During the Bush years, many progressives gave up hope that the government could really make companies pay when they broke the law.  Now a big company may have to pay a big price for illegally punishing workers.  Last month the National Labor Relations Board, the federal body that enforces labor law, issued a complaint charging that Boeing illegally transferred the production of a line of aircraft out of Washington State.  Boeing is accused of transferring the production to punish the workers there for going on strike.  Punishing workers for union activity is retaliation, and it’s illegal.  If Boeing is found guilty, it could be made to transfer the whole production line back.  Naturally, the prospect of the Labor Board seriously enforcing labor law has Republicans freaking out.

What started as an under-the-radar story has been blossoming into a hot button issue over the past two weeks.  Newly-elected South Carolina Governor Nikki Haley, whose state is both the new site of Boeing’s production and host of a crucial presidential primary, has seized the moment.  She made clear that presidential contenders seeking her support had better bash the labor board, and they’re obliging.  Former Minnesota Governor Tim Pawlenty took a whack at the NLRB at the first presidential debate.  Right-wing zeitgeist-meister Newt Gingrich timed an anti-NLRB op-ed on the topic to coincide with the announcement of his presidential campaign and highlighted the issue this weekend on Meet the Press.  Republican senators held a pro-Boeing press conference with Governor Haley last Monday and brought the company’s Vice President to testify last Thursday.  The temperature will keep rising as Boeing’s June NLRB trial approaches and more presidential contenders step up.

Right-wingers are rising to defend Boeing, bash the NLRB, and blame Obama.  But rather than debate retaliation against workers, conservatives want to conjure phantom menaces: bureaucrats micro-managing production, Democrats punishing “Right to Work” states, and union bosses paralyzing job creators.

Liberals Against Job Creation?

Conservatives are making four misleading arguments about the Boeing case.  The first argument is that this case is about liberals getting in the way of job creation. Pawlenty took up this line at the Republican debate in South Carolina:

 “You have this administration through the National Labor Relations Board telling a private company that they cannot relocate to South Carolina and provide jobs in this state, and they’re good-paying jobs, and they’re needed jobs…I just want to make clear the idea that the federal government can tell a private business where they can and cannot be is a whole new line that this administration has crossed and it’s outrageous.”

Who wouldn’t be against Barack Obama’s “No Jobs for South Carolina” policy? Good thing it doesn’t actually exist.

The real story begins in 1975, when Boeing workers in Puget Sound, Washington, organized with the International Alliance of Machinists (IAM) and won union recognition. Over the next 36 years, the workers went on strike five times – most recently in 2005 and 2008. In 2009, Boeing announced its intention to transfer the production of a new line of Dreamliner planes, which were expected to be built in Puget Sound, to a non-union facility in South Carolina instead. The IAM filed charges with the NLRB accusing Boeing of illegal retaliation.

After a year-long investigation, the NLRB issued a complaint, meaning it found enough merit in the charges to proceed to a trial. Most NLRB cases that reach the complaint phase are resolved with a pre-trial settlement, but there are no signs of one in the works. The NLRB based its complaint on five separate examples of Boeing managers publicly blaming strikes for the transfer of production: once in a memo to employees, once in a recording of a conference call Boeing posted on an employee website, and three times in the press. The complaint alleges that by transferring the planned expansion away from Puget Sound and repeatedly telling the workers and the public that Puget Sound would lose those jobs because of the strikes, Boeing was retaliating against the strikers and acting to discourage workers from future union activity. If Boeing did that, it broke the law.

A Threat to Every Business?

The second argument conservatives are making is that the Boeing complaint represents a bureaucratic power grab that threatens every business.  Governor Haley wrote in the Wall Street Journal that this was “an unprecedented attack on an iconic American company that is being told by the federal government—which seems to regard its authority as endless—where and how to build airplanes.”  South Carolina Senator Jim DeMint told the DC press conference that “Every business in America should see this as a personal threat.” 

The NLRB has the authority and the responsibility to investigate and rule on violations of labor law by employers or unions. It doesn’t tell anybody how to build an airplane. When Congress passed the National Labor Relations Act, it told companies they can’t threaten or retaliate against workers for being active in a union.

