Chairman Issa's NLRB Subpoena: An Unprecedented Effort to Thwart the Legal Process

by Sidney Shapiro

August 10, 2011

The National Labor Relations Board (NLRB) has a Friday deadline to respond to a subpoena issued by House Oversight Committee Chairman Rep. Darrell Issa (R., Calif.). The subpoena seeks "[a]ll documents and communications relating to the [NLRB's] Office of General Counsel's investigation of Boeing..." prior to the time the NLRB issued its complaint against the company. The NLRB has alleged the company created a second assembly line at a nonunion plant in South Carolina to build its 787 Dreamliner in order to retaliate against union workers on Puget Sound, who had a history of conducting lawful strikes.

No one can deny that the House has a legitimate interest in conducting oversight of the Board. At the same time, House ethics rules (House Ethics Manual, p. 303) and a Fifth Circuit decision (Pillsbury Co. v. FTC) prohibit congressional oversight committees from improperly trying to influence the outcome of a case when it is pending before an agency. In Pillsbury, the FTC Commissioners were subject to a “barrage” of hostile questions and statements criticizing the FTC’s position concerning a legal issue relevant to the outcome of the pending case. This conduct violated the due process rights of the side the legislators opposed – in this case the union representing Boeing’s employees.   

Representative Issa is hounding the NLRB’s General Counsel, not the members of the Board. Nevertheless, Representative Issa has threatened to abolish the NLRB, and the subpoena constitutes an unprecedented intrusion into an agency’s enforcement efforts.   The NLRB has not been the subject of a congressional subpoena since 1940. As a group of 34 labor law professors noted in a letter to Representative Issa, the document request plus the threat “may well cross the line delineated by the courts in the Pillsbury and subsequent cases.” After all, members of the NLRB can scarcely ignore the ferocity of the Committee’s efforts to ensure a decision in favor of Boeing. 

In the American legal system, parties in a lawsuit are not entitled to see documents covered by a lawyer-client privilege (here communications between the NLRB and the General Counsel) or documents covered by a deliberative privilege (communications between the General Counsel and his staff). The Issa subpoena seeks both types of documents, an act which promises to disrupt the attempts of agencies to enforce the law. If agencies cannot rely on the confidentiality of internal communications, it will not be possible for them to function effectively as law enforcers. 

The NLRB has already turned over more than 1,000 pages of documents to the committee, and its General Counsel has testified in front on the Committee. At that time, Representative Issa agreed not to seek information from the General Counsel that would not be available to the parties in the Boeing case. He has now reneged on that agreement.

The scope of the subpoena suggests that the Issa committee is on a fishing expedition, looking for embarrassing documents that it can use to bolster the Republican’s political opposition to the case.  There is no legitimate reason for Congress to seek documents covered by the privileges mentioned earlier.   The ultimate validity of the allegations against Boeing will be determined by the Board and then by the courts. Representative Issa is free to oppose the General Counsel’s decision to bring the case, but he does not need the documents he seeks in order to do so. This is an argument about the use of prosecutorial discretion. The General Counsel had the discretion to bring the case, and the fact that Representative Issa dislikes his judgment does not make the decision illegal. 

We have rules that ensure our laws are faithfully executed. These rules establish spheres in which political conduct is acceptable and unacceptable. The Issa subpoena ignores these rules and seeks to politicize the law enforcement process at the NLRB. Even if you think the NLRB suit is a bad idea, Issa’s conduct here still isn’t justified. If everything is political, the rule of law will cease to function.

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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

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