald Ford apparently.
Mrs. Maloney. Right. I wanted to go back to Professor
Getman and give him more time to eloquently describe the points
that he was making. And you pointed out that this transfer,
that any transfer for legitimate reasons for wanting to go to
historic Charleston, whatever the reason, was totally
legitimate.
But if you are transferring in retaliation because of the
constitutional right that is protected by law, the right to
protest, the right to bargain, that that is not acceptable. And
as my colleague Mr. Kucinich pointed out in his opening remarks
with his direct quotation, Boeing officials, even the top
Boeing official has made it very clear that this was an act of
retaliation.
And I would like you to clarify more what role does South
Carolina's status as a right-to-work State or as a beautiful
community or as a wonderful place to visit, what did that play
in the complaint issued by the NLRB? And explain the case more
that it was really because of the retaliation, which is a
protection for all Americans, protection for all workers in any
capacity.
So I wanted to give you more time to explain your position.
Mr. Getman. Well, thank you for the question.
First, I want to point out that the role of the general
counsel is limited. He or she is not supposed to take into
account the wonders of South Carolina or the beauty of
Washington State either. The role is limited to enforcing the
National Labor Relations Act and to enforcing Section 8(a)(3).
And I have been a student of that for close to 50 years.
And as I indicated and you properly stated it, the whole point
of Section 8(a)(3) is employers can make decisions on any basis
that they want. That's no business of the general counsel.
But if they're doing so to punish people because they went
on strike, that is a violation of the National Labor Relations
Act. Maybe that's not the reason they so acted. That will come
out during the process.
I must say the general counsel has cited, or the acting
general counsel has cited numerous statements which seem to
support the allegation. It does seem to me that if I were the
general counsel of the National Labor Relations Board, I would
feel compelled to do what he did and issue a complaint.
Mrs. Maloney. When you talk about strikes, I know a very
famous strike came, happened in New York in the district I
represent, the Triangle Shirtwaist Factory. After there was a
fire, all the doors were locked. Well over 200 women were
killed.
And there were strikes saying we should have safe working
conditions. And I remember reading about the strikes that said
we should not have child labor laws. And people criticized
people. ``They shouldn't be doing that.'' Now it is an accepted
value in our country.
So, Mr. Solomon, I would just like to ask you, as we are
struggling to recover from the great recession, the worst since
the Great Depression, do you believe that the enforcement of
the NLRA is good for the middle class and good for the values
that have helped to build this country? Your comments, please.
Mr. Solomon. Oh, certainly, Congresswoman.
The National Labor Relations Act was passed by Congress in
1935, having come out of a greater depression than we have just
had. But the Congress was--believed that protecting workers and
giving them a voice was good for the economy. And if I may, I
would like to read from Section 1 of the National Labor
Relations Act that was passed by Congress.
``It is declared to be the policy of the United States to
eliminate the causes of certain substantial obstructions to the
free flow of commerce and to mitigate and eliminate these
obstructions when they have occurred by encouraging the
practice and procedure of collective bargaining and by
protecting the exercise by workers of full freedom of
association, self organization, and designation of
representatives of their own choosing for the purpose of
negotiating the terms and conditions of their employment or
other mutual aid or protection.''
Chairman Issa. Thank you.
The gentleman, Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Solomon, I want you to assume that a customer told
Boeing that because of work stoppages they were going to find
another supplier for airplanes. Can Boeing consider that?
Mr. Solomon. I can only decide a case based on the
investigation and the facts of that case, and----
Mr. Gowdy. Mr. Solomon, I have a very limited amount of
time, and I am sure, prosecutor to prosecutor, you can
appreciate the fact that I am going to need a yes or no answer.
And then you can explain it, if you want to.
A customer told Boeing that because of work stoppages they
were going to find another supplier of airplanes. Can Boeing
consider that?
Mr. Solomon. A company can consider many things,
Congressman.
Mr. Gowdy. Can they consider the fact that they are going
to lose customers?
Mr. Solomon. I can only tell you what the theory of the
complaint is. The facts will come out at the hearing, and I----
Mr. Gowdy. Mr. Solomon, do you agree that it is a fact that
there was a work stoppage for 58 days that cost Boeing over $1
billion? Do you agree that that is a fact?
Mr. Solomon. Yes, I do. Yes.
Mr. Gowdy. Do you agree that Mr. Branson said these work
stoppages are unacceptable, and if they continue, we will find
another supplier of our airplanes? Do you dispute that that
statement was made?
Mr. Solomon. I--I just do not want to talk about evidence
that's going to be introduced into the record.
Mr. Gowdy. Mr. Solomon, it has been in the newspaper. There
is nothing confidential about that. Do you dispute that Mr.
Branson, a customer of Boeing's, said if the work stoppages
continue, we will find another supplier of our airplanes?
Mr. Solomon. That is not evidence on the record, and I am
not going to talk about facts that are going to be introduced
either by the general counsel or by Boeing in this case.
Mr. Gowdy. Mr. Solomon, can you name me a single, solitary
worker in Washington State who has lost their job as a result
of Boeing's decision to build a separate, distinct line of work
in Charleston?
Mr. Solomon. Not at this time, no.
Mr. Gowdy. Can you name me a single, solitary employee in
Washington State who has lost a benefit as a result of Boeing's
decision to build a separate, distinct line of work in
Charleston?
Mr. Solomon. Not at this time, no.
Mr. Gowdy. Then where is the retaliation, Mr. Solomon?
Mr. Solomon. The theory of the complaint is that the
decision to build the second line in South Carolina was
motivated by the employees having exercised their Section 7
rights.
Mr. Gowdy. Which goes exactly to the first question I asked
you. So I am going to ask you again. Can Boeing factor in the
fact that customers are going to leave them if the work
stoppages continue? Is that among the myriad factors? Can they
factor that in?
Mr. Solomon. Boeing will introduce evidence saying that
they had reasons other than----
Mr. Gowdy. Mr. Solomon, you are the prosecutor. You get to
decide whether or not there is probable cause.
Mr. Solomon. Yes, but Boeing--all I'm----
Mr. Gowdy. You didn't have to file this complaint. You did
not have to file this complaint.
Mr. Solomon. Of course.
Mr. Gowdy. You get to exercise your discretion and whether
or not probable cause exists that a violation occurred.
Mr. Solomon. Yes.
Mr. Gowdy. So I am asking you, as part of your deliberative
process, did you factor in whether or not Boeing can consider
the likelihood of losing customers if the work stoppages
continue in Washington State?
Mr. Solomon. We believe that the evidence will show that
Boeing was motivated by retaliation for their employees'
Section 7 rights and their right to strike.
Mr. Gowdy. And I will ask you again. Where is the
retaliation? Do you agree that there are more employees at
Boeing in Washington State now than there were when you filed
your complaint?
Mr. Solomon. There are now----
Mr. Braley. Mr. Chairman, I have a point of order.
Chairman Issa. The gentleman will suspend. The gentleman
will state his point of order.
Mr. Braley. Under Rule 9(e) of the committee rules, I
object to this line of questions. It is not relevant to the
subject matter before the committee, and it is in violation of
the chairman's stated limitation on the scope of the hearing.
And I would like a ruling on my objection.
Chairman Issa. The chair will rule. The line of
questioning, as the chair interprets it, is about the
gentleman's decision process leading to an action already
completed and is not work product-related to any pending case
or prosecution.
The gentleman is not--his point of order is not accepted.
The gentleman may continue.
Mr. Braley. Mr. Chairman, I have a further point of order
then.
Chairman Issa. The gentleman will state his point of order.
Mr. Braley. Mr. Chairman, a prosecutor who is in charge of
determining probable cause and then overseeing the eventual
prosecution of a claim does not waive any work product or
attorney-client privilege to the client that he or she
represents. And therefore, the chairman's ruling is
inappropriate and in violation of Rule 9(a).
And I would like to have a ruling on that objection as
well.
Chairman Issa. I rule it not correct.
Mr. Solomon, I said I would return to the question if we
got into this situation. So if you don't mind, briefly I would
like to--we had agreed that that which was public. Now if you
are not aware of it being public, you certainly can say that.
That which was public was acceptable. That which was already
part of a decision you had made, but not directly a strategy.
For example, if Mr. Gowdy were to ask you how you plan to
discount that possibility or whether that was a major factor,
minor factor, however you were going to present it as a factor,
that would be within the line of future work. My understanding,
and hopefully, you will acknowledge, those things which you
already know and were part of your decision process or those
things which are public or discoverable--in other words,
entitled to be discovered by Boeing--would be considered to be
reasonable to be asked about that.
Do you still agree that that is within the bounds of this?
Mr. Solomon. I think where we part company is that I do not
plan to disclose what's in the investigative file, and
regardless of what's in the----
Chairman Issa. Because that is not discoverable and already
discovered by Boeing?
Mr. Solomon. Correct.
Chairman Issa. So they are not entitled to know what you
are going to present?
Mr. Solomon. That is correct.
Chairman Issa. Okay.
Mr. Solomon. And right now, as we are sitting here, the
parties are engaged in subpoena issues and disagreements over--
over documents and information being exchanged from--to, you
know, each has asked others and----
Chairman Issa. And you have my total support if, in fact,
it is subject to ongoing debatable discovery, we do not intend
on preempting that discovery.
One last question. Hopefully, we will get back to Mr.
Gowdy. You are the foremost expert on whether or not--at your
agency whether or not something is part of consideration. We
are not asking, I don't believe, for anything that would say
isn't it true that if you found this, then you shouldn't have
brought that. That would obviously exceed our scope.
But if something is within the bounds of consideration,
part of it, and does not dissuade the fact that some other
action could cause an action, it would seem logical that you
would be answering those questions.
Can you agree and attempt to give an answer to Mr. Gowdy as
to whether what I think you are saying, which is, yes, it is
one of the considerations, but it is not part of our structure
of the case. Meaning, yes, they are allowed to consider that.
But, no, that is not the basis.
In other words, elimination, that is not why we brought the
case. We didn't bring the case because they had a right to do
that. We brought the case based on the items which you have
previously stated. If you could do that, perhaps we can move on
without any further appeals.
Mrs. Maloney. Well, Mr. Chairman, I----
Chairman Issa. Once again, I am talking to the witness,
please.
Mr. Solomon. The part that I'm struggling with, Mr.
Chairman, is that whether things are in the public--because
they've been in the newspaper doesn't make them true. Because
they've been in the newspaper doesn't mean that it's part of
Boeing's defense. And you know, the hearing, when the hearing
gets to the substantive part of this case, Boeing will have
complete and ample opportunity to present their side of this
story.
And that's where that's----
Chairman Issa. Okay. If we can try to go forward a little
longer with Mr. Gowdy's questions, of those items which are not
part of that not yet discovered.
Yes, ma'am?
Mrs. Maloney. May I join my colleague in objecting? I find
it highly unusual----
Chairman Issa. The chair has already ruled. We have had a
colloquy----
Mrs. Maloney. I am bringing my own objection.
Chairman Issa. The chair has already ruled.
Mrs. Maloney. I am bringing my own.
Chairman Issa. It is not in order to bring duplicate
agenda.
Mrs. Maloney. Okay. I am bringing a different one.
Chairman Issa. The chair recognized Mr. Gowdy.
Mrs. Maloney. I am bringing a different objection.
Mr. Gowdy. Thank you, Mr. Chairman.
Chairman Issa. What would----
Mrs. Maloney. And my objection is that you are calling
before your committee an ongoing case that is taking place
right now----
Chairman Issa. The gentlelady----
Mrs. Maloney [continuing]. And you are calling the
prosecutor of that case----
Chairman Issa. The gentlelady is not recognized. Please,
Mr. Gowdy?
Mrs. Maloney [continuing]. Before here and no one from
Boeing.
Mr. Gowdy. Thank you, Mr. Chairman.
Mrs. Maloney. Now is that intimidation, or is that----
Mr. Gowdy. Mr. Solomon.
Mrs. Maloney [continuing]. Prejudice, or is that just plain
unfair?
Chairman Issa. The gentleman will suspend. I want to make
it clear we did not invite Boeing. We did not believe it was
appropriate to have members of the union or members of the
company here.
But having said that, the minority picked its witness, and
your witness is here. If you had wanted Boeing to be here, that
could have been your choice.
