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Battle between NLRB and the House heats up

August 11th, 2011  |  Matt Pavich

On Monday, August 8, Lafe Solomon, the Acting General Counsel of the NLRB, announced that the House Government Reform and Oversight Committee had issued a “broad” subpoena compelling production of all NLRB documents related to the Boeing case. The move is the culmination of three months of correspondence and contention between the Committee and the NLRB Office of General Counsel. The Committee has given the Board until 12:00 p.m. August 12 to produce the documents.

Solomon said that the subpoena is the first time since 1940 that the Board has been the subject of a Congressional subpoena. Calling himself “disappointed and surprised” by the subpoena, Solomon insisted that he and his staff have “diligently tried to satisfy the Committee’s desire for information while also preserving the integrity of our process and the rights of the parties in a case being actively litigated.” Solomon reiterated his belief that a solution to the crisis is possible, one that would not require production of the documents.

Since the Committee and its Chairman, Darrell Issa (R-Calif), began to threaten use of a subpoena, Solomon said, the Board has turned over more than 1,000 pages explaining the legal theories of the complaint against Boeing, court transcripts and rulings and motions. According to Solomon, he has informed the Committee that, at no time, has there been communications from the White House regarding the case, nor have there been communications between the Board and the General Counsel’s office.

Furthermore, although Solomon said that his office will turn over “any of the remaining documents sought by the Committee” as the trial proceeds, Solomon continues to refuse to turn over documents before they are entered into the court record. Solomon has stated that premature disclosure of those documents could potentially interfere with the fairness of the trial and any possible settlement negotiations. Solomon is also concerned about creating future precedent.

Issa, in a statement also released on August 8, argued that it was not his subpoena, but the complaint itself that is unprecedented. As he has throughout the process, Issa contends that the complaint “has the potential to create a job-killing precedent just as U.S. manufacturers are working toward economic recovery.”

The subpoena battle is only one of two major battles that the NLRB is waging with the congressional committees that oversee it. The House Committee on Education and the Workforce, chaired by Representative John Kline (R-Minn), has condemned the Board in increasingly dark terms, both for its handling of the Boeing matter and for its decision to revamp its election rules. The Board, for its part, seems content to fight the headwinds.

As well it should. For all the posturing regarding the Board and it recent actions, one thing is indisputable. The Board is a part of the executive branch and, as such, it was always going to reflect the view of the person heading that branch. Once pro-labor legislation met its demise in Congress, it was almost guaranteed that the Obama Administration would seek to accomplish at least some of its goals through the regulatory process. It’s part of the way that Washington works. What is truly unprecedented, with all due respect to Chairman Issa, is the vituperative nature of the attacks against the Board. And the Republicans who are attacking the Board shouldn’t be surprised if their ideological counterparts are attacked for doing their jobs in stark and uncompromising terms. After all, they’ve paved the way for it.