WASHINGTON — The Republican-led battle against the chief federal labor agency is escalating, with the head of a key congressional oversight panel and the top lawyer for the National Labor Relations Board accusing each other of flouting constitutional and legal constraints.
The fight is ostensibly over the NLRB's bid to prevent Boeing from opening a jet-manufacturing plant in South Carolina. But GOP lawmakers are portraying it as Exhibit A in their case against President Barack Obama's alleged regulatory overreach.
The dispute began in April when NLRB acting general counsel Lafe Solomon said there was potential merit in a complaint by Boeing's main union that the aerospace giant built the North Charleston, S.C., factory in retaliation for past strikes at its large plant in Everett, Wash., near Seattle.
Boeing says it decided to make 787 Dreamliner planes in South Carolina, a right-to-work state, because of legally protected business factors.
Among the factors Boeing cites are the South Carolina state government's granting of $900 million in tax breaks, and concerns over delays in completing deliveries to airlines around the world that have ordered more than 800 of the next-generation aircraft.
The dispute is now before NLRB administrative law judge Clifford Anderson. In June he rejected Boeing's motion to dismiss it and is hearing evidence from the Chicago-based firm and the International Association of Machinists and Aerospace Workers.
Solomon and Rep. Darrell Issa, a California Republican who chairs the House Oversight and Government Reform Committee, are clashing over the NLRB lawyer's refusal to provide thousands of pages of documents to the panel.
Even given the acid partisan discourse in Washington, Solomon and Issa traded extraordinarily pointed barbs in a recent exchange of letters.
Issa threatened to try to revoke Solomon's law license over his rejection of the oversight panel's Aug. 5 subpoena of internal agency memos related to the Boeing case.
"Your implication that a preliminary ruling by an administrative law judge working for an agency that was created by Congress in any way weakens the investigatory powers of this body is absurd," Issa told Solomon in a letter Wednesday.
"Frankly, such blatant defiance continues to heighten the appearance that you have something to hide, or that you are simply choosing to delay and obstruct this committee's oversight," Issa wrote.
In a letter responding to the subpoena, Solomon said his staff had given the committee 5,800 pages of documents, but providing more materials would compromise the court proceeding in Seattle.
"We continue to be gravely concerned about the adverse effect any premature release of certain documents subject to the subpoena would have on the rights of the parties to this case to have a fair trial," Solomon wrote.
Solomon said the committee's quest for sensitive materials also threatens the constitutional independence of the NLRB and other executive agencies to operate free from unwarranted congressional interference.
"The subpoena's demand for confidential documents from our ongoing law-enforcement proceeding raises substantial separation of powers concerns because it threatens to seriously impair the (NLRB's) ability to perform its function of executing the law," Solomon wrote.
Rep. Tim Scott, a North Charleston Republican whose coastal district is home to the new Boeing plant, said Issa is responding appropriately to the labor agency's effort to block the factory.
"Chairman Issa is well within his rights to demand that before the NLRB is allowed to kill thousands of jobs in South Carolina, they at least provide the necessary documentation," Scott said. "The NLRB needs to stop making excuses to try and protect their misguided actions from scrutiny, and instead let the private sector do what it does best — create jobs and drive our economy forward."
Stephen Gillers, a New York University law professor, said Congress has broad subpoena powers that normally trump statutory protections in civil court cases.
"The way this has been dealt with in the past is by Congress pulling back and tolerating claims of (legal) privilege while asserting that it doesn't have to," Gillers said.
"Congress has no obligation to recognize the claim of attorney-client privilege or work-product protection," he said. "When it has accepted these privilege claims, it has done so out of respect."
Stanford University law professor Michael McConnell, a former federal appellate judge, also said that Solomon might face a high legal hurdle in trying not to comply fully with the subpoena.
"I would have to know more about what is being subpoenaed and what the claim of privilege is," McConnell said. "But I would be surprised if there were any pertinent claim of privilege. This is a civil and administrative matter, where there are broad rules of public access and discovery."
Gillers said Solomon's separate claim that executive agencies must be able to operate without undue congressional meddling "is probably his strongest argument," because it's based on the Constitution's principle that the three branches of government hold separate powers.
Issa also raised separation-of-powers concerns, saying that Solomon's partial rejection of the subpoena impairs Congress' oversight of the executive branch.
Gillers said it would likely be up to a federal judge to decide the scope of congressional subpoena powers and the ability of a federal agency to evade them.
Whichever way Anderson rules, the broader case could take a year or longer to resolve, as it goes before the full NLRB and then moves on appeal through the federal courts.
Boeing opened the North Charleston plant last month and has vowed to start making Dreamliners there in the fall. Judges have been reluctant in similar disputes to issue injunctions stopping the manufacture of products, according to legal scholars.
Republicans allied with the U.S. Chamber of Commerce and other business groups are trying to short-circuit the legal process by accusing Obama of pandering to his union backers and targeting his choices as NLRB board members.
The GOP lawmakers have targeted Obama's choices to serve on the NLRB board as well as Solomon, its top lawyer, who is serving in an acting capacity because Republican senators would block his confirmation.
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