The gentleman is recognized.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Solomon, I certainly didn't intend for my questions to
rile my colleagues on the other side, and I thought we had
moved on past that. I thought that we were discussing whether
or not you could name any employees in Washington State who had
lost their jobs as a result of Boeing's decision to move to
Charleston, and you said no.
Mr. Solomon. I said not at this time.
Mr. Gowdy. And I asked you whether or not you could name
any employees in Washington State who had lost a benefit as a
result of Boeing's decision, and you said no.
Mr. Solomon. Not at this time.
Mr. Gowdy. And I asked you where the retaliation was.
Mr. Solomon. The decision, the theory of our complaint is
the decision to build the second line in North Charleston was
in retaliation for the employees' right to strike.
Mr. Gowdy. And then we got back to whether or not,
hypothetically, a company not called Boeing can factor in its
likelihood of losing customers as it decides to pick a location
for a separate, distinct new line of work.
Mr. Solomon. Companies can make nondiscriminatory reasons
for relocating work, making new work, whatever, and that is not
a violation of the National Labor Relations Act.
Mr. Gowdy. I am not going to ask you about the use of the
word ``mothball'' because I don't have any evidence that you
used it. Although it has been alleged to have been used in
connection with this, I find no evidence that you used it.
Mr. Solomon. I did not.
Mr. Gowdy. But essentially, the remedy you are asking for
is tantamount to mothballing it. I mean, it is very clear,
paragraph 13, you want this line of work moved back to
Washington State.
Mr. Solomon. The time is up. But I would like to describe
this, if I may?
Chairman Issa. Please, you may respond.
Mr. Gowdy. Mr. Chairman, I would ask for 30 more seconds,
given the fact there was a little bit of commotion when I was--
--
Chairman Issa. Without objection, so ordered.
Mr. Gowdy. Thank you.
Mr. Solomon. When the National Labor Relations Act finds a
violation, alleges a violation, I'll say the general counsel
issues a complaint with an allegation of Section 8(a)(3). The
general counsel alleges as a remedy to return to the status quo
ante. That means where things would have stood, but for that
discrimination. That----
Mr. Gowdy. I have one final question, and I will be through
along those lines.
Mr. Solomon. Well, could I just say one thing before you do
it?
Mr. Gowdy. Sure.
Mr. Solomon. That is our--we have what we call notice
pleadings, that our complaint is to put people on notice this
is the violation. This is the remedy. But that is the beginning
of the conversation. It is not the end of the conversation.
Mr. Gowdy. It is not an exclusive remedy. You would settle
for something less than that?
Mr. Solomon. Boeing will have every opportunity at the
hearing to establish that it would be unduly burdensome for
them to take the second line back to Washington State, and that
will be heard by the judge.
Mr. Gowdy. All right. I have one more question, and then I
am done. If Boeing had picked Brazil instead of Charleston,
what would the remedy be?
Mr. Solomon. It would be the same. We would have--the
complaint would look the exact same as it does now.
Mr. Gowdy. What jurisdiction do you have in Brazil?
Mr. Solomon. It is not a question of Brazil. It is a
question of Boeing, if we have jurisdiction over Boeing. If
Boeing had completely moved to Brazil, it would be out of the
jurisdiction of us.
Mr. Gowdy. China? Same answer?
Mr. Solomon. Yes.
Mr. Gowdy. India?
Mr. Solomon. Yes.
Mr. Gowdy. Thank you, Mr. Chairman.
Chairman Issa. Thank you.
Ms. Norton.
Ms. Norton. My good friend Mr. Gowdy is a former U.S.
attorney and ought to know the difference between asking legal
hypotheticals, which are appropriate, and trying to try this
case before this committee. When he asks Mr. Solomon to name
employees who have lost their jobs or words to that effect, he
has gone to matters that could only be put in evidence and is
highly inappropriate.
Let me----
Chairman Issa. Would the gentlelady yield for just a
question? I will give you the additional time.
You know, not being as knowledgeable as all of you
prosecutors here, isn't it true that normally a case begins by
displaying facts not in dispute, and that is normally the
beginning of a case. And that would apparently likely be a fact
not in dispute, and that is what I thought----
Ms. Norton. What would be the fact not in dispute, Mr.
Chairman?
Chairman Issa. That no one had yet lost their job. Nobody
has lost their job.
Ms. Norton. I don't know if that is in dispute or not, Mr.
Chairman.
Chairman Issa. Well, the gentleman seemed to be asking to
get an answer.
Ms. Norton. Yes, well, he was asking what he had heard in
the newspapers. You don't know what is in dispute because there
is no record in this case, Mr. Chairman. And you have said that
you will, in fact, protect the process, and that is all I am
trying to do here.
In fact, I would like to--my questions go to process. First
of all, I would like to congratulate the lawyers in the case
because while there have been frequent complaints that go to
remedy, that go to motivation, I found your testimony, Mr.
Miscimarra, your testimony, Mr. Getman, to be both lawyer like.
In fact, they educated me.
But let me give you a hypothetical because I do think a
legal hypothetical is always allowed. This case is nothing at
the moment. No record, no nothing. It could be found in favor
of those who want the work in South Carolina. It could be found
in favor of those in Washington.
And I have no idea, particularly when reading your
testimony, which was like briefs, as to how this could be
decided. This is difficult, these cases involving capital
investment.
Now let me give you this hypothetical. We know this case
might go to the National Labor Relations Board. So, you know,
the whole board that is supposed to hear it has not heard it.
There is no record for them to hear.
It could go to the Court of Appeals. It could even go to
the Supreme Court. I agree with you, Mr. Miscimarra. Times have
changed. Nobody, in fact, in 1933 had in mind this, and that is
a question for Congress to consider. What do you do when the
economy changes in this way? You really have me to thinking
about that.
But let me ask you this. Suppose we were now before the
board or the Court of Appeals, and those hearings go on for
some time. And in the middle of those proceedings, a committee
of Congress called Mr. Solomon or other counsel before the
committee.
In your judgment, as members of the bar, as officers of the
court, I ask you would it be appropriate for this committee in
the middle of proceedings of the board, the Court of Appeals,
to summon, whether voluntarily or not, counsel who are engaged
in their business before one of those bodies?
Mr. Miscimarra.
Mr. Miscimarra. Yes. My mother actually taught me if you
ever receive a congressional subpoena, you should comply with
it. [Laughter.]
Ms. Norton. Mr. Miscimarra----
Mr. Miscimarra. Yes?
Ms. Norton [continuing]. Then you better listen to my
question. It said either voluntarily because you wanted to
avoid, of course, the unseemliness of a subpoena, or by
subpoena. So do not take the subpoena--as a member of the bar,
I would hope you would respond to a subpoena.
I am asking you about the appropriateness, as you well
understand, of asking counsel in the middle of proceedings
before a court of law to come before a political body. That is
my question, Mr. Miscimarra.
Mr. Miscimarra. Yes, and my response, Representative
Norton, would be--would be this. I know that the committee has
many, many lawyers that focus on separation of powers. I've
spent almost 30 years studying very hard and having a great
deal of experience with----
Ms. Norton. Mr. Miscimarra, I have only 5 minutes. You see
these other people have taken more time than they were even
allotted.
Mr. Miscimarra. Sure.
Ms. Norton. I am just asking you is it appropriate? You are
a member of the bar. Is it appropriate in the middle of the
proceedings before the Court of Appeals or before the board for
a committee of Congress to have a counsel come here? Yes or no,
sir?
Mr. Miscimarra. Yes. My response, Representative Norton, is
that is not an area--I've spent 30 years focused on major
business restructuring. I've not spent 5 minutes focusing on
the appropriate response if you get a congressional subpoena.
Ms. Norton. All right. But of course, we are not talking
about a subpoena necessarily.
Mr. Miscimarra. Okay.
Ms. Norton. But I respect what you say. You are not sure
there.
Professor Getman, you have spent 50 years looking at these
matters.
Mr. Getman. I wish you wouldn't have pointed that out,
Congresswoman. [Laughter.]
Ms. Norton. You pointed it out.
Mr. Getman. Good point. I'm very concerned about the
appropriateness of this hearing. In fact, that's the reason
that I'm here. I want to point out quickly that everything I've
written, I've always been critical of the National Labor
Relations Board at some point. So I am far from a flunky of the
board.
But on the other hand, I believe that the board plays a
vitally important function and that--and any effort, whether
intentional or not, that would tend toward intimidation of the
board in its function of protecting the rights of workers seems
to me to be a terrible mistake, no matter how popular it may
be.
And I really want to defend the board for probably the
first time in my life and say that the board's processes that
are underway are legitimate, and I think it's inappropriate to
engage in any effort which looks as though it might interfere
with that.
Chairman Issa. I thank the gentleman.
Mr. Farenthold.
Ms. Norton. You are going to cut me off when you gave Mr.
Gowdy extra time, when you, yourself, have interrupted people
who were doing questions?
Chairman Issa. I am trying to move this along because at
2:30 p.m., the Governor will be here. I am doing the best I
can.
Ms. Norton. Oh, heaven forbid. Heaven forbid that we are
not through our questions before the Governor comes.
Chairman Issa. Thank you, gentlelady.
Mr. Farenthold.
Mr. Farenthold. Thank you very much, Mr. Chairman.
I am going to try to keep this, in deference to the subject
matter, more at the 30,000-foot level than in the weeds. But I
did have just a quick personal question for Mr. Solomon.
I noticed you were from Seattle or you started your career
in Seattle?
Mr. Solomon. I started my career at the----
Mr. Farenthold. And how much time did you spend in Seattle?
Mr. Solomon. Hmm?
Mr. Farenthold. How much time did you spend in Seattle?
Mr. Solomon. I was--about 2 years total.
Mr. Farenthold. Okay. So it would be fair to say you
probably still have some friends there?
Mr. Solomon. Yes.
Mr. Farenthold. All right. Let me visit a little bit about
this. You talk about--I guess my question is, has this ever
happened in the past where there has been an action against a
business for starting a whole new line of business somewhere
else, or is this a first?
Mr. Solomon. There has been a line of cases as long as
there's been an act of what have been called runaway shops. And
companies have moved from the north to the south, from various,
southwest, and----
Mr. Farenthold. But I mean, that is typically moving
people. That is not new people.
Mr. Solomon. The theory of our complaint does not depend on
whether it's new work or not.
Mr. Farenthold. All right. So let me ask you, do you
envision a scenario where any set of facts that a company was
moving from a union State to a right-to-work State after a
strike, that the strike wouldn't be--or the move wouldn't be
considered a retaliation?
Mr. Solomon. Congressman, I cannot conjecture about cases
and fact patterns that are not before me.
Mr. Farenthold. All right. Were there any discussions with
the White House or the administration before pursuing this
case?
Mr. Solomon. Absolutely not.
Mr. Farenthold. All right. Now we are focused in this
country right now on putting people back to work and getting
jobs, be they union jobs or nonunion jobs. We have unemployment
at over 9 percent.
Do you think that this case and the uncertainty that it
creates--not just with Boeing, but with other businesses
looking to expand--might have a chilling effect on creating
jobs?
Mr. Solomon. Congressman, the National Labor Relations Act
applies to big companies, little companies, whether the impact
would have been $750 or $750 million. I have to issue complaint
if the--if I have reasonable cause to believe that the National
Labor Relations Act has been violated.
Mr. Farenthold. And do you think the amount of delay, that
these cases typically run for years, again, do you think the
delay might have an effect on companies and creating jobs and
the amount of time and money that it is costing to do it?
Mr. Solomon. I would answer that question by telling you
that I never--I was a reluctant issuer of this complaint. I
wanted it settled. I thought it was in everybody's best
interest to be settled. The parties have a longstanding
relationship with each other, going in the past, in the future,
and I would have preferred them working this out.
Mr. Farenthold. All right. Let me ask Mr. Miscimarra. You
heard Mr. Solomon say that this is kind of the ordinary course
of business. In your practice in this area, would you consider
this to be a unique or unprecedented, this case?
Mr. Miscimarra. Well, I think there are two things maybe
that one would consider unique. One is very few companies have
$750 million sitting around, and that's one of the problems
when you have a process that is so protracted in these cases.
I do think on the theory of the case, I think it's very
unusual, and I disagree with Professor Getman on this. Section
8(a)(3), which is the basis of the runaway shop claim,
prohibits discrimination in relation to terms and conditions of
employment.
