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The creation of non-union Boeing jobs in South Carolina as the firing on Fort Sumter

When Citadel cadets invited a War of Northern Aggression led by Abner Doubleday 150 years ago last April, they knew that the firing of canon balls at federal troops on a federal fort in Charleston Harbor was illegal in Lincoln’s eyes, if not the eyes of their nascent Confederate nation’s. The First and Second battles of Bull Run followed all the way to Appomattox Court House.

But who would have thought, some 135 years after the end of Reconstruction in the South, that the building of an airplane factory by a Northern firm in North Charleston would commence a third bull run around basic American rights to liberty and happiness pursuits sans union shop mandates?

After all, wasn’t it a Supreme Court victory by the Palmetto State’s own Deering-Milliken that separated American labor law from the Reds in establishing that:

It is not an unfair labor practice for an employer to close his entire business, even if the closing is due to anti-union animus.

Closing part of a business is an unfair labor practice under § 8(a)(3) of the Act if the purpose is to discourage unionism in any of the employer’s remaining plants and if the employer may reasonably have foreseen such effect.

If those exercising control over a plant that is being closed for anti-union reasons have an interest in another business, whether or not affiliated with or in the same line of commerce as the closed plant, of sufficient substantiality to promise a benefit from non-unionization of that business, act to close their plant for that purpose, and have a relationship to the other business which makes it probable that its employees will fear closing down if organizational activities are continued, an unfair labor practice has been made out.

There has been no “retaliation” against any union employee

Boeing has not closed its plant in Washington state. Not one employee has been punished due to labor union activity, that includes numerous strikes over the past two decades. More union employees work for Boeing’s union shop plant in the Evergreen State today than worked there when the building of the plant in South Carolina was announced over two years ago.

There has been no retaliation, yet the IAM Union has partnered with Obama’s National Labor Relations Board to file a complaint against Boeing for mere statements made by them as they evaluated the economics of expanding business in Washington or another location.

The law should only examine “intent” as a way to exonerate, not punish. We can’t read hearts, so let us base consequences on acts.

Hence the insidiousness of civil “intent” provisions that invite witch-hunts and abridgements of free speech. Unlike in criminal law where mens rea, or criminal intent, is an additional element that the state must prove beyond a reasonable doubt before they can fine you or, literally deprive you of your liberty.

Conversely, intent requirements in civil laws such as the National Labor Relations Act, allow one to be punished for motives rather than acts. For over 60 years, courts and the NLRB have danced around the full import of the vague “intent to retaliate” and “discourage unionism” elements of unfair labor practices to mostly take a common sense approach to labor laws that are anathema to the basic property rights that make America. America.

But Wagner’s Act has been waiting for Obama-like community-organizing  labor radicals since its passage. Taft-Hartley failed to correct the ticking time bomb and case law has been a predictable jumble that invites creative lawyers while trying to limit shruggings by Atlases.

Hence the precedents that generally waive the intent to discourage unionism so long as there is no actual, unilateral (after all, owners may totally close whole plants!) harm done to existing union workers. There precedents use devices like “dual motive” cases and “economic interests” to avoid broad applications of the actual language of the statute.

Congress can correct vague statutes and should stop writing them in the first place

A conservative Congress so-inclined could close the loopholes in the NLRA  that President Barack Obama’s NLRB  is using to establish the building of a jobs-heavy plant in South Carolina, and presumably all of the other 21 “right-to-work” (and mostly Southern) states, as a de facto unfair labor practice.

The law should make clear that Boeing’s actions are lawful, no matter that they acknowledge the economic effects of strikes or the likely rising of the Sun in the east. The Washington state union employees of Boeing have not been “retaliated” against. They continue to work full-time and get paid. They don’t have the right to be perpetually employed nor to have the owners of the business only expand operation in their home state.

That company officials speculate in public or private about expanding business in Washington but then later cite a fear of strikes as a reason for expanding elsewhere is no more “unfair” than a union that threatens to strike if an employer doesn’t give them a raise.

Law should bear some relation to common sense and be true to American liberty. It should not be a vague mishmash of a crap shoot with the outcome left to “experts” in robes and creative lawyers. This is not banana peel negligence law that must examine the “reasonable man” under ordinary circumstances and age of the banana peel based upon its blackness.

To leave in place the provisions of current labor law that allows the NLRB to punish anything that “discourages unionism” is to intimidate union shop companies from ever expanding to right-to-work states, and to discourage new companies from building plants in union shop states.

The right of an owner to his property is basic and should be protected with white light, unsullied by invitations to examine the depths of one’s heart. We are not the old Soviet Union. At least, we weren’t until The One that wishes to re-organize our American community took the throne.

[The author practiced in the labor law field during the 1980s and 1990s when he also served as counsel for a railroad labor union in South Carolina.]

Mike DeVine

Legal Editor – The Minority Report

Atlanta Law & Politics columnist for

“One man with courage makes a majority.” – Andrew Jackson

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June 2011


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