NLRB: Judge’s ruling supports withholding Boeing case documents

by Keith Laing, The Hill Newspaper
07/27/11

The National Labor Relations Board said this week that a Seattle judge’s ruling that its case against airplane manufacturer Boeing should go forward supported its contention that documents about the issue should be made available to a congressional oversight committee only as they come out in the case.

Administrative Law Judge Clifford Anderson rejected a motion from Boeing last month to dismiss the NLRB case, which alleges that the company decided to build a plant in South Carolina to retaliate for labor strikes at its existing facilities in Washington state.

House Oversight Committee Chairman Rep. Darrell Issa (R-Calif.) has launched an investigation into the case, saying it appears to be politically motivated. Issa has threatened to subpoena documents about the case, but the NLRB has said it would provide only “discoverable” information.

In a letter to Issa that was obtained by The Hill, NLRB Acting General Counsel Lafe Solomon said Anderson’s ruling showed the panel’s stance was correct.

“It remains my belief that premature disclosure of the Boeing case file would severely impact the parties’ due process rights and the Agency’s legal process,” he wrote to Issa in a letter dated Tuesday.

“You have asserted that these concerns are overcome by the Committee’s need to assess the claims made by Boeing that the complaint issued against it is legally frivolous,'” he continued. “Indeed, Boeing, in its Motion to Dismiss, contended to Administrative Law Judge Clifford Anderson that the complain was legally frivolous. Administrative Law Judge Anderson has denied that motion, thus supporting my position that the Boeing complain has legal merit.”

Solomon said he was not refusing to cooperate with Issa’s committee’s investigation. He just could only provide documents as the ongoing case moved along, he said.

“To be clear, allowing us to produce documents to the committee consistent with your June 17 ruling does not mean the committee will not have access to the documents it seeks,” he wrote. “Rather, it means that the committee will have access to the requested information contemporaneously with its availability to the parities in the pending litigation.”

In a July 12 letter to Solomon, Issa argued there was “no legal authority to support your position that the transmission of documents or information to this committee violates these rights.”

“In order to fulfill the committee’s constitutional obligations to conduct oversight to determine whether the NLRB is properly carrying out its mandate under the [National Labor Relations Act] and, in turn, using taxpayer dollars appropriately, the committee needs all the documents requested,” Issa wrote.Solomon disagreed, writing “the issuance of a subpoena in an attempt to obtain the request documents of an often and ongoing enforcement proceeding would severely undermine the integrity of the ongoing legal proceeding and cause serious damage to the due process rights of the parties to that proceeding.”

Democrats on Issa’s committee called this week for him to hold a vote before issuing subpoenas for the NLRB documents.

A spokesman for the Issa did not mention the Democrat’s request, but he maintained the possibility that Issa would issue subpoenas.

“Every day the NLRB delays in providing information to Congress is a day that jobs in South Carolina are in jeopardy and when job creators will wonder if they will be free to respond to market needs or beholden to the will of unelected bureaucrats,” Oversight Committee spokesman Jeffrey Solsby said in a statement

“Chairman Issa takes seriously NLRB’s obligation to respond to the Committee and is reviewing this latest letter and considering all options including compulsory processes,” Solsby continued. “The fundamental question in this case remains unanswered: what triggered NLRB’s decisions to file suit and what are the potential impacts on businesses around the country.”

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