Mr. Farenthold. Okay.
Mr. Miscimarra. And I'm not aware of any precedent that
suggests an investment decision would be----
Mr. Farenthold. All right. I am sorry. I am just about out
of time. I have one more question for Mr. Solomon.
Would the decision have been the same to prosecute this if
they were moving from Washington, say, to California or another
State that wasn't a right-to-work State?
Mr. Solomon. Under these same facts, yes.
Mr. Farenthold. Okay. Thank you.
Chairman Issa. If the gentleman would yield? So if they
move between two union--the same union in two different
locations, it would still be retaliation, if it was all
International Machinists?
Mr. Solomon. Well, I don't think we'd be--I don't think
machinists would have brought a charge if it was going from one
machinist plant to another.
Chairman Issa. So if the machinists win, there is no
problem. If the machinists feel they are losing, then we have a
potential problem is what you are saying?
Mr. Solomon. In this case, it was machinists to a nonunion
facility, and we----
Chairman Issa. So, again, Ms. Ramaker, the union set up a
failure, treated them badly. They voted the union out, and the
reprisal is that they brought this claim for your reluctant
consideration?
Mr. Solomon. That is a charge that has been filed yesterday
with us.
Chairman Issa. Thank you.
Okay. I would ask unanimous consent my letter to you, Mr.
Solomon, be placed in the record only because it cites some of
the constitutional issues of why we are here and why there is
an independent oversight responsibility.
Without objection, so ordered.
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Chairman Issa. Mr. Kucinich.
Mr. Kucinich. Thank you very much, Mr. Chairman.
In looking at the National Labor Relations Act, Section
8(a), it describes unfair labor practices. ``It shall be an
unfair labor practice for an employer to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed under Section 7,'' and then it goes on to spell out
other violations.
I want to, for the purposes of an instructional exchange
here, Mr. Solomon, so it is illegal for any employer to make
coercive statements to their employees?
Mr. Solomon. Yes.
Mr. Kucinich. Is it illegal for employers to threaten their
employees?
Mr. Solomon. Yes.
Mr. Kucinich. If employees engage in a strike, is that a
legally protected activity?
Mr. Solomon. It is, Congressman. And if I could take just a
moment, there's also Section 13 of the National Labor Relations
Act that, again, Congress passed in 1935 that says, ``Nothing
in this act, except as specifically provided for herein, shall
be construed so as either to interfere with or impede or
diminish in any way the right to strike or to affect the
limitations or qualifications on that right.''
Mr. Kucinich. So if a company threatens its employees for
engaging in strikes now or in the future, is it a violation of
the National Labor Relations Act?
Mr. Solomon. Yes.
Mr. Kucinich. Now, Professor Getman, you said that
officials of Boeing have confessed to violations of the law in
this regard. Did you not say that?
Mr. Getman. I said that's the--what I get from the
statements included in the complaint. One can always say maybe
they could explain it. But on the surface, there seems to be a
very powerful case along the lines that you are suggesting of
attempting to intimidate and of retaliation, yes.
Mr. Kucinich. So the Seattle Times reported that Boeing
executive vice president Jim Albaugh said, ``The overriding
factor was not the business climate, and it was not the wages
we are paying people today. It was that we can't afford to have
a work stoppage every 3 years.'' That is a direct quote.
Now, Professor Getman, in the context of what you know
about the National Labor Relations Act and in the context of
what was going on in Washington State at the time, when you
hear that quote, what does that make you think?
Mr. Getman. Well, I think it's a double unfair labor
practice, actually. That is, the statement itself is a form of
intimidation. Just making that statement because you know that
the workers at Boeing are going to hear this, and it's like
telling them, ``Don't strike, or this is what you're going to
get.''
Plus, it's an indication that they made the move for that
purpose, which is a separate violation. There are actually two
violations caught up in that one phrase--one of intimidating
and one of taking away work.
Mr. Kucinich. So then what would your answer be, as a
professor of law in this area, as to whether or not Boeing
unlawfully retaliated against its Washington State workers who
are lawfully exercising their right to strike?
Mr. Getman. Now here I have to be professorial and lawyer
like. If that's all the evidence, I know that there's a very
strong prima facie case. Let the hearing go forward. Let Boeing
explain. Let them bring out whatever evidence they have.
I'm not willing to convict Boeing on the basis of this
statement. I am willing to say it's proper to force them to
explain what does this mean? Is it in any way different from
the way it appears?
Mr. Kucinich. But if, in fact, Boeing planned to transfer
jobs away from Washington for the purposes of retaliating
against the workers in Washington who were lawfully exercising
their right to strike, would that be a violation of the
National Labor Relations Act?
Mr. Getman. Yes.
Mr. Kucinich. Okay. I yield back.
Chairman Issa. Thank you.
The gentleman from Florida, Mr. Ross?
Mr. Ross. Thank you, Mr. Chairman.
Mr. Solomon, the standard of proof necessary to prosecute,
the standard to prosecute is what?
Mr. Solomon. To bring the complaint?
Mr. Ross. Not to bring the complaint, but to be successful
in prosecution.
Mr. Solomon. Preponderance of the evidence.
Mr. Ross. So it is not overwhelming. It is not clear and
convincing. It is not beyond a reasonable doubt. And you feel
that in your negotiations between the sides that you had
sufficient evidence--I am not asking what it is. But you had
sufficient evidence at that time to meet that preponderance of
the evidence burden?
Mr. Solomon. Yes.
Mr. Ross. Okay. Now, with regard to standing, NLRB is there
to just protect union workers?
Mr. Solomon. Absolutely not.
Mr. Ross. And that is why the machinists were able to
because they had standing, they were able to file this
complaint. Now, nonunion workers, the NLRB is there to protect
them as well. Correct?
Mr. Solomon. Absolutely.
Mr. Ross. And what would their standing--is there a
different standard for standings between one or the other?
Mr. Solomon. No. We investigate every single charge that's
filed in every one of our regional offices. They can be filed
by any individual, any company, any union.
Mr. Ross. But they are no lesser than each other? Whether a
union worker or a nonunion worker, their standing is the same?
Mr. Solomon. That is correct, if they're the charging
party.
Mr. Ross. So if someone moved to intervene in this
particular case who is nonunion, they should have standing and
should be allowed to intervene, shouldn't they?
Mr. Solomon. The intervention----
Mr. Ross. They should, shouldn't they? I mean, unless there
is some extenuating circumstance that says you don't have
standing because you are not an employee or you are not a
resident there.
Mr. Solomon. Yes. There is longstanding--there are
longstanding board principles that apply to intervention. The
judge in Seattle was the one who ruled that the employees did
not have standing, and that is on appeal to the board in
Washington.
Mr. Ross. What was your position on that? Did you support
or oppose that motion to intervene?
Mr. Solomon. We opposed it.
Mr. Ross. Well, why is that?
Mr. Solomon. Under longstanding board principles, the
employees' interests will be adequately represented by Boeing.
Mr. Ross. Not by the NLRB because of why? I mean, you are
there for equal standing. Correct? In fact, wasn't one of the
reasons that Boeing employees wanted to intervene in this case
was to show that there was no union bias. That at the time
Boeing was in South Carolina, they were partly unionized.
If they had stayed unionized, would you have opposed the
intervention?
Mr. Solomon. Yes.
Mr. Ross. Really?
Mr. Solomon. Yes. [Laughter.]
Mr. Ross. Now--with regard to your remedy----
Mr. Solomon. Yes.
Mr. Ross [continuing]. And I know you have stated, in fact,
you have stated rather strongly in your complaint, I guess on
page 7, that you seek as your remedy to have the Dreamliner
project removed from South Carolina and taken to the great
State of Washington. Correct?
Mr. Solomon. We asked for the second line to be taken back
to Seattle.
Mr. Ross. Which, and as a matter of fact, the only facility
here is the Dreamliner facility. Correct?
Mr. Solomon. As I said, Congressman, this is the----
Mr. Ross. No, not----
Mr. Solomon [continuing]. The status quo remedy that is
always sought by the board in an 8(a)(3), and it begins the
discussion.
Mr. Ross. But you don't have to seek that remedy. You have
autonomy. You don't have to seek that remedy.
Mr. Solomon. Yes.
Mr. Ross. Now what I am saying is, is that how can you say
in your statement that we wish the South Carolina workers no
harm, and even your office go to painstaking lengths to say,
``Hey, we don't want to put people out of work in South
Carolina,'' and yet adamantly allege as your sole remedy to
have the removal of that facility from South Carolina? Can you
reconcile that?
Mr. Solomon. I will try again to explain that this is the
standard remedy that is pleaded by the general counsel in every
8(a)(3) violation, to return to what would have happened absent
the discrimination.
Mr. Ross. But it doesn't have to be, doesn't it? It doesn't
have to be. It doesn't have to be. And you know, we are here
because you are saying, oh, well, by golly, we are intervening
in a due process proceeding.
Well, the last time I looked that the NLRB was an arm of
the U.S. Congress. It is not a constitutional judicial body,
and therefore, we have oversight, and that is why we are here.
But more importantly, to me, is when we allow you the
opportunity to stand on privilege in not responding, and yet we
also politically have to look at the fact and the reality that
we have thousands of jobs that are at stake here.
And then I look at Mr. Getman who says what is the urgency?
Why do we have an urgency?
Ms. Ramaker, how many jobs are at stake here in South
Carolina?
Ms. Ramaker. Thousands.
Mr. Ross. Thousands. Mr. Whitman, with your own
organization, how many jobs are at stake here?
Mr. Whitman. Hundreds.
Mr. Ross. And Mr. Getman, would you not say that probably
the most crucial issue to our country today is jobs? And yet
you have the gall to state that there is no sense of urgency,
when you can look at the Dorsey Trailer case and see that, in
fact, as Mr. Miscimarra pointed out, that it is almost on point
with this one.
And in fact, in Dorsey Trailers, there were actual
violations, but the court found that they could not be--they
were not penalized for relocating their plant from Pennsylvania
to Georgia.
Mr. Getman. I got lost somewhere in that torrent of words.
Mr. Ross. I understand that because I am a practicing
lawyer. Now let me ask you this question. [Laughter.]
Chairman Issa. The gentleman's time is expired.
Mr. Ross. I will yield back.
Mrs. Maloney. Point of information. The gentleman----
Chairman Issa. Does the gentlelady have a question?
Mrs. Maloney. I have a corrective point of information.
Chairman Issa. Well, I will entertain your comment, but
there is no such thing as a point of information, please.
Mrs. Maloney. But the gentleman stated that the NLRA was an
arm of Congress. It is totally separate and independent. I just
wanted to get that information, point of correction.
Chairman Issa. I believe the gentleman's statement that it
was not part of the other branch, the third branch of
Government was correct.
At this time, I would ask unanimous consent that the
quotes, the entire quotes by the gentleman Mr. Albaugh be
placed in the record.
Without objection, so ordered.
[The information referred to follows:]

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Chairman Issa. The gentleman from Iowa, Mr. Braley, is
recognized.
Mr. Braley. Well, what Mr. Ross said, and it is in the
record, is the NLRB is an arm of the U.S. Congress, which is
blatantly false. It is part of the executive branch. And when
they are performing an adjudicative function, it is a quasi-
judicial proceeding, and that is why we have been talking about
due process throughout this hearing.
Thank you, Professor Getman, for not convicting Boeing on
the basis of the very tiny record we have been talking about
here today. And I said at the beginning of this hearing that if
you remember one thing about what is going on here today,
remember due process.
Because there has been many people talking about this as
being a baseless complaint. Well, folks, if you remember
anything about due process, think of all those Western movies
you have seen where a posse has cornered a horse thief, and
somebody in the posse says, ``Let's hang him.'' And the sheriff
says, ``No, let's give him a fair trial, and then we will hang
him.''
That is not due process. And we are not here today to
substitute our judgment for the NLRB, and that is what is wrong
with this proceeding. Now, since Mr. Kucinich brought this up,
let's take a look at the statement by Mr. Jim Albaugh that was
made on March 2010 to the Seattle Times. Can we play that now?
[Video playing.]
