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71–079 PDF 2011

UNIONIZATION THROUGH REGULATION: THE

NLRB’S HOLDING PATTERN ON FREE ENTERPRISE

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

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

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

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

(III)

C O N T E N T S

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

(1)

UNIONIZATION THROUGH REGULATION: THE

NLRB’S HOLDING PATTERN ON FREE ENTERPRISE

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

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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?

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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:]

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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 131⁄2 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 overVerDate 17-JUN-2003 11:46 Dec 23, 2011 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\71079.TXT KATIE PsN: KATIE
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sight. 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:]

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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

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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.

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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-towork 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

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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,

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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

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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 worldclass 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.

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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 Carolinianbased 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.

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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

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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

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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.

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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

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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.

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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.

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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 antiunion 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

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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.

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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.

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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.

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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

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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.

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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.

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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?

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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.

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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.

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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——

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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.

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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.

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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?

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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.

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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.

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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——

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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

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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.

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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.

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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.

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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.

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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

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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——

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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

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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

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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.

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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-towork 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

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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 outof-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.]

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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.

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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.

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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.

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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 alVerDate 17-JUN-2003 11:46 Dec 23, 2011 Jkt 000000 PO 00000 Frm 00157 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\71079.TXT KATIE PsN: KATIE
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lowed 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

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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.

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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.

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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

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payers, 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

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tended 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

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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

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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——

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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 rightto-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.

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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.

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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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