The only “threat” businesses should see in the NLRB decision is this: if you break the law, there’s a chance you’ll get caught, and punished. If your boss says, “I’m cutting your hours because you won’t have sex with me,” he’s broken sexual harassment law. If your boss says, “I’m cutting your hours because you’re active with the union,” he’s broken labor law. It’s retaliation, and it’s illegal - though too often bosses get away with it anyway.

Conservatives didn’t complain when the NLRB, with a Bush-appointed majority, issued rulings allowing bosses to ban even platonic “fraternization” with co-workers outside of work, or to redefine workers as “supervisors” who lack legal protections for organizing. If Haley believes the government shouldn’t have the authority to investigate or punish anti-union retaliation, she should ask the state’s congressional delegation to change the law. She could even make her new Secretary of Labor Catherine Templeton, a professional union-buster, available to testify about the virtues of her craft.

“Right to Work” Retaliation?

The third argument conservatives are making is that Obama’s NLRB is punishing South Carolina for its “Right to Work” law.  On Meet the Press, Newt Gingrich accused the NLRB of “basically breaking the law to try to punish Boeing and to threaten every right-to-work state.”  South Carolina Senator Lindsey Graham warned in a statement that “Left to their own devices, the NLRB would routinely punish right-to-work states that value and promote their pro-business climates.”

Conservatives are trying very hard to convince the public that the NLRB complaint has something to do with South Carolina being a “Right To Work” state (that is, a state that bans union contract language requiring all employees to pay for the costs of their representation). That’s a red herring.  Boeing could have transferred the production to California or Calcutta and it would equally have violated the law -- as long as it announced that it was moving production because the Washington workers kept exercising their right to strike. Conservatives are on comfortable ground railing against the feds trampling on states’ rights, and so rail they will. But they’re turning the legal question on its head: They’d rather talk about imagined government retaliation against the good people of South Carolina than all-too-real employer retaliation against workers for collective action.

Such retaliation has reached epidemic proportions in the United States. A comprehensive study of NLRB data by Cornell researcher Kate Bronfenbrenner found that in the lead-up to union recognition elections the majority (57%) of employers threatened to close the worksite. Despite being illegal, anti-union retaliation by unionized and non-unionized companies often pays off. As Human Rights Watch has observed, employers get away with it all the time. And when they do pay, it’s a pittance. The Boeing case has inflamed the Right because the potential penalty facing Boeing – resuming the production of a second line of airliners in Pugent Sound – is actually significant.

Ruled By Your Workers?

The final argument conservatives are making is that labor law enforcement will leave bosses helpless at the whims of their employees.  In a statement, Senator Graham warned that "the NLRB complaint would allow unions to hold a virtual 'veto' over business decisions."  But what Graham and company want to deny workers is not a “virtual veto,” but a voice on the job.

Lurking behind such rhetoric is a “Father Knows Best” mentality about American business: Workers should be grateful for whatever jobs and conditions the boss deigns to offer them. When Dad says he can’t pay you more without going out of business, or the health insurance has gotten too expensive, or you don’t need safety gloves, he must have a good reason. And when the kids complain too much and Dad decides to punish them for speaking up? His call.

Like Scott Walker in Wisconsin, Lindsey Graham doesn’t like that collective bargaining allows workers the chance to say “no” to their boss. For decades, Boeing managers in Puget Sound have had to sit across the table as equals with their employees. They’ve had to compromise. When they wouldn’t offer a deal their employees were willing to accept, they’ve seen workers go out on strike, and they haven’t been able to stop them. Now management has made explicit the threats that companies insinuate all the time, and politicians are rising to their defense.

Conservatives would rather scream “Don’t Tread on South Carolina” than “The Corporation is Always Right.” But beneath the talk of free choice and federalism is a campaign to intimidate the National Labor Relations Board out of enforcing the law. That will only make it easier for companies to intimidate their employees out of asserting their rights.

Josh Eidelson is a freelance writer and a union organizer based in Philadelphia.  He's written about politics and organizing as a Campus Progress contributor, a Talking Points Memo research fellow, and a Yale Daily News columnist.  He's worked as an organizer for five years since receiving his MA and BA in Political Science.  Check out his blog or follow him on Twitter.

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