House Oversight and Government Reform Committee Chairman Darrell Issa of California needs to resolve the impasse over requested Boeing documents with Lafe Solomon, the acting general counsel of the National Labor Relations Board. Congress has a right to know now whether the Boeing complaint reflects benign poor judgment or an abuse of the agency’s prosecutorial discretion. Already, we know the filing of this complaint is chilling business investment in the United States, and for good reason.
Since mid-May, Solomon has by and large stonewalled the committee’s request for pre-complaint documents relating to the Boeing complaint. After a series of unproductive letters, the committee finally issued a subpoena for the documents on Aug. 12.
Tensions mounted recently when the agency was found to have deleted certain emails from the few pre-complaint documents it provided the committee. This action demonstrates a decided lack of seriousness in responding to the congressional subpoena.
Does the acting general counsel believe his office is immune to oversight? The Supreme Court has long recognized that the power of Congress to investigate “with process to enforce it — is an essential and appropriate auxiliary to the legislative function” (McGrain v. Daugherty).
The fact that the agency is “independent” of the executive branch does not immunize it from congressional oversight; it makes legislative oversight all the more necessary.
Congress cannot wait for the courts to finally decide this complaint: The filing threatens job growth and a sustained economic recovery today. What domestic or foreign employer will want to maintain a U.S. presence or create a new one if the federal government can dictate the employer’s core entrepreneurial decisions — where to locate, relocate, transfer or outsource?
What company will continue to produce here what it sells here if it risks being captured in an unsustainable economic environment that it cannot remedy without union acquiescence?
Congress has many reasons to be concerned. The complaint is unsupported by the facts and is plainly inconsistent with the law. It seeks to eviscerate the distinction long protected by the law between a core managerial decision based on the economic consequences of unionization and a management decision based on an employer’s hostility toward its employees’ union activities.
Moreover, the circumstances surrounding the filing of the complaint were far from ordinary. According to Michael Luttig, a former federal judge and Boeing’s general counsel, Solomon told him before the complaint was filed that the NLRB should not be involved in the matter, but he asked Boeing to settle the union’s charge.
Solomon offered a settlement, and Boeing accepted it; nevertheless, Boeing was told that the settlement was no longer adequate after conversations with the union.
Then, ignoring his own good advice, Solomon’s office filed a complaint that brazenly mischaracterized the statements of Boeing’s executives and, to make a case for violating the law, described the opening of Boeing’s new production line in South Carolina as a “transfer of unit work.”
Only under the glare of public criticism did the agency backtrack and say that it was a transfer of work because it “could have been done” in Washington state.
The acting general counsel, while understandably jealous of preserving the prerogatives of his office, should respect the committee’s inquiry.
Providing a log of privileged documents followed by confidential committee staff review may limit the areas of disagreement, avert a lengthy and time-consuming legal battle, and satisfy the public and governmental interests of all concerned.
The acting general counsel should move forward and suggest this course of action. The emails released this week further undermine the agency in the eyes of the public and those it serves.
Peter Schaumber is a former chairman of the National Labor Relations Board.