Mr. Albaugh. [On video.] But again, the overriding factor
was not the business climate, and it was not the wages we are
paying people today. It was that we can't afford to have a work
stoppage every 3 years. We can't afford to continue the rate of
escalation of wages as we have in the past. You know, those are
the overriding factors.
[End of video.]
Mr. Gowdy. Would the gentleman yield?
Mr. Braley. Now, Mr. Solomon----
Mr. Gowdy. Would the gentleman yield?
Mr. Braley. I only have 5 minutes, Mr. Gowdy, and I want to
complete this. I will not yield.
Mr. Gowdy. I am happy to stop the clock.
Mr. Braley. I will not yield. I will not yield.
Mr. Gowdy. Will you put the remainder of the document in
evidence under the rule of completeness?
Mrs. Maloney. You can't stop the clock. You can't--you are
not the chairman.
Mr. Braley. You will have an opportunity. Mr. Chairman, I
would ask for order.
Chairman Issa. I would advise the gentleman that by
unanimous consent, the entire document is in the record. We
will also post the entire video on the Web site.
The gentleman may continue.
Mr. Braley. And can I have all of my time reinstated, Mr.
Chairman?
Chairman Issa. You have all your time. One of the things
that we do back here real well is they actually stop when that
kind of stuff starts. So they will continue as you now
continue.
Mr. Braley. Great. Now one of the things that we know, Mr.
Solomon, is that there is a huge difference in the law between
discrimination and retaliation, and I want to make that clear
as well. Because if you are discriminating against an employee
on the basis of race, religion, sex, gender, some other
protected classification, that is a violation of the law.
And yet, if you retaliate against that employee because
they engage in the process of protecting their rights by filing
a complaint, that is a separate and distinct violation, is it
not?
Mr. Solomon. Correct.
Mr. Braley. And so, when you are bringing a charge against
Boeing for retaliation, that has nothing to do with the
underlying action, but whether, in fact, this video and other
evidence you plan to present at that hearing will provide a
legitimate basis to prove that Boeing took the action it did
because of a desire to retaliate against protected employees.
Isn't that correct?
Mr. Solomon. That is correct.
Mr. Braley. Now, Mr. Miscimarra, you had a great comment in
your statement, and you said there is not yet an evidentiary
record in the Boeing case. And that is really what part of the
problem is here today, is it not?
Mr. Miscimarra. The process certainly contributes to the
problems that everyone is talking about.
Mr. Braley. Right. And you, in fact, made the comment that
you greatly respect the members of the board, the acting
general counsel, and others employed at the agency, a fact that
is--or a feeling that is apparently not shared by some of my
colleagues. But one of the things you mentioned at the
conclusion of your wonderful appellate brief, which has 79
footnotes. I believe that is a new record for an opening
statement, Mr. Chairman. It was eloquent and well argued.
You happened to mention the Dubuque Packing Co. case. And
my wife grew up in Dubuque, IA, in a working class home built
by her father just down the street from the Wahlert family
mansion that owned the Dubuque Packing Co. Now is the Dubuque
Packing Co. in existence today?
Mr. Miscimarra. I don't know the answer to that question.
Mr. Braley. It is not, sir. It is gone with the wind. A
company that used to employ 3,500 employees, pay a payroll of
$20 million in the 1960's and, Mr. Chairman, won the gold medal
for the best canned ham at the California State Fair in 1960
and 1961, a fact I knew you would appreciate, is gone. And that
is what the National Labor Relations Board is all about, is
protecting the rights of workers and employers and providing a
fair process.
Now that process may take too long, and I wouldn't disagree
with you on that. But we know that people like Judge Merridge
in the Northern District of Virginia were successful in
significantly decreasing the amount of time it takes to process
contested cases if they really put their mind to it.
So rather than complain about the length of time and the
burden on the employer, why not just improve the process so
that it is fair and more responsive to the needs of everyone?
Chairman Issa. The gentleman can answer briefly, but his
time has expired.
Mr. Miscimarra. Yes, the only thing that I would say is
there are also issues that I and others think are significant
in relation to the interpretation of law and the remedy being
sought in the case.
Chairman Issa. With that, we go to the gentleman from South
Carolina, Mr. Wilson. And would you yield for just a quick
moment?
Mr. Joe Wilson. Certainly, Mr. Chairman.
Chairman Issa. Thank you.
Mr. Solomon, since we discovered that everyone seems to be
citing this video, both in print and writing, would you agree
to try to get the entire testimony on your Web site? We have
discovered that only the one line being quoted here and not the
rest of this gentleman's comments are on your Web site.
Would you attempt to make that record complete on your own
Web site for information purposes?
Mr. Solomon. Well, Congressman, I think that what is on our
Web site is what is quoted in our complaint. That is, again,
just notice pleading, and I would respectfully say that all of
this is going to come out at the hearing.
Chairman Issa. Okay. So if you are declining, I will say
that the House's Web site at the Oversight Committee will have
the entire interview with all of its various offsetting lines
that I am sure Boeing will bring up in their defense.
The gentleman is recognized.
Mr. Joe Wilson. Thank you, Mr. Chairman.
And Ms. Ramaker, I want to thank you for your courage to be
here today. You provide a human face of what I believe this is
about, and that is, as you indicated, denying your ability to
have a job, your ability to choose your job.
I want to thank you for pointing out that you are talking
about possibly 3,800 jobs, 3,800 families could be affected.
Actually, it is really 9,000 jobs with construction and
suppliers throughout the State of South Carolina.
I want to thank you, too, my colleagues needed to know that
the facilities are in place. A 1.1 million square foot facility
has just been completed. There are other buildings. These
buildings can only be used for aircraft manufacture. And as the
Seattle Times editorialized on Monday, the money has been
spent, over $1 billion, by Boeing, by the people of South
Carolina.
And Mr. Whitman, I want to thank you for your efforts of
giving opportunity to the people of South Carolina for jobs.
Can you tell us what these jobs are, and what is the pay scale?
Mr. Whitman. We supply a broad spectrum of jobs in response
to Boeing's needs for contract staffing. We have people who
monitor safety, part of the safety program there, all the way
through graduate engineers. The pay scale is anything from $15
to $55 an hour.
Mr. Joe Wilson. And so, these are great opportunities for
the people?
Mr. Whitman. They are. These jobs pay well above the local
average. And again, we're a contract agency, but we also
provide an entry point for many people to join Boeing as full-
time regular employees. And that happens all the time.
Mr. Joe Wilson. And we have, sadly, record unemployment in
South Carolina at this time.
Mr. Whitman. We do have record unemployment. I can tell you
for any time we post a job, we have literally hundreds of
people apply for every single job that we post out there.
Sadly, they're not all qualified, but that's the state of
things right now in the market.
Mr. Joe Wilson. And Mr. Solomon, the people of South
Carolina, a huge majority, have really been shocked at the
level of influence and power of unions in our country. Earlier
this year, a union out of Washington sued the Governor of South
Carolina for comments that she made in support of the right-to-
work law.
And I am just a real estate attorney, but I was startled. I
thought we had free speech, and I really thought that public
officials could make statements that they believed. But she is
being sued, her right to speak.
And then, sadly, earlier this year, you announced that you
would be suing the people of South Carolina, or could, along
with Arizona, Utah, South Dakota. Each one of these States had
a referendum last year to amend the constitution to provide for
secret ballot.
Of all the States that I mentioned, I am very proud South
Carolina was number one. Eighty-six percent of the people of
our State voted to have secret ballots, Democrat and
Republican. And it is just shocking to think that such a
lawsuit could be filed.
And then we are here today. Where I have been working on
economic development all my life, it never occurred to me that
the Federal Government could intrude and deny jobs to the
people of our State. What would you say, what advice do you
have to people who are the--1,000 people who have already been
employed, the thousands more that may be employed, what advice
do you have to them as to what they should do in the future?
Mr. Solomon. I think that, you know, Boeing is free to use
the South Carolina plant any way it sees fit for
nondiscriminatory reasons. We have not asked to close the South
Carolina plant. As I have said repeatedly here, that the
allegation or the remedy that is sought in the--in the
complaint is only the beginning of the conversation, and Boeing
will have every opportunity to say that if they can establish
that the moved--the second line to Washington State would be
unduly burdensome that the judge will make a decision, and the
board and the courts will make a decision.
But if I could, as to the preemption suit, I would like to
say that the National Labor Relations Board loves secret ballot
elections. The problem is that the amendment that passed said
that the only way employees can become unionized is through a
secret ballot election.
And under our Federal law, that is not the only way that
employees can choose union representation. And as a result, the
amendments directly conflict with Federal law and are,
therefore, preempted. And I have no choice but to file these
suits.
Chairman Issa. I apologize. The gentleman's time has
expired.
Mr. Scott.
Mr. Scott. Thank you, sir.
I just have a few questions. For the sake of redundancy, I
want to just clarify a couple of definitions. I know, Mr.
Miscimarra, you are not a grammarian necessarily. But please
help me with some definitions here.
Mr. Miscimarra. Sure.
Mr. Scott. The first definition I want is the definition to
transfer. Part of this suit is about transferring assets from
one location to the other location, and I keep hearing Mr.
Solomon talk about transferring back the second line.
Can you help me with the definition of ``transfer of
assets?''
Mr. Miscimarra. Well, for purposes of Section 8(a)(3), the
conventional--what we see in the cases with alleged
discriminatory transfers, work or equipment moves from point A
to point B.
Mr. Scott. Work or equipment. And the whole notion of
losing jobs in one location to the other location, can you help
me with the definition of ``created'' versus ``transfer?'' If
you transfer assets and you transfer jobs, isn't that different
than creating assets and creating jobs?
Mr. Miscimarra. I think, although I am no grammarian----
Mr. Scott. Of course not.
Mr. Miscimarra. My interpretation of to refer, for example,
to the Boeing situation----
Mr. Scott. Yes.
Mr. Miscimarra [continuing]. If employment is increasing in
South Carolina and employment is also increasing in Washington
State, I am not aware of any cases that would suggest that
constitutes a transfer.
Mr. Scott. Mr. Solomon, the complaint alleges that Boeing
decided to transfer its assets or its second line for the 787,
for the Dreamliner, from Puget Sound to North Charleston. Is
that correct?
Mr. Solomon. That's correct.
Mr. Scott. But as I understand it, this second 787
Dreamliner, the assembly line, did not actually exist in Puget
Sound. Is that correct?
Mr. Solomon. That is correct.
Mr. Scott. So how do you transfer assets that do not exist?
Mr. Solomon. The theory of our complaint is but for the
unlawful motivation of Boeing----
Mr. Scott. Yes, sir. Let me ask the question one more time.
Mr. Solomon [continuing]. They would have built the second
line in Everett.
Mr. Scott. Let me ask--you have said three times today
``transfer back the second line.'' How do we transfer assets
that simply do not exist? Can we, in fact, transfer an
intangible that doesn't exist back to a place?
Mr. Solomon. The second line does exist.
Mr. Scott. It exists now, but did it exist in Washington
State?
Mr. Solomon. No.
Mr. Scott. So can you transfer, can you literally transfer
back something that did not exist there?
Mr. Solomon. The--you know, I would say that you're--you're
overparsing the word ``transfer.''
Mr. Scott. I am assuming----
Mr. Solomon. The theory of our complaint is that the second
line would have been built in Everett, absent the unlawful
discrimination.
Mr. Scott. So we can't really agree on the definition of
transfer or assets or tangible or intangible.
Mr. Solomon. Yes.
Mr. Scott. So did Boeing transfer any jobs then from the
existing location in Washington State to North Charleston? The
key word being ``existing.''
Mr. Solomon. Not at this time, but there is the possibility
that as planes are built in North Charleston, that those planes
would not be built in Everett.
Mr. Scott. The general counsel of Boeing, Michael Luttig,
wrote you a letter on May 3rd, and he explained their decision
to build a new, a new assembly line. So a new assembly line
would not be the same as transfer. Is that accurate?
Mr. Solomon. Again, I don't think that this parsing of
definitions is going to get us anywhere. Boeing has a different
view of this case than we do, and they will have ample
opportunity on the record to present the facts as they see
them.
Mr. Scott. Mr. Solomon, as I am not a lawyer, I just want
to work on definitions. Because if your case is built on the
fact that Boeing transferred assets from one location to
another location that never existed at the first location, it
is really difficult for us to digest that we are actually
having a real conversation about the transfer of assets.
