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Obama: Job Creation in the South is de facto Unfair Labor Practice

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 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 Reconstruction in the South ended, that the building of an airplane factory by a Northern firm in North Charleston would commence a third bull run around the 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 that 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 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 deprive you of your liberty, literally.

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 inherently contradictory with basic property rights.

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 Examiner.com

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

More DeVine Gamecock rooster crowings at Modern Conservative, Hillbilly Politics, Unified Patriots,  Political Daily and Conservative Outlooks. All Charlotte Observer and Atlanta Journal-Constitution op-eds archived at Townhall.com.

 

by the Queen. 

Mike gamecock DeVine
A trial lawyer for two decades in South Carolina; owner of Ati Vista LLC since 2002 now associated with Lupa Law Firm; VP & Counsel for Buddy Allen Roofing & Construction Inc. since 2016 in Atlanta, Georgia; and a freelance writer, DeVine was the conservative voice of the Charlotte Observer from 2006-8 and has been the owner of HillbillyPolitics.com since 2009. www.devinelawvista.com

12 COMMENTS

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12 COMMENTS

  1. *Magnificent* dispatch, Mike. Absolutely fantastic.

    I am not sure what you mean by this: mens reaor criminal intent or I would fix it for you (first paragraph in the intent section.)

    You are entirely correct. Obama and his minions are operating under the rule of man, not of law. They (and their union buddies) disapprove of businesses operating without a union, therefore, they will prosecute you for daring to do so. The power and might of the US gov’t (and all our taxpayer money – ummmm – debt) are at their disposal, and they are more than willing to use and abuse it.

    I can’t *wait* until 2012 when this Chicago thug and all his cohorts are out of there. The next R better be willing to play hardball with the bureaucrats in these offices or we’ll never have a thriving economy again.

  2. Palmetto State welcome to the new economic civil war. It has been raging in fact since Jan 2009. If you start feeling a little paranoid, as though the federal government is coming after you personally….you’re not paranoid. The Lone Star State has been under direct -repeat, direct – targetted, economic and regulatory assault for two years now. NASA shutdown, platforms shutdown, EPA override of state agencies permitting of refineries (done to no other state), denial of fed disaster declaration for emergency funds while *2 million* acres of range burn,suing the state in fed court over control of education grant funding, need I go on? No coincidence here. Punitive action by the thugs against a right to work state already standing up to them. And need we cite -0-‘s assault on Arizona? Welcome to the growing list of prosperous sunbelt or southern states that Obama hates with a passion.

  3. Well done, Mike. I grew up in SC and lived there for 33 years. The people of the state tend to have relatively high work ethics which are attached to their self-respect and self-esteem. I can’t see them ever buying into the “poor persecuted-and-underpaid laborer” attitude presented by Unions.

    Please, continue to push the message about making alterations to the law to eliminate the kind of manipulation coming out of the NLRB. It’s badly needed, GC.

  4. Good post GC.

    I don’t think Obama will be happy until he brings back the National Recovery Administration and gets to tell industries where and how they can expand, what prices they can charge and how much they can produce.

    • Really I think you have got to the essence of Obama and the Libs, Brian. How can they persist after 2 years, of doing things hurting the country, causing higher unemployment and gutting our infrastructure? In their hearts, they believe they are FDR running to the rescue with a checkbook and a 1930 Keynesian playbook. They can’t be wrong in their minds – this is their rendezvous with destiny. ANd if they could find more money they would spend it as well, now., This is the only theory I can find that explains how Pelosi, Reid and Obama acolytes are acting, taking us right over the cliff..

  5. What was formerly the encroaching fingers of the federal reach, somewhat in the shadows, and behind the scenes, is now just a wholesale grab of assets.

    Right-to-work states are now no-rights states. The federal government confiscates your money and uses it to fund abortions. And ACORN. And SEIU. And now the government tells banks how much they can dharge for ATM transactions.

    It truly is time to fight back. America seceded from England over the Stamp Act. We are way, way past that now.

  1. *Magnificent* dispatch, Mike. Absolutely fantastic.

    I am not sure what you mean by this: mens reaor criminal intent or I would fix it for you (first paragraph in the intent section.)

    You are entirely correct. Obama and his minions are operating under the rule of man, not of law. They (and their union buddies) disapprove of businesses operating without a union, therefore, they will prosecute you for daring to do so. The power and might of the US gov’t (and all our taxpayer money – ummmm – debt) are at their disposal, and they are more than willing to use and abuse it.

    I can’t *wait* until 2012 when this Chicago thug and all his cohorts are out of there. The next R better be willing to play hardball with the bureaucrats in these offices or we’ll never have a thriving economy again.

  2. Palmetto State welcome to the new economic civil war. It has been raging in fact since Jan 2009. If you start feeling a little paranoid, as though the federal government is coming after you personally….you’re not paranoid. The Lone Star State has been under direct -repeat, direct – targetted, economic and regulatory assault for two years now. NASA shutdown, platforms shutdown, EPA override of state agencies permitting of refineries (done to no other state), denial of fed disaster declaration for emergency funds while *2 million* acres of range burn,suing the state in fed court over control of education grant funding, need I go on? No coincidence here. Punitive action by the thugs against a right to work state already standing up to them. And need we cite -0-‘s assault on Arizona? Welcome to the growing list of prosperous sunbelt or southern states that Obama hates with a passion.

  3. Well done, Mike. I grew up in SC and lived there for 33 years. The people of the state tend to have relatively high work ethics which are attached to their self-respect and self-esteem. I can’t see them ever buying into the “poor persecuted-and-underpaid laborer” attitude presented by Unions.

    Please, continue to push the message about making alterations to the law to eliminate the kind of manipulation coming out of the NLRB. It’s badly needed, GC.

  4. Good post GC.

    I don’t think Obama will be happy until he brings back the National Recovery Administration and gets to tell industries where and how they can expand, what prices they can charge and how much they can produce.

    • Really I think you have got to the essence of Obama and the Libs, Brian. How can they persist after 2 years, of doing things hurting the country, causing higher unemployment and gutting our infrastructure? In their hearts, they believe they are FDR running to the rescue with a checkbook and a 1930 Keynesian playbook. They can’t be wrong in their minds – this is their rendezvous with destiny. ANd if they could find more money they would spend it as well, now., This is the only theory I can find that explains how Pelosi, Reid and Obama acolytes are acting, taking us right over the cliff..

  5. What was formerly the encroaching fingers of the federal reach, somewhat in the shadows, and behind the scenes, is now just a wholesale grab of assets.

    Right-to-work states are now no-rights states. The federal government confiscates your money and uses it to fund abortions. And ACORN. And SEIU. And now the government tells banks how much they can dharge for ATM transactions.

    It truly is time to fight back. America seceded from England over the Stamp Act. We are way, way past that now.

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