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On Monday, House Oversight and Government Reform Committee Chairman Darrell Issa (R‑CA) issued a subpoena to both the National Labor Relations Board (NLRB) and its Acting General Counsel Lafe Solomon for all internal documents related to the NLRB’s Boeing Case. Previously, Solomon had refused to hand over internal deliberative notes related to the prosecution of the case.
“President Obama and both Democratic and Republican Members of Congress have questioned the wisdom behind NLRB’s actions against Boeing. As this matter could take years to resolve and create even more crippling uncertainty for job creators, it is imperative that Congress get complete facts about NLRB’s rationale and its decision making process in this matter without further delay,” said Chairman Issa in a statement.
By subpoenaing the NLRB and NLRB General Counsel’s office, Issa is attempting to force the NLRB to turn over internal documents. If the NLRB or General Counsel office refuses to comply with the subpoena, Issa could press contempt of Congress charges against the heads of either office.
It is unclear how the NLRB and NLRB General Counsel’s office will respond to this request. In a statement released by the NLRB, Acting General Counsel Lafe Solomon said:
“To the best of my knowledge, this is the first time since 1940 that the National Labor Relations Board has been the subject of a Congressional subpoena. I am disappointed and surprised by this development. For months, my staff and I 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. I continue to believe that a solution is possible, and will work with the committee in the days and weeks ahead to find a reasonable and responsible balance.”
For now, it appears that Solomon will not be complying with the full subpoena request as he attempts to work out some sort of compromise solution to Issa’s request for documents. The showdown over the documents is sure to create a political crisis, as the legal integrity of the NLRB process is being questioned by Issa’s requests.
House Education and Workforce Ranking Member George Miller (D‑CA) was quick to respond, saying: “Coming in the middle of a trial, this subpoena would unfairly force one side – the prosecution – to disclose its internal trial strategy to the other side. It uses congressional levers to obtain from the prosecution certain documents to which a judge has already ruled the other party is not entitled. Its broad scope, covering documents held by the Acting General Counsel or the NLRB itself, risks chilling not only the prosecution’s deliberations but the judge’s deliberations about the ongoing case.”
Indeed last week, thirty-four law professors wrote to Chairman Issa urging him not to issue a subpoena to NLRB because it would hurt the ability of the agency to “do its job without undue interference.” Solomon may resist the subpoenaing and fight Issa’s request in court, because the precedent set by subpoenaing the NLRB could severely disrupt its ability to enforce and prosecute violations of workers’ rights.
The ongoing drama about Issa’s requests of internal NLRB documents will surely escalate the Boeing Case politically and attract attention from critics of the NLRB. Congressman George Miller sees the attack on the agency as “troubling” and aimed at undermining the legal ability of the NLRB to enforce workers’ rights.
“The subpoena issued over the weekend by Chairman Issa threatens the integrity of an ongoing trial and the constitutional due process rights of the private parties involved in that trial. It ignores pleas from members of Congress and legal experts to be mindful of the line between proper oversight of an agency and improper interference with its proceedings,” says Miller. “It is issued in the midst of troubling Republican attacks on the National Labor Relations Board and the workers’ rights that it enforces.”
The subpoena request from Chairman Issa is one of the most high profile showdowns Congress has ever had with the National Labor Relations Board’s ability to enforce workers ‘rights. How this ongoing drama will play out will determine the future of the NLRB’s ability to protect those rights going forward.
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