And if no one lost their job in the first location, it is
really hard for us to digest the fact that 1,000 employees and
a $1 billion investment in the second location has anything to
do with not the loss of, but the actual creation of more jobs
at the first location.
So it is really hard for us to digest, as non-lawyers, how,
in fact, we have a case, which we consider baseless, because if
you are not really transferring assets from Washington State to
North Charleston, you are not really losing any jobs in
Washington State because of North Charleston, then where is the
base of the case?
Mr. Solomon. The case, I'll try again, that the second
line----
Mr. Scott. Yes, sir. Please. I am just trying to figure it
out.
Mr. Solomon [continuing]. Would have been built in Everett
and not in North Charleston.
Mr. Scott. How do we know that, though?
Mr. Solomon. That is the theory of our complaint. That is
based on the evidence that we gathered.
Mr. Scott. So, Mr. Luttig, the general counsel for Boeing,
simply said that they were creating a new line. So, from a
competitive perspective, from a competitive perspective, is it
not good to have dual locations perhaps?
If, in fact, the threat of a shutdown allows for them to
have dual locations, do we not find ourselves in a more
competitive environment for our goals of creating larger
exports from this country to other countries? And if we are----
Mr. Solomon. A company is free----
Mr. Scott [continuing]. Actually going to create new jobs
in Washington State and new jobs in South Carolina, I don't
understand how we arrive at the conclusion that simply someone
has been harmed because there were no assets that were tangible
to move from one location to the other location, and there were
no jobs that were lost, no union jobs were lost at the current
location. And there were 1,000 new jobs created at the North
Charleston location.
Mr. Gowdy [presiding]. The gentleman's time has expired.
Mr. Solomon, you may answer if you would like to.
Mr. Solomon. I understand your position, Congressman, and
my guess is that Boeing might well present your position. But
right now, what we decided is that the decision to build the
second line would have been built in Everett, not in North
Charleston absent the unlawful retaliation.
Mr. Scott. So it is intangibles versus tangibles.
Thank you, Mr. Chairman.
Mr. Gowdy. Regrettably, the gentleman's time has expired.
On behalf of Chairman Issa, I want to thank all the members
of the panel for your patience, for your time, for helping shed
light on what is an important issue to everyone on the dais on
both sides.
With that, we will take a brief recess and prepare for our
second panel.
[Recess.]
Chairman Issa [presiding]. This hearing will now come back
to order. The chair now recognizes the second panel--the
Distinguished and Honorable Governor of the State of South
Carolina, Nikki Haley; the Honorable Alan Wilson, attorney
general of South Carolina.
Pursuant to the rules of this committee, we ask that all
witnesses be sworn. Would you please rise and take the oath?
[Witnesses sworn.]
Chairman Issa. Let the record reflect that all witnesses
answered in the affirmative.
Governor, Attorney General, you have only one problem with
this wonderful facility, and that is that the amplification is
limited, and you are facing away from the people around you.
So, to the greatest extent possible, think of this as a rally--
[laughter]--without microphones.
We now recognize the distinguished Governor of the State of
South Carolina.

STATEMENTS OF NIKKI HALEY, GOVERNOR OF THE STATE OF SOUTH
CAROLINA; AND ALAN WILSON, ATTORNEY GENERAL OF THE STATE OF
SOUTH CAROLINA

STATEMENT OF NIKKI HALEY

Governor Haley. Thank you.
And thank you to the panel. Thank you for having us.
Welcome to South Carolina. For those that are visiting, we
hope that you will come back often.
And thank you for allowing us the opportunity to speak with
you today.
You know, the issue that we are talking about right now is
not just a South Carolina issue. This issue faces every
Governor in every State in the country. And what I can tell you
is what our story is.
In 2009, we were facing great challenges. We had high
unemployment. We had poverty issues. We had budget issues, just
like every other State. And we were blessed to see a great
American company decide to look at South Carolina to come here.
And since that company has decided to create jobs here, we
have seen a wealth of companies coming through here that have
decided to come. And the reason they come to South Carolina is
because the cost of doing business is low. We give them a great
trained work force. Our quality of life is great. And we have
companies that understand what it means to have a great
relationship between their employers and their employees.
And so, Boeing decided to come here. They created 1,000
jobs, and it energized the State, and it energized our people
in a way that we hadn't seen in a long time. And since then,
we've seen lots of suppliers come in. We've seen the fact that
Boeing, out of all the contracts they have, 91 percent of their
contracts are with South Carolina businesses, which is a great
testament to Boeing. It's a great testament to the businesses
that it can create.
But what I have also seen is, as Governor, my job is to do
whatever I can to create jobs. I never thought that the
President and his appointees at the National Labor Relations
Board would be one of the biggest opponents that we would have.
If you tell a great American company like Boeing that they
cannot create jobs in South Carolina, all you are doing is
incentivizing those companies to go overseas. And I am saying
we can't have that. It's an attack on our employers in this
country that are trying to keep business in America. It's an
attack on the employees who appreciate the fact that they have
jobs to go to. It's an attack on States that work hard to make
sure that we keep the cost of doing business low, that we
continue to have a pro-business environment, and that we do
everything that makes America great.
And I will tell you that I had--was blessed to be able to
attend the ribbon-cutting of Boeing last week. And before we
even took the stage, I had an employee come up to me and say,
``I love my job. This is the best job I have ever had. And I'm
now set.''
When I was speaking to the people of the company and to all
the visitors that were there and after I got off stage, the
number of employees that came and said, ``Thank you for
fighting for us. We love our jobs. We want to keep our jobs,''
it was overwhelming.
And so, what I would say is I wish this was being held in
the Boeing plant because they would speak for me, and I
wouldn't have to say a word. But what I will tell you is while
South Carolina is the first State to deal with this, while
Boeing is the first company to deal with this, this needs to be
the last time we deal with this. If we are going to prosper, if
our economy is going to prosper, we cannot allow a Federal
Government or unelected bureaucrats to come in and start
pushing their way in on our American companies.
As Governors, it makes it incredibly hard. For companies,
it makes it incredibly hard. And we appreciate you taking the
time and for your help in solving this problem.
Thank you.
Chairman Issa. Thank you, Governor.
Mr. Attorney General.

STATEMENT OF ALAN WILSON

Mr. Alan Wilson. Thank you, Mr. Chairman. I appreciate the
invitation by you and this committee.
This hearing is about far more than Boeing or South
Carolina. In fact, it's even more about the unions. It's about
an individual's right to allocate capital in the way that they
believe best serves their business.
As attorney general, it is my sworn duty, as South
Carolina's chief legal officer, to defend our constitution, our
State, and even our citizens. Fifteen attorneys general,
representing both right-to-work and union States, have joined
me in opposing the NLRB's complaint against Boeing. This
complaint is without legal merit or precedent and threatens the
company's $6.1 billion annual economic impact on South
Carolina's economy.
The draconian remedy, as some have called it, sought by the
acting general counsel would allow the board to choose where a
private business may locate its capital. Neither the board nor
the Federal Government should make private business decisions.
It is business that creates capital. It is capital that creates
jobs, not the Government.
Since its adoption in 1935, the National Labor Relations
Act has never been so distorted that it would destroy a
company's ability to make sound business decisions. The act
imposes few constraints upon the free flow of capital to a
right-to-work State. Legal precedents clearly demonstrate that
Boeing's decision to expand to South Carolina is, in fact,
lawful.
Boeing did not eliminate union jobs or remove work from
Washington State. It merely created new work here in North
Charleston. Under board law, it must be shown that existing
work, existing work was eliminated, subcontracted, or
relocated. In fact, even legal experts who support the board
concede this action is unprecedented.
The board's audacity to file this complaint constitutes the
shot heard round the business world. Companies around the globe
are thinking twice about locating or expanding operations in
this country, especially expansion into union States.
Based on this complaint and recent memos, the board appears
anxious to challenge any business expansion it deems
detrimental to unions as unfair labor practice. One can only
imagine the chilling effect this will have on business leaders'
desire to expand capital and investment in our economy.
Capital investment, as well as fundamental business
decisions related to unionization, are not anti-union animus
under Section 8(a)(3). While Boeing has not discouraged union
membership in Everett, Washington, the Supreme Court has upheld
legitimate business interest even though union membership may
have been discouraged.
How could a rational person legitimately disagree with
Boeing's decision when looking at South Carolina's business
climate, its labor stability, and its $900 million incentive
package? The acting general counsel's theory under Section
8(a)(3) that Boeing's actions are inherently destructive of
unionization is nothing but an attempt to thwart a company's
fundamental business judgment.
That theory is inapplicable to Boeing's decision to expand
here in South Carolina. In the words of the Supreme Court, a
business may make a prediction as to the precise effects it
believes unionization will have on its company. Such
predictions, including those concerning work stoppages, are
protected by the First Amendment.
Any claim by the acting general counsel that statements
made by Boeing officials were coercive and, thus, violate
Section 8(a)(1) are patently incorrect. The last work stoppage
cost Boeing $1.8 billion and caused customers to question
whether or not to buy from Boeing ever again. Despite this
fact, Boeing desired, thank goodness, to keep production in
Washington State. But despite that desire, the union refused to
assure labor stability.
Furthermore, Boeing's collective bargaining agreement,
which dates back to 1965, guarantees the company's right to
determine where work is to be performed. The Supreme Court has
recognized that management must have the flexibility to make
business decisions without being second-guessed as unfair labor
practice. The board is ignoring the rule of law in filing a
complaint without precedent.
The consequences of the board's actions, despite its
intent, would abolish a company's discretion to make those
business decisions. In 1788, Alexander Hamilton warned that the
freedom of the States can be subverted by the Federal head and
such subversion is repugnant to every political calculation.
Our Founding Fathers went to great lengths to prevent an
out-of-control Federal Government from nullifying private
business decisions. We, too, must go to great lengths to ensure
the Founders' promise is honored. The board's complaint is a
step toward radically rewriting the NLRA. The board chairman
has testified to Congress that she seeks to restructure the act
as a collective action to redress economic inequalities.
Unless deterred, this bureaucratic agency's action will
further paralyze our Nation's economy. Action must be taken in
the halls of Congress. I ask this committee to join me and
fellow attorneys general around the country in an effort to
preserve economic freedom in America.
I thank you for this time, and I am happy to answer any
questions that you may have.
[The prepared statement of Mr. Wilson follows:]

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Chairman Issa. I thank you.
I will recognize myself for the first round of
questionings. But before I do that, I would ask unanimous
consent that our letter--or sorry, that the Governor's letter,
along with other, a whole lot of other Governors, be placed in
the record at this time.
Without objection, so ordered.
[The information referred to follows:]

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Chairman Issa. Governor, like me, I understand you are not
an attorney. But you do understand business very well.
Governor Haley. Yes.
Chairman Issa. If the decision by BMW were covered under
the same thinking that NLRB is applying to Boeing, isn't it
true that basically BMWs would all be produced in Germany?
Governor Haley. That's exactly right. And BMW officials
would tell you that.
Chairman Issa. And if every company decides, is forced to
decide that they have to remain where their entrenched union
is, even if it means that they are unable to expand or take
advantage of new and emerging markets, both here and around the
world, wouldn't that be detrimental to this State? But wouldn't
it also be detrimental to companies like General Motors that
choose to set up factories in other countries, including China,
so that they can expand to take advantage of those markets?
Governor Haley. Yes. And Mr. Chairman, I actually think it
would be more detrimental to places like Washington who don't
have the right-to-work laws because they would basically be
scared to ever go into those States because they'd think they
could never expand outside of those States.
Chairman Issa. You know, Governor, I will share something
with you from my days in electronics. Electronics companies do
not wisely set up in Germany because they had those laws. It
was impossible to get rid of anything once you went into
Germany.
So I even was on the board when we acquired a company that
had operations in Germany. We didn't operate it 1 day because
if we operated it 1 day, we owned those employees.
And it is really tough to say we are not going to ever
touch that facility. Because if we did, we would own it. We
couldn't get rid of it. Where we, quite frankly, would have
been happy to try to reorganize it, but we didn't want to own
it. That is what the people of Washington will face if this
continues.
General Wilson, I have a couple of questions for you, and I
am going to deviate a little bit. You are also dealing with
your right to a secret ballot here, aren't you, with the NLRB?
