Kaine gets it badly wrong on Boeing

In a Delphic-like statement, former Virginia Gov. Tim Kaine simultaneously claims to support the "existing law that a company can open, locate or relocate where it wants" and contends that the "courts" should decide the National Labor Relations Board acting general counsel's demand that Boeing abandon its almost $2 billion facility in South Carolina.

The demand is not based on "existing law," and waiting as long as a decade for resolution by the courts has enormous, harmful consequences — not only to Boeing but to Southern workers and American industry in general. Now is the time for our leaders, like Kaine, to take a stand against this restriction on American businesses.

A little more than 10 years ago, a highly partisan NLRB general counsel made a similar attempt to expand the law. In that case, a union decided not to strike but instead to use an "inside game," whereby workers would do only the exact tasks required by the collective-bargaining agreement. For example, instead of taking the utility's trucks home so they could respond promptly to emergencies, the utility's linemen left them at their work station. As a result, they could no longer respond quickly to families and consumers who had lost power or encountered dangerous downed power lines.

The company protested and made clear its displeasure, and when the union continued, it locked out the employees. That is, it sent the workers home without work and without pay.

The NLRB's general counsel asserted that the employer thereby "retaliated" against the employees. A majority of the members of the board — all nominated by President Bill Clinton and including the chairman, William Gould, who was thought of as so radical that the business community had opposed his nomination — flatly rejected this attempt to expand the law.

The majority concluded that the union had "commenced economic warfare" in the hope of forcing management to accept the union's bargaining demands. The majority held that the employer could defend against the union's weapon: To argue otherwise would ignore "the [U.S. Supreme] Court's observation. . . that 'the right to bargain collectively does not entail any "right" to insist on one's position free from economic disadvantage.' "

I was an NLRB member at that time. This is exactly what's being attempting again today — namely, to insulate Boeing's union from the natural consequences of its choice of economic weapons. Boeing's union had a long record of calling costly strikes. Boeing made known its concerns about the frequency of strikes, attempted to negotiate an accommodation with the union, and when the union refused, it chose to build its new plant in South Carolina rather than in Washington state.

Even the Seattle Times understands the dynamics at play here. It accurately wrote that the law Boeing is being accused of violating protects union activists, not "an entire union local from the economic consequences of what it does."

Moreover, to wait for the courts is unacceptable. The courts can act only after the board has completed its lengthy processes, which always takes years and sometimes decades. Boeing has built its facility and hired workers. It plans to start production this summer.

Meanwhile, this lengthy period of uncertainty regarding the law creates its own consequences: Boeing will understandably hesitate in making further improvements and expenditures necessary to keep its new South Carolina plant on the cutting edge of technology; workers who would flock to Boeing will hesitate leaving current jobs. Other unionized employers will hesitate to invest millions in facilities in Southern states. They may forgo the opportunity to expand their businesses and thereby stifle job growth.

The third, and perhaps the most disturbing, consequence is that since by its terms the law protects only current U.S. employees, foreign-owned companies with no unionized U.S. employees can freely move to South Carolina or other Southern states, giving them a competitive advantage over many American companies. Consider, for example, where the Japanese and German car manufacturers have located their new facilities and how their Southern workers have bested the Detroit-based American automobile manufacturers.

Kaine is wrong. What the NLRB is doing does not reflect current law. We must not wait for the courts. Relief must be provided forthwith to avoid harmful consequences to Boeing, to Southern workers and American competitors. It's time for Kaine to take a stand.