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Working In These Times

Friday, Jul 22, 2011, 12:22 pm

NLRB General Counsel Defiant, as Subpoena Showdown Looms

BY Mike Elk

House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) talks to reporters after leaving a July 15 House GOP conference meeting July 15 at the U.S. Capitol.   (Photo by Chip Somodevilla/Getty Images)

On Thursday, a House committee voted 23-16 to strip the National Labor Relations Board (NLRB) of its legal standing to punish Boeing Corp. for retaliating against Washington state workers' strike activity. As I've reported, the federal agency alleges Boeing transferred a line of production of the 787 Dreamliner aircraft from Washington to South Carolina in response to members of the International Associations of Machinists (IAM) going on strike in 2008.

So the House Committee on Education and the Workforce approved the "Protecting Jobs From Government Interference Act," which would amend the National Labor Relations Act by prohibiting the government from "ordering any employer to relocate, shut down, or transfer a business under any circumstance." “No government board should have the authority to tell a private employer where it can run a business,” said John Kline (R-Minn.), the committee's chairman. Democrats criticized the change, saying it would hurt workers' rights.

The legislation to stop the Boeing case from proceeding follows Republican threats to defund the NLRB if it continued the action. Earlier this week, NLRB General Counsel Lafe Solomon told In These Times: "I will not withdraw the complaint in the Boeing case even if Congress threatens to defund the NLRB."

But the real showdown between the NLRB and GOP members of the House has to do with a document request made by House Oversight Committee Chairman Darrell Issa (R-Calif.). In May, Issa asked Solomon to hand over all NLRB’s documents, internal memos and investigation notes relating to the Boeing case. The NLRB handed over some of its documents in the Boeing case, but not all.

Issa has made repeated requests for the documents the NLRB will not hand over. Solomon wrote to Issa on May 27, saying that he would not hand over “confidential and privileged information, internal deliberative materials, attorney work product, and settlement communications."

IAM leaders see the request for internal deliberative documents from the NLRB as  a breach of separation of powers, and not required by the law. “From our perspective, if a federal judge has already ruled that the NLRB does not have to provide these documents, who is Darrell Issa to say he gets to have them?" said IAM District 751 spokesman Bryan Corliss.

In a letter to Solomon on July 12, Issa threatened that “If the entirety of the documents requested are not received by 5:00 p.m. on July 26, 2011, the Committee will be required to consider the use of the compulsory process."  The “compulsory process” means subpoenaeing the documents. 

If that happens, it's unclear what would follow.

"We have until the 26th to decide if and what documents we are going to hand over," said NLRB spokeswoman Nancy Cleeland. "In the past, we have resisted handing over our documents and have only given Congress some of our documents."

If the NLRB General Counsel’s office refuses to hand over documents to the Issa, he could then move to charge Solomon with contempt of Congress.

Republicans may be hoping to do just that to create a political crisis for the NLRB and White House—Solomon would become the first Obama administration official charged with contempt of Congress. As high noon creeps closer, all eyes are on Issa and Solomon to see how this showdown between the executive and legislative branches—and different conceptions of workers' rights—will end.

Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times. He can be reached at mike@inthesetimes.com.

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