Mr. Alan Wilson. That is correct.
Chairman Issa. And in your knowledge as an attorney and
from a Constitution standpoint, has there ever been any
question about who conducts elections in the United States?
Hasn't that--there has never been such a thing as a Federal
election. Every State conducts its own elections pursuant to
the Constitution, and isn't every State conducting secret
ballots for all of their elected officials, including all of us
on the dais?
Mr. Alan Wilson. Well, absolutely. That is correct.
Chairman Issa. So the NLRB is trying to, in fact, prevent
you from doing something that has been done constitutionally
for all elections, all elected officials since our founding?
Mr. Alan Wilson. It is my personal belief, Mr. Chairman,
that an individual's vote, whether it be for a Member of
Congress or whether it be to unionize, that your vote be
between you and your maker, not be between you and your
employer or you and a mob--oh, I said ``mob''--union boss. It
shouldn't be between anybody--[laughter.]
Governor Haley. You can say ``mob.'' That's okay.
Mr. Alan Wilson. My Freudian slip is showing.
Chairman Issa. General Wilson, that may be popular here,
but it might not fly in Seattle. But we understand.
Mr. Alan Wilson. But we believe that if someone wants to
unionize, they have that right, and they should be able
afforded that right, and it should be reflected in their vote.
Not by intimidation from the employer's perspective or a
union's perspective.
Chairman Issa. Mr. General, Governor, this morning I chose
to go to Boeing and go to the new building. And as I am going
through the line meeting with employees, no management picking
who I walked up to, I ran into a woman named Tina. And she was
very quiet, wasn't in management.
And to my amazement, I managed to pick a woman who is
fourth-generation Boeing employee, who, in fact, family roots
are all in Seattle. And she told me something not because the
company told her to, but because she simply believes it. That
she is so excited to be working here, a place that she was not
transferred. She chose to live here and simply got a job here
as a fourth-generation Boeing employee.
She told me, ``This place is the future. This is how we are
going to continue to be Boeing in America for the rest of my
life and the next generation.'' And I am not going to forget
what she told me because she said something great about your
State. She said this place is the future of avionics. This is a
place where we can continue to export.
And I think you should be very proud of Tina and all the
work force I saw there today. And thank you for being a good
working State and place where people choose to come from all
over the country.
Governor Haley. Thank you very much.
Chairman Issa. With that, I recognize the ranking lady for
her round.
Mrs. Maloney. Thank you very much.
And I appreciate very much your testimony. And
congratulations on your election.
Governor Haley. Thank you very much. Thank you.
Mrs. Maloney. We were even watching it in New York with
great interest.
First of all, Governor, your claim to support a worker's
right to join or not join a union, you have said. But here is a
collection of quotes and statements made by you in recent
months about unions, ``There is no secret I do not like
unions.'' Second, ``Come show your support for a great South
Carolina company. Say no to the unions bullying our
businesses.'' ``We will continue to do everything we can, stand
with the companies who understand what it means to take care of
their employees without the interference of a meddlesome, self-
serving union.'' ``The more heavy-handed the unions are with
us, the more we are going to talk smack back.''
These quotes, I would say, is fair to say that they do not
portray a neutral employee choice position. Rather, they
clearly articulate an anti-union posture, which you have
repeatedly communicated to workers in your State.
So my question to you is do you think workers can make a
free choice about joining or not joining a union, which they
have a federally protected right to do, when the chief
executive of their State is so aggressively anti-union and has
publicly announced steps undertaken by the State to help
companies keep unions out of South Carolina?
Governor Haley. Thank you, Congresswoman. And welcome to
South Carolina.
Mrs. Maloney. Thank you.
Governor Haley. Yes, I did make all of those statements.
And the reason that I made those statements is when I see the
NLRB doing this to Boeing, they give me great reason to say
them. And I will tell you that South Carolina is not a State
that appreciates being bullied. Our companies don't appreciate
being bullied, and the unions have not shown us in any way that
they have respect for our employees.
What we have is a great relationship between our employers
and our employees. It's a direct relationship. It's one that I
will continue to protect under the right-to-work laws that we
have.
Any employee has the ability to join a union. What you will
find in South Carolina is very few employees want to. And the
reason they don't want to is because they love the companies
they work for. You can go to our Boeing facility here, and they
don't want to be taken by the unions. They want to be made sure
that they have the right to choose and what they choose is not
to be a part of a union.
Mr. Scott. Would the gentlewoman yield for a moment?
Mrs. Maloney. No, I will not.
Mr. Scott. Are you sure?
Mrs. Maloney. I will at the end of my time.
Mr. Scott. Thank you, ma'am.
Mrs. Maloney. First, well, the case that is being brought
is on due process and the right to protest. It is a
constitutionally protected right. That is what the case is.
But Attorney General Wilson, you keep referring to the work
in South Carolina as ``new work.'' But isn't it true that
Boeing has publicly announced that it will close the surge
line, one of two assembly lines in Washington State, when its
South Carolina plant is fully operational?
Mr. Alan Wilson. I'm not aware of that comment by Boeing,
but I am aware of the line of logic that Representative Scott
went in the last panel. How it's hard to transfer something
that's not in existence and how it's hard to retaliate when
you're adding jobs to a company in State number one, which is
Washington State.
So I'm not aware of the comment that you claim Boeing made,
but I am aware of the result is that Boeing has netted 2,000
jobs. South Carolina has netted 1,000 jobs.
Mrs. Maloney. Also, I would like to ask you, as an officer
of the court, you must disapprove law breaking as a predicate
for economic development. And as an officer of the court, do
you believe it is appropriate for a governmental entity to
advocate law breaking as an economic development strategy?
Mr. Alan Wilson. I'm sorry. Say that again.
Mrs. Maloney. Well, if Boeing has broken the law and
illegally retaliated against Washington State workers, wouldn't
you, as an officer of the court, have to oppose such actions?
Mr. Alan Wilson. Well, if Boeing has retaliated by adding
2,000 jobs in South Carolina, 1,000 jobs in Washington State,
$6.1 billion investment in this State, then I hope Boeing
continues to retaliate against us and every other State in the
country because we need more retaliation.
[Applause.]
Mrs. Maloney. Do you support due process and the right to
protest----
Mr. Alan Wilson. I support----
Mrs. Maloney [continuing]. Protected under the Constitution
of our country?
Mr. Alan Wilson. I support the due process of the 1,000
jobs that are trying to be taken from North Charleston, SC.
Mrs. Maloney. The case is about due process and the right
to protect the right of workers to protest, which has been a
right that has led to many protections for working people in
America.
My time has expired.
Chairman Issa. Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman. I will yield to my
distinguished colleague from the great State of South Carolina,
Mr. Tim Scott.
Mr. Scott. Thank you, Congressman.
May I ask the Governor just a couple of questions real
quick?
Governor, you and I served in the State house together. Is
that correct?
Governor Haley. Yes, we did.
Mr. Scott. You were there for 6 or 8 years?
Governor Haley. Six.
Mr. Scott. So when the Boeing plant opened in North
Charleston, you were a member of the State house?
Governor Haley. That's right.
Mr. Scott. The employees at the Boeing plant decided to
unionize. Did you try to stop that?
Governor Haley. I did not.
Mr. Scott. So you are fully aware of the fact that
employees of the Boeing plant decided to start a union. But
yet, even though all your comments were just brought to our
attention, you did nothing to stop them from having the
exercise of their constitutional rights?
Governor Haley. We have strong people in South Carolina.
They're going to do whatever they want to do.
Mr. Scott. And you support that?
Governor Haley. I absolutely support that.
Mr. Scott. Are you sure?
Governor Haley. I--with everything I've got, and I won't
make any more comments like that. But yes, I do. [Laughter.]
Mr. Scott. Thank you, ma'am.
Mr. Gowdy. Welcome, Governor Haley.
Governor Haley. Thank you.
Mr. Gowdy. Thank you for your leadership on this issue, and
your presence today, I hope, shows the rest of the world how
important this issue is to our State. So thank you for being
here.
Governor Haley. Thank you very much.
Mr. Gowdy. To my former colleague Attorney General Wilson,
thank you for your service to our State and your service as a
very distinguished prosecutor for a number of years.
Mr. Alan Wilson. Thank you.
Mr. Gowdy. Just for the record, if it matters, surge line
doesn't open until 2012. So I think we have yet another
pleonasm of something closing before it opens. But there have
been several of those here today.
General Wilson, it strikes me that this case is three-
dimensional. There is a practical aspect, which the Boeing
employee so eloquently set out earlier this morning. There is a
patently transparently political aspect to this. And there is a
legal aspect to it.
The political aspect, to me, is this administration is no
longer content with merely class warfare or generational
warfare. We are now going to inject regional warfare into the
equation, pitting workers who desperately need work in
Washington with those who desperately need it in South
Carolina. That is the politics of it.
I want to talk to you for a second about the legal part of
it. Have you come across any case law in your exemplary career
as an attorney that suggests you cannot state a historical fact
without having a complaint lodged against you by the NLRB?
Mr. Alan Wilson. I'm not aware of any.
Mr. Gowdy. It is a historical fact that there have been
work stoppages in Washington State. Correct?
Mr. Alan Wilson. That is correct.
Mr. Gowdy. And the mere recitation of a historical fact,
God help us if that constitutes an actionable incident by the
NLRB. Would you agree?
Mr. Alan Wilson. I do.
Mr. Gowdy. I wonder if it is okay if Boeing executives
think it, so long as they just don't say it? [Laughter.]
I mean, can they think, you know, we have had four work
stoppages, and we have a customer who is threatening to no
longer do business with us. Is it okay to think it? Is that
where they messed up, that they actually said something?
Mr. Alan Wilson. Representative, it is my opinion, based on
Mr. Solomon's testimony, that it seems to be a thought police
type situation here. Somebody that runs a company, and whether
you're the president of Boeing or the chief executive officer
of Bubba's Feed and Seed, if you have a business, you should be
able to talk to your employees freely and openly about the
consequences of actions.
Union employees have every right to strike. That is a
protected right that I agree with. But they do not have a right
to escape the consequences of their actions.
If a Boeing executive says we cannot afford work stoppages,
that should send a reasonable person that has some modicum of
common sense, that should send a signal to them that if they
can't afford to do something, that means their business model
is going to implode and jobs will dissipate. So I don't
begrudge any company for taking whatever actions are necessary
if it's a legitimate business interest.
The Supreme Court has held that you are allowed to make
comments under First Amendment. As a CEO of a company, you're
allowed to make First Amendment statements reflecting facts.
Work stoppages, $1.8 billion it cost us, we can't continue to
operate like this. Supreme Court protects that kind of speech.
What I find interesting is, is that--and even I know we saw
a clip earlier. The representative showed us a clip----
Mr. Gowdy. Well, I want to ask you about that because Timmy
took all my time, which I hope he will give me some of it back.
[Laughter.]
I want to ask you about that because you are a very
distinguished prosecutor. You are familiar with the rule of
completeness. We could never get away with what the NLRB did in
their complaint, which is hijack certain out-of-context quotes,
put it in a complaint, and then treat it like it is serious.
You have seen the full context to the quotes, right?
Mr. Alan Wilson. I have read the full context of the
statements. I do not recall every last point in the statements,
but I do----
Mr. Gowdy. If we were in a court of law--because I have
heard a lot about due process and fundamental fairness. If we
were in a court of law, that entire video would have been shown
under the rule of completeness because it is patently unfair to
select out certain quotes. Is that true?
Mr. Alan Wilson. I certainly would have objected to it
without being----
Mr. Gowdy. Yes, and your objection would have been
sustained. With that, my time is up.
Chairman Issa. Thank you.
The delegate from the District of Columbia, Ms. Norton?
Ms. Norton. And may I remind the former U.S. attorney that
a complaint is a short statement, only the barest statement of
what you mean to prove. And a complaint would not contain the
whole document. That document, sir, as you well know, would
come out at trial. And we have to avoid a trial here.
I welcome both of these officers of the State. While your
own testimony might be predictable, protecting your State, your
testimony is certainly understandable.
Governor Haley, you certainly have my congratulations. So
far as I know, you are the first woman elected in her own right
as Governor of a Southern State. That is a breakthrough and one
that women of every conceivable political party would want to
salute.
Governor Haley. Thank you.
Ms. Norton. I will have no questions for you. You are not a
lawyer.
Mr. Wilson, you and I belong to something of the same
fraternity, so to speak, because we are both members of the
bar.
Mr. Alan Wilson. Yes, ma'am.
Ms. Norton. I have tried to confine my statements to
process because of the capacity of a hearing by a political
body to taint the process which is now in operation. You would
not want that either because you surely want this to be over,
and we don't want to have bases for other matters to be alleged
in the nature of a complaint during this complaint.
On outcome, I just want to say for the record, I am not
sure whether you are aware. But in cases involving capital
investment and the National Labor Relations Act are among the
most difficult cases under the act. Most assuredly, they are
not immune from the act, but they are saturated with facts and
very difficult.
Moreover, I want to say for the record that while there has
been discussion of nothing but remedy here, which State should
get the jobs, the remedy section of this action would be heard
entirely differently from the violation section of the action.
Isn't that true, General Wilson?
That even if there were a violation, there is no certainty
that the remedy would be what the prosecutor, in this case the
counsel, wishes, which is the jobs themselves in one form or
fashion to be in South Carolina--or sorry, Washington State?
Mr. Alan Wilson. I beg your forgiveness, Representative
Norton. I don't believe I understand the question. Are you
asking me as it pertains to the remedy, what the remedy would
be or that the remedy----
Ms. Norton. I am saying would not the remedy, the question
of remedy be quite different from the question of whether or
not there is a violation. So that we don't confuse it. Even if
there is a violation of the National Labor Relations Act, it
does not follow that the remedy would be to extract the jobs
from one location to the other?
Mr. Alan Wilson. That----
Ms. Norton. There could be any number of different remedies
that the trier of fact could insist upon. Isn't that not the
case?
Mr. Alan Wilson. Representative, my fear is that there
could be other remedies. But the effect of the complaint, what
the complaint asked for is, in essence, that the Boeing plant
be closed and be moved back to Washington State.
My concern is the chilling effect that this action is
having not just across South Carolina and Washington State, but
throughout the United States and throughout the world.
Ms. Norton. Mr. Wilson, every time that a prosecutor--I am
sorry, my time is limited--brings a case, he will chill
something. And often the prosecutor loses. This is America
after all. What the prosecutor wants and what the law finds are
two different things very often. That is the difference between
us and the rest of these people who don't believe in due
process.
You say the act--in your prepared statement, the act
imposes few constraints upon the free flow of capital to a
right-to-work State. I couldn't agree with you more.
Legal precedents clearly demonstrate that Boeing's decision
to expand to South Carolina is lawful. Would you not agree that
though you argue that as a prosecutor--that is a typical
prosecutorial statement--would you not agree that that is a
question for the trier of fact?
Mr. Alan Wilson. Representative Norton, I have met with
numerous business officials throughout the State and country,
and the punitive measures right now are being realized----
Ms. Norton. I am asking you, sir, is that not a question--I
understand your view. I am not taking exception to your view.
My question is, is that statement that it clearly--that
Boeing's decision is lawful, is that not a question for the
trier of fact?
Mr. Alan Wilson. I would dispute to the degree that when
it's prosecutorial misconduct, it should be challenged at the
forefront.
Ms. Norton. Are you alleging that there has been
prosecutorial----
Mr. Alan Wilson. Absolutely.
Ms. Norton. Would you name what the misconduct has been?
Mr. Alan Wilson. Had you not been here for the last 20, 30
minutes? So----
Ms. Norton. Have you not been here for the last 4 hours?
Mr. Gowdy [presiding]. The gentlelady's time----
Ms. Norton. What is the prosecutorial misconduct?
Mr. Gowdy. The gentlelady's time has expired.
Ms. Norton. You allege misconduct by the prosecutor. Name
the misconduct. Name the misconduct.
Mr. Gowdy. The gentlelady will suspend. The gentlelady's
time has expired. At this point----
Ms. Norton. That is a terrible allegation to make
unsupported. And for you to let him get off without telling us
what the misconduct is, Mr. Chairman----
Mr. Gowdy. The gentlelady from the District of Columbia is
happy to seek someone to yield to her if she would like to
continue her time, but she is out of time.
The chair would now recognize the gentleman from the great
State of Texas, Mr. Farenthold.
Ms. Norton. You have allowed everybody else to respond to
the question, and you are not allowing him to respond to the
question. I asked the question in time, and the----
Mr. Gowdy. I would tell--I would advise--the gentlelady
will suspend.
Ms. Norton [continuing]. Chairman has allowed, once the
question was asked in time, the question, has allowed the
response to be made.
Mr. Gowdy. The gentlelady will suspend. The gentlelady will
suspend.
If you would like to seek time from another Member, you are
welcome to do so.
Ms. Norton. I seek time from you, Mr. Chairman, for
fairness.
Mr. Gowdy. It is not my time.
Ms. Norton. To get a response to my question.
Mr. Gowdy. I don't need any lectures. I don't need any
lectures on fairness, with all due respect.
Ms. Norton. You are getting one right here, Mr. Chairman.
Mr. Gowdy. Well, I don't need one from anybody to my right.
Ms. Norton. You need them from a lot of people.
Mr. Gowdy. Mr. Farenthold, the gentleman from Texas, you
are recognized.
Mr. Farenthold. Thank you very much.
I am going to take this back up to the cruising altitude of
30,000 feet. [Laughter.]
And move up to the big picture questions.
Governor Haley, can you talk for a second about some of the
things that you have done here in South Carolina to create jobs
and some of the laws and policies you have in effect to do
that?
Governor Haley. Yes. Thank you, Congressman, and welcome to
South Carolina.
Mr. Farenthold. Thank you.
Governor Haley. We appreciate you being here.
You know, South Carolina, since I've taken office in
January, we have recruited, created, expanded 7,000 additional
jobs to South Carolina just since January. And the reason is
the cost of doing business is low. We just passed stronger tort
reform. We've got a director of labor that has just reduced
fees and regulations for our businesses.
We understand what it means to have a pro-business State.
So it's workers comp reform. It's tort reform. It's making sure
our taxes are low. It's making sure that we stay competitive.
It's making sure that we provide companies the trained work
force that they need.
That's why they come to South Carolina. And then they see
our beaches and our mountains, and that's just an added given.
[Laughter.]
Mr. Farenthold. Now I assume that, as a politician and a
Governor, you kind of follow what is going on in Washington,
DC. You said you have reasonable taxes. I think we have a call
for higher taxes from Washington, DC.
I think you said you were trying to reduce regulations. I
think we can see that all Government agencies in Washington
right now are trying to increase. You have tort reform that you
passed. We are not talking about that in D.C. And you are
talking about a spirit of cooperation with businesses. And if
you look at Washington, I think you will see the exact
opposite, this case being one of adversarial.
So you all are creating jobs at a very high rate, as we are
in the State of Texas. We have basically got the same climate
that you have. And in fact, the past few years, 37 percent of
the jobs created in this country were created in Texas with
just those things--low taxes, low regulation, tort reform, and
cooperation.
Do you think there might be a concerted effort on the part
of the Government to see that States like South Carolina and
Texas have a hard time creating jobs because it disproves some
of the things that the current administration is trying to
implement in Washington, DC?
Governor Haley. Well, first of all, I will tell you that
Texas is one that I enjoy competing with, and I continue to
tell Governor Perry I'm taking all his jobs away from him. But
having said that, I will tell you that with all due respect,
Washington is dysfunctional.
And everything that I have tried to do as a Governor,
whether it is to fight healthcare, D.C. has continued and the
President has continued to fight and push mandates on us.
Whether it is to create jobs, he is continuing to allow cases
like the NLRB to create problems with our companies. Whether it
is with illegal immigration, he has gotten in the way of
allowing us to enforce that.
And so, I will tell you that with a Governor, whether it's
Texas or South Carolina, we have a job to do, and that's to
create jobs. And we have gotten no help from Washington.
Mr. Farenthold. Now, and I appreciate that. I am glad we
are on the same path to realizing that job creation is really
the most important thing in this country right now. Every
person that we get back to work saves us money, brings money in
as new taxpayers, and grows the economy. And I am hoping we can
get the Federal Government to act more like South Carolina and
Texas than we are right now.
That being said, you all can have the 787, we are looking
at the 797s. Anybody here from Boeing, we would love to have
you in Texas. [Laughter.]
With that, I will yield to----
Governor Haley. Stay away from that. We're not going to let
that happen.
Mr. Farenthold. With that, I will yield the rest of my time
to the acting chair.
Mr. Gowdy. I thank the gentleman from Texas.
General Wilson, you received a question trying to link up
the allegations of the complaint with the remedy sought. Would
you agree with me that the remedy sought is illustrative of the
intent of the complainer? You and I didn't seek death penalty
for auto theft, did we?
Mr. Alan Wilson. That is correct.
Mr. Gowdy. We don't seek death penalty for shoplifting. The
remedy sought has to be commiserate with the alleged offense.
And the fact remains that the NLRB sought essentially a death
penalty for this State when they fashioned their remedy. Do you
agree with that?
Mr. Alan Wilson. Absolutely.
Mr. Gowdy. All right. I would at this point recognize the
gentleman from Ohio, Mr. Kucinich.
Mr. Kucinich. Thank you very much, Mr. Chairman.
Governor, General, there are aspects of this discussion
that can get very heated. I understand there is 1,000 jobs at
stake here, and I respect that people in South Carolina are
fighting for their constituents because that is what you are
supposed to do.
I am just concerned, though, in the heat of the moment that
statements don't go out that later on could, if not corrected
or amended could be the basis for distractions. And so, I just
want to ask to respectfully ask General Wilson the statement
about prosecutorial misconduct, is that a global statement? Or
I just want to make sure that we don't get ourselves in a
situation where you are vulnerable to sanctions because of a
charge that may not be substantiated.
Mr. Alan Wilson. My--my comments were global in nature and
not meant to be specifically targeted toward anyone's integrity
or intent. But----
Mr. Kucinich. Okay. I just--thank you.
Mr. Alan Wilson. I can expound.
Mr. Kucinich. No, that is what I was hoping to hear.
Mr. Alan Wilson. Okay.
Mr. Kucinich. I want to say that there were a couple of
questions that were asked by my colleagues here that I had
sought answers to, and I am just going to use this time to go
over the territory. There has been a suggestion that Boeing was
only transferring new work, not work that already exists in
Washington.
And I had inquired of the IAM, and what they have said is
that Boeing is running two assembly lines in Washington, a line
that can produce seven 787s per month and a surge line that is
intended to produce three 787s per month, although it has
capacity for more. And Boeing has announced it will close the
surge line if and when it starts building the three 787s per
month in South Carolina. Clearly, a transfer of existing work.
And the next question I had related to the statement about
Boeing having added jobs in Puget Sound so that the workers
there haven't been harmed. What I have learned is that is not
true. That as Boeing has admitted to the press, its strategy to
outsource all 787 parts and subassemblies, only doing final
assembly in Washington, has been a supply chain disaster.
The company has had to hire a large temporary work force to
rework a large number of partially assembled 787s, as the
company still tries to complete them. Once those problems are
solved, the extra jobs in Puget Sound will vanish, and all of
the jobs in the surge line will also go away if and when Boeing
opens up that line in South Carolina and that Boeing's
retaliation in Washington will have caused a major loss of work
and jobs.
So I just wanted to get that on the record. I want to ask
the Governor, Governor, do you believe that workers have a
right to organize?
Governor Haley. Yes.
Mr. Kucinich. Do they have a right to collective
bargaining?
Governor Haley. Yes.
Mr. Kucinich. And do they have a right to strike?
Governor Haley. Yes.
Mr. Kucinich. And you are familiar with the National Labor
Relations Act?
Governor Haley. Yes.
Mr. Kucinich. And you are familiar that employers are
forbidden to engage in coercion, intimidation, retaliation?
Governor Haley. Yes.
Mr. Kucinich. And if you had learned that an employer had
engaged in retaliation for a statutorily permitted action on
the part of workers, as Governor, you would want to see the law
enforced, would you not?
Governor Haley. Well, I think it's--you know, you have to
see what retaliation is. What I will tell you is that what I
have witnessed is absolutely un-American. And when we----
Mr. Kucinich. What do you mean, un-American?
