What would an average person — liberal or conservative — say if members of Congress attacked a U.S. attorney for simply enforcing the law of the land in court against a powerful criminal suspect? And how would he or she react if those same politicians then threatened the government prosecutor with loss of his job?
What if they demanded as well that the attorney should both testify at a committee hearing and produce all documents and communications that were part of preparing the case before it was heard? And finally, if they cut off funds for the branch of government pursuing the case and introduced new legislation that would legalize the suspect’s alleged lawbreaking activities, thus increasing the risk of great loss of both legal rights and financial well-being for the majority of Americans?
Even in our cynical times, most people would feel outraged, thinking, “How could members of Congress use their political and governmental power to try to influence a case pending before court?” Their actions would distort and diminish prospects for justice and judicial independence. Their demands would require the lawyer to violate professional ethics. What abuse of power.
But that’s what Republican members of Congress have essentially been doing for the past two months, as they tried to intimidate National Labor Relations Board (NLRB) general counsel Lafe Solomon, the chief attorney for the independent agency primarily responsible for enforcing federal labor law.
They hoped to stop him from pursuing a complaint that Boeing Corporation violated a longstanding prohibition on retaliating against workers for exercising their rights — in this case, for striking over contract renewal disputes — by re-locating investments and jobs.
That’s the view not just of average citizens but of two law professors associated with the progressive American Constitution Society for Law and Policy, speaking at a press teleconference last week.
Today (Tuesday), Solomon presents a complaint that the NLRB issued in April before an administrative law judge in the equivalent of a court proceeding. After months of fact-finding, review of the law and discussions attempting to reach a settlement, Solomon concluded that there was sufficient evidence that Boeing violated the law (as reported by Mike Elk for Working In These Times in April). That included repeated, clear statements that the company was constructing the just-opened new Dreamliner factory in South Carolina rather than in Washington state because of union workers’ history of striking over contract disputes.
“There’s nothing particularly extraordinary about this case in legal principles at stake,” says Catherine Fisk, Chancellor’s Professor of Law at the University of California, Irvine School of Law and author of Labor Law in the Contemporary Workplace.
The precedent was established in the 1950s, but it seems that it has been applied mainly in cases of smaller firms. They may not have had lawyers advising them on how to avoid blatant violation of the law by openly talking about making plant location and investment decisions designed to thwart worker rights. And in practice, since companies can move for other reasons, such as seeking lower costs or better workers, it is always possible for companies to have — or pretend to have — multiple motives.
An NLRB complaint generally must show the predominant motive was obstructing workers’ legal rights in order for a judge to sustain it, Fisk says. And that’s why the issue will be presented to an administrative law judge tomorrow.
What’s different in this case is partly that Boeing is a very big company, and its managers were on record with damning comments. But what’s most extraordinary is how Republican politicians in Congress as well as South Carolina and on the presidential primary campaign trail have tried to stop the normal workings of the legal system. And as part of that, they have consistently misrepresented what the case involves, asserting wrongly that it is somehow a move to stop investment in right-to-work states or to control how and where companies invest.
Congress does have an important role exercising oversight of the administrative branch, says James J. Brudney, Newton D. Baker-Baker & Hostetler Chair in Law at Ohio State University Moritz School of Law. But that power is limited and does not involve interfering in court cases. From April on, Brudney says, there has been a “relentless series of public and often high-profile attacks” on the NLRB and Solomon for pursuing the Boeing complaint. There is “every reason to fear” those attacks create a chilling effect on the case, he says.
And as a lawyer, Brudney says, he would not comply with the subpoena of documents and testimony before committees on grounds that such compliance would violate legal ethics and the privileged attorney-client relationship.
But the very day the NLRB issued the complaint, Sen. Jim DeMint (R‑S.C.) set the tone of future attack, calling it a “political favor for the unions” supporting the president’s re-election. In a lengthy summary of subsequent political interventions, the Bureau of National Affairs’ “Daily Labor Report” noted harsh, misleading and inflammatory criticism from attorneys general in nine right-to-work states and South Carolina Republican Gov. Nikki Haley (calling the complaint “economic warfare on behalf of the unions”).
Ten Republican Senators from the Health, Education, Labor and Pensions committee warned Solomon — while noting his appointment had not yet been approved — that “we will be asking for a greater explanation of your actions” when his nomination came before the committee. Sen. Lindsay Graham (R‑S.C.) called on President Obama to withdraw Solomon’s nomination. Other Republicans threatened to cut off funding to the NLRB.
Two Republican senators requested all communications and documents related to the case between the NLRB national and regional offices, a request echoed by Rep. Darrell Issa (R‑Calif.), chair of the House Committee on Oversight and Government Reform, who threatened Solomon with a subpoena if he did not testify. After at first declining to testify, Solomon agreed, while raising objections:
I am not aware of any other time in history of the Office of the General Counsel that a General Counsel has been compelled to testify at a Congressional hearing about the merits of a pending case. I continue to have serious concerns about a personal appearance at this hearing and the potential impact that certain areas of inquiry may have on the due process rights of litigants and on the interest of protecting the legal integrity of the decision making process.
Sen. Lamar Alexander (R‑Tenn.) introduced an amendment of the National Labor Relations Act in response to the Boeing complaint restricting the Board’s power to influence investment decisions, even if employers expressed any opinion about worker rights short of a clear “threat of reprisal or force or promise of benefit.”
If they can’t succeed with bullying and intimidation to stop enforcement of the law on behalf of workers, Republicans are inclined simply to change the law to further expand employers’ power and diminish the limited rights American workers enjoy.
David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy.