The GOP's war on the NLRB isn't just about airplanes and unions.

The law, lawyers, and the court.
Aug. 11 2011 4:43 PM

Dues Process

The GOP's war on the NLRB isn't just about airplanes and unions.

Darrell Issa. Click image to expand.
Darrell Issa

There's a fine line between congressional oversight and congressional overreach, but I think it's safe to say that Rep. Darrell Issa, R-Calif., chairman of the House Committee on Oversight and Government Reform, has well and truly crossed it. His crusade against the National Labor Relations Board —a crusade that puts basic tenets of due process, judicial independence, and workers' rights at risk—makes sense only if you are a subscriber to the nihilist worldview that virtually all government agencies are corrupt, socialist minions of Obama.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Certainly, I can appreciate the charms of such a tidy and unifying theory of national government. But in this case, as well as in most others, it's a recipe for disaster for real Americans with real lives to think about.

Many liberals have not yet fully tuned in to the NLRB fight, but it's a critically important marker for where the GOP House is headed. And ultimately, it differs only in kind, but not degree, from the U.S. attorneys scandal of 2006—the one where officials in the White House and Justice Department conspired to fire a clutch of U.S. attorneys who weren't finding evidence of the sorts of crimes the Bush White House wanted to see prosecuted. The Republican war on the NLRB is really no different. Whether you like the agency or hate it, swoon for organized labor or dream only of crushing it, is immaterial. We don't close down entire government agencies by congressional subpoena, and we don't block administrative judges from doing their jobs because we don't feel like waiting around for the legal process to be completed.

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An independent federal agency tasked by statute with adjudicating private-sector labor disputes isn't some trivial government trinket. Created by the National Labor Relations Act in 1935, the NLRB exists to protect the rights of workers through an elaborate statutory mechanism that has been hobbled by extreme ideology for years. But this incarnation of the fight is new. In the middle of a trial over Boeing's decision to relocate facilities from Washington state to South Carolina, Rep. Issa has seemingly decided to bring the entire agency down. As Harold Meyerson argued this winter, the fight over the continued existence of the NLRB may not be quite as sexy as Scott Walker's union-busting activities in Wisconsin, but it's just as consequential. As Meyerson explained, this project has less to do with jobs for South Carolina than with running off Democratic voters: "Unions remain the most effective part of the Democratic coalition in turning out minority voters come election time and in getting working-class whites to vote Democratic. As such, they are the linchpin of progressive change in America. Taking them off the political map isn't about budgets. It's about removing a check on right-wing and business power in America."

The complaint filed by the NLRB contends that Boeing moved some of its operations from union-friendly Washington to "right to work" South Carolina. (In right-to-work states, workers cannot be required as a condition of employment to pay dues or fees to a union, even though the union provides services to all the workers in the form of negotiating and administering a collective-bargaining agreement.) The claim here was that operations were moved to retaliate for strikes by Washington state workers. It's a tough claim to prove, but it's not an outlandish one by any means. As the NLRB points out here, there is ample precedent for the argument that threatening to move facilities because of strikes is illegal under the National Labor Relations Act. And certainly the NLRB might reasonably have taken a Boeing executive at his word when he told the Seattle Times (on video!) that this was precisely what motivated the relocation.

The Boeing case is currently in the middle of a judicial proceeding—a centuries-old forum for sorting through facts in order to determine, through a reasoned adversarial process, what happened. And that's what makes Issa's assault on the NLRB an attack not only on unions but on due process and the rule of law. As Professor Catherine Fisk at the University of California-Irvine School of Law explains, "If Congress got involved in an SEC investigation of, say, Enron, while the case was still pending, people would have been outraged."

But there seems to be little outrage forthcoming from those who have either written off the reasoned adversarial process altogether or who see the demise of the NLRB as a useful move in the larger attempt to torch the entire federal government. Issa has made no secret of the fact that he would merrily close down the NLRB if it doesn't run its independent agency his way. He's hardly alone. In February, congressional Republicans tried to pass an amendment to defund the NLRB. (They ended up merely slashing the budget.) Then in May, Sen. Lindsey Graham, R-S.C., put forward legislation to defund the Boeing complaint. That makes about as much sense as putting forward a bill to defund Citizens United.

What has Issa been doing in the name of "oversight"? Well, this past week he issued a congressional subpoena for all the NLRB documents related to the Boeing matter—while the matter is still pending before an administrative law judge in Seattle. For those who believe the NLRB is comprised solely of beings hatched and raised in secret underground labs by the Obama family in order to foment worldwide socialism, this is good news. Mumble, mumble, "job-killing," mumble and such. But as 34 labor and legal experts pointed out in a letter sent to Issa last month, this unprecedented demand for "[a]ll documents and communications relating to the [NLRB's] Office of General Counsel's investigation of Boeing" imperils not only an ongoing case but also the functioning of the NLRB in the future. As the professors warn, oversight is clearly important, but "other congressional committees routinely manage to carry out their oversight functions without intruding into active cases." The administrative law judge overseeing the case recently denied Boeing's request for just such material. Why should Congress gain access to privileged material for only one side of the case?

The NLRB's Acting General Counsel Lafe Solomon noted how completely unheard of it is for congressional oversight to scuttle an ongoing judicial process, indicating in a statement that "[t]o 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." The subpoena requires that Solomon turn over all requested materials by noon this Friday. He cannot comply without violating all sorts of work-product and attorney-client privilege rules. When he fails to do what he cannot by law do, he will presumably be in contempt of Congress. So it's not just the rule of law and law enforcement that are imperiled by Issa's subpoena-happy meddling. It's legal ethics as well.

If Congress doesn't like what the NLRB is doing in the Boeing case, it has remedies. But it cannot determine—in advance of a quasi-judicial proceeding—that the NLRB has done something wrong merely by bringing a complaint against a business it's grown rather fond of. It's clear that congressional Republicans stand to lose nothing and to gain a good deal by going after unions. But imagine the bloodletting if congressional Democrats had gone after the SEC or the EPA because they didn't approve of a single administrative decision. It hardly bears repeating that a government agency that can be papered to death, defunded completely, or shut down by a handful of pro-business hecklers is not a government agency that can function. And I am well aware that this is the endgame here. Democrats should not let this happen without a colossal fight.