Governor Haley. When you have a National Labor Relations
Board that is getting--that is actually going against a great
American company like Boeing and telling them that they cannot
create jobs, the precedent that that sends to any company
looking to create jobs in this country, the precedent that that
sends to any company looking to create jobs in any other State
is terrible.
And the fact that we have allowed this----
Mr. Kucinich. Governor, I have 30 seconds left.
Governor Haley. Yes?
Mr. Kucinich. I just want to say this. That the issue here
is whether or not Boeing retaliated against workers for
exercising their protected rights against the law. We could
agree that Boeing is a good company. But the question is in
this case, it is a narrow question. Did they violate the
National Labor Relations Act by threatening to leave one area
in exchange, you know--and if they did not get their way?
Now this becomes relevant because, let's face it, somewhere
down the line, you, as Governor, could be faced with a case
that could be similar if someone wants to threaten to move jobs
out of South Carolina. Because you have jobs here, big
industries, that people later on just pulled out. And you know,
corporations have a lot of power in that regard.
I want to--thanks for your indulgence. Thank you, Your
Honor and General Wilson. Thank you.
Governor Haley. Thank you.
Mr. Chairman, could I just comment on that quickly?
Mr. Kucinich. My time has expired.
Mr. Gowdy. The gentleman's time has expired. Perhaps
Representative Scott would be gracious enough to allow you to
expound on that when his time.
But at this point, I would recognize the gentleman from
Iowa, Mr. Braley.
Mr. Braley. Thank you, Mr. Chairman.
And I was struck by the irony of your comment accusing the
Obama administration and President Obama of regional warfare.
We are, after all, in Charleston, SC, and Charleston knows a
thing or two about regional warfare. There was a little
incident here 150 years ago that gave new meaning to the
concept of regional warfare.
But I think the important thing that I need to share with
you, Mr. Chairman, and with the Governor is that on behalf of
all Iowans, I take great pride in the fact that Big Red was
returned to the State of South Carolina and the Citadel after
careful and meticulous preservation by the Iowa Historical
Society. So that is one positive thing that can bring us all
together. [Laughter.]
Governor, let me start with you. Representative Scott made
a comment in his opening statement accusing the NLRB of using
your tax dollars in an unprecedented way. My question for you
is did the State of South Carolina use State taxpayers' dollars
in an unprecedented way to lure Boeing's production line here?
Governor Haley. No.
Mr. Braley. So the question I am asking you is Boeing the
biggest welfare queen of the State of North Carolina, or has
someone received more than $900 million in incentives from the
State to locate here?
Governor Haley. I mean, you know, as we do with all
companies when we're trying to get them to come to South
Carolina, we compete with all of your States to try and get
them to come. And so, sometimes we do use economic development
incentives to do that or job incentives to do that.
Mr. Braley. Right. And my question is, is this $900 million
package the biggest incentive given to anybody to locate here
in the State of South Carolina that you know of?
Governor Haley. Yes.
Mr. Braley. One of the questions that I have for you, Mr.
Attorney General, is based upon a statement that was in your
prepared remarks, where you indicated it was your duty as South
Carolina's chief legal officer to defend your constitution,
your State, and your citizens. Do you remember that?
Mr. Alan Wilson. I do.
Mr. Braley. Did you also swear an oath to defend the
Constitution and the laws of the United States when you were
sworn in as attorney general?
Mr. Alan Wilson. I did.
Mr. Braley. Okay. So even though your job is as attorney
general of the State of California--South Carolina, forgive me.
Mr. Alan Wilson. That's okay. Good State.
Mr. Braley. You also have a corresponding duty to recognize
that South Carolina--at least since it came back into the
Union--has operated within a Federal system where there are
corresponding duties and responsibilities of elected officials
here in the State?
Mr. Alan Wilson. That is correct.
Mr. Braley. And one of the things that you also did was you
cited Alexander Hamilton in your statement that you shared with
us today.
Mr. Alan Wilson. That is correct.
Mr. Braley. I found that ironic also because Alexander
Hamilton founded the Federalist Party and founded the National
Bank and also the Federal Reserve, which a lot of people in
South Carolina aren't happy about right now.
So I guess my question for you is do you understand that in
a Federal system that there are Federal agencies who have a
responsibility to operate within that constitutional framework
and do their duty free of interference from outside parties in
order for that to be fundamentally fair to all of the parties
involved?
Mr. Alan Wilson. May I state my opinion?
Mr. Braley. Yes.
Mr. Alan Wilson. My opinion is, is that the law was being
misapplied by the National Labor Relations Board. It is my duty
to protect and defend the Constitution when the Constitution
itself is not being attacked, and I believe that is what I'm
doing, Representative.
Mr. Braley. Well, you made a statement in an opinion piece
you published in The State on Wednesday, June 1, 2011, where
you accused the President of being silent. And you wrote, ``The
President's silence is consent, akin to a parent in a grocery
store refusing to control an unruly child. As a result, the
labor board has been given the green light to wage war on
commerce and industry.''
Do you remember writing that?
Mr. Alan Wilson. Yes, I do.
Mr. Braley. Does Governor Haley have the legal authority to
control your actions and tell you what to do, as head of the
Justice Department of the State of South Carolina?
Mr. Alan Wilson. She does not.
Mr. Braley. So would you expect President Obama to have the
ability to control his administrative agency officials in
carrying out their responsibility under the Constitution?
Mr. Alan Wilson. Representative, two of the board members
are recess-appointed members who circumvented Senate
confirmation, including the acting general counsel. Second----
Mr. Braley. Well, wait a second. That happens all the time.
Mr. Alan Wilson. Am I allowed to answer?
Mr. Braley. A recess appointment is not something that is
bizarre or unusual. It is a practical reality of the political
consequence of confirmation in the Senate, isn't it?
Mr. Alan Wilson. Representative, the President, who I want
to see be successful, because when he fails, we all fail. But
his actions are leading us down the wrong path.
Mr. Braley. That is not my question.
Mr. Alan Wilson. Let me explain.
Mr. Braley. My question for you is, isn't that a practical
consequence of the difficult confirmation process that we have
seen get increasingly partisan for any Senate confirmation? The
fact that there are recess appointments does not in any way
diminish the fact that they have a sworn obligation to uphold
the law of the United States.
Mr. Alan Wilson. Representative, I would like to see the
President speak out. He doesn't have to get involved in the
independent agencies' actions. But when his own Chief of Staff
voted on the board of Boeing unanimously to locate Boeing to
South Carolina, you all are all saying that the Chief of Staff
of the President of the United States violated Federal law.
I would like the President of the United States either to
defend his Chief of Staff's actions or at least say that the
actions of this board could have dire economic consequences for
all States.
Mr. Braley. Which Chief of Staff are you talking about?
Mr. Alan Wilson. Mr. Daley.
Mr. Braley. Bill Daley?
Mr. Alan Wilson. Yes, sir.
Mr. Braley. Okay. So when you talk about his
responsibility, are you talking about his role as Chief of
Staff to have an obligation to direct the President to take
action?
Mr. Alan Wilson. These were Mr. Daley's actions prior to
Chief of Staff. But if my chief of staff violated Federal law,
I would certainly speak out against it.
The point is, Representative, that I would like to see the
President--the President is out there, talking about building
manufacturing jobs through private and public cooperation and
partnerships. But at the same time, he has an agency out there
that is doing everything contrary to that effort.
And I would like to see the President get out there and
talk about when you do things that cause CEOs of businesses to
not want to come to States, this hurts union States more than
right-to-work States. This hurts us all.
I would like to see the President speak to that. Whether or
not he gets involved with Mr. Solomon's case is irrelevant, and
I respect the independence of that agency, and I respect the
President for staying out of that. But speaking out on the
effects that this could have on our global economy is
paramount.
Mr. Braley. Well, I am glad we agree that it is important
to maintain the integrity of the adjudicative process, and I
yield back my time.
Mr. Gowdy. Thank you. The gentleman's time has expired.
In light of our colleague's comments about the rich and
provocative at times history of our great State, it is my
pleasure to recognize my colleague from Charleston, Mr. Tim
Scott. [Laughter.]
Mr. Scott. Thank you.
As our chairman has referred to me as ``Congressman
Timmy''--[laughter]--I do not want this to be taken away from
my time, but my good friend on the end there started a process
of asking questions that really compared apples to oranges. So
let me make sure that I have this straight.
Mr. Wilson, did the Governor appoint you?
Mr. Alan Wilson. No.
Mr. Scott. Did the President appoint Mr. Solomon?
Mr. Alan Wilson. Yes.
Mr. Scott. Governor, does the attorney general of South
Carolina serve at your pleasure or the people's pleasure?
Governor Haley. No, at the people's pleasure.
Mr. Scott. Are you sure?
Governor Haley. I am positive.
Mr. Scott. Are you all sure?
[Audience response.]
Mr. Scott. We are sure. Okay. Does Mr. Solomon serve at the
pleasure of the President? Would you concur?
Mr. Alan Wilson. Yes.
Mr. Scott. Okay. I wanted to make sure that we had those
facts straight. When we are talking about the return on
investment of the $900 million that South Carolina invested--
not gave or spent, but invested--in Boeing, is it unprecedented
for us to reserve a return on investment of $14 for every $1
invested, according to the Post and Courier's analysis of the
economic development package.
So, question. If you had an opportunity to invest a dollar
and get $14 back, would you do it every day, every other day,
or once a week? [Laughter.]
Because I sure want to understand this.
Governor Haley. We would do it all the time.
Mr. Scott. Okay. So if we can get another one of those
tomorrow, on Saturday----
Governor Haley. I'm on it.
Mr. Scott [continuing]. You'll come into work, and you'll
sign on?
Okay. Let us not get confused by the mumble-jumble of
politicians. When you think about this as a simple return on
investment, the Boeing Corp.'s decision to invest their
resources in our soil is, in fact, a solid return on investment
for the people of South Carolina.
Governor Haley. Yes. And Congressman, I will tell you this.
It doesn't take an attorney general. It doesn't take a rocket
scientist to look at this and see that this is flat-out wrong.
This isn't wrong for South Carolina. This is wrong for every
State in the country.
And I will tell you that the actions that are taken in
reference to this National Labor Relations Board move will
impact our country forever. This is serious. I don't want any
other Governor to have to go through what we're having to go
through.
And I will tell you that when you were talking about
retaliation?
Mr. Scott. Yes.
Governor Haley. The retaliation is coming from the
President--retaliation is coming from the NLRB. It is not
coming from Boeing.
Mr. Scott. I am glad you brought up the case of this global
economy. When you think about our competition in this State,
are we simply competing against Georgia or North Carolina or
Washington State? When your top prospects call into your office
looking for an opportunity to do business anywhere, do they
simply say it is either you guys or North Dakota or Texas?
Governor Haley. I'm right now talking with international
companies. We're talking to companies from India. We're talking
to companies from Germany. We're talking to several companies
outside of the United States.
This doesn't just keep them from coming to South Carolina.
This keeps them from even looking at any State in our country
when they see that something like this can happen.
Mr. Scott. With a 9.1 percent national unemployment, with a
double-digit unemployment in South Carolina, does this feel
like a joke to you?
Governor Haley. This is not funny.
Mr. Scott. Thank you.
Mr. Wilson, when you take into consideration the comments
made about the constitutional responsibilities of your office,
do you take into consideration the fact that the 9th and the
10th amendments of our Constitution allows for States to have
autonomy over what creates a workable atmosphere for employment
opportunities?
Mr. Alan Wilson. I do.
Mr. Scott. So do you believe that the right-to-work laws
that are in our State help us or hurt us?
Mr. Alan Wilson. I believe they help us.
Mr. Scott. Thank you, sir.
No further questions.
Mr. Gowdy. I want to thank, Madam Governor, thank you again
for your presence, your testimony, and your leadership on this
issue.
Mr. Attorney General, wonderful to see you. I am not sure
why your father didn't want to be present for it, but we will
investigate that and get back to you on it. [Laughter.]
On behalf of all of us on both sides, thank you for being
here.
And to my colleagues who are not from South Carolina, thank
you for visiting our State. And if there is anything Tim or I
or Joe or anyone else could do to make the remainder of your
stay more hospitable, please let us know.
With that, we are recessed.
[Whereupon, at 3:43 p.m., the committee was adjourned.]
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