Abuse of Power: Congressman Issa’s Attacks on the National Labor Relations Board

In a truly unprecedented attack on federal law enforcement, agents at the National Labor Relations Board (NLRB), California Rep. Darrell Issa and his Republican allies in the House of Representatives are doing the bidding of corporate elites in an effort to suppress the collective bargaining rights of private-sector workers.

In June of this year, the NLRB commenced an enforcement action against Boeing based on a claim by IAM District 751, part of the International Association of Machinists & Aerospace Workers, that Boeing broke worker protection laws when it told its unionized workers in Everett, Washington, it would transfer airplane assembly to its newly nonunion facility in Charleston, South Carolina, due to their past and possible future union activity.

The complaint alleges that Boeing's motive for the transfer of work – to escape and suppress lawful, concerted activity of its workers – was unlawful and violated the National Labor Relations Act (NLRA). The complaint relies upon videotaped statements and statements in public shareholder conferences in which Boeing's top executives admitted that the “overriding factor” for the decision to transfer the work was the past and possible future strike activity of its workforce.

Although the case against Boeing is merely one in a line of many so-called “runaway shop” cases, union haters like Issa smell the opportunity to eliminate bargaining power for workers in the private sector. That's no surprise. But why now; why the NLRB; why this case?

What is red meat to the far right about this case is the remedy the Board seeks against Boeing. Enforcement of the NLRA can sometimes merely result in a posting of a notice by a company that has broken the law. The notice must be posted prominently to the workforce and, now, must be emailed as well. The notice announces that the company has broken the law and has it promise not to do it again.

But, sometimes, the Board uses its power to demand a remedy from employers that really changes things. It can order an employer not just to post a notice, but to put things back to the way they were before the unlawful act was committed. In legal speak, this is an order to restore the “status quo ante.” After the Board issues this type of order, it can be enforced in federal court.

Here, the status quo ante would require Boeing to halt its unlawful transfer of work from Everett to Charleston.

This kind of remedy hurts a corporation that has violated the law, because that corporation has to genuinely undo the damage it has caused and give up the benefit it wrongfully obtained. It's not a problem that can be finessed merely by throwing more money and lawyers at it. The pain will only stop if the corporation complies with the law.

Unless, of course, you can subvert the judicial process itself, which is precisely what Representative Issa and others are trying to do. After the NLRB announcement, Boeing and its political allies brought a personal attack on the NLRB acting general counsel, the official who conducted the investigation, challenging the legitimacy of his appointment (by President Obama) to that job. They threatened funding for the entire federal agency, with Republican proposals ranging from cutting funding by $50 million (a mere 18 percent reduction) to defunding the agency entirely, a proposal which received 176 votes on the floor of the House. They have threatened to block any new appointments to the Board that oversees the NLRB. And they have attempted to change the underlying law itself, introducing legislation to forbid any enforcement similar to the case with Boeing.

Most recently, Representative Issa has demanded that the NLRB turn over internal documents related to its prosecution of Boeing. He helped orchestrate a public cross-examination of the Board's top lawyer in an effort to force him to expose his legal theory to Boeing. He has even threatened to hold the staff attorneys at the Board in contempt of Congress if they do not publicly reveal that strategy, warning of “severe consequences” which will follow if the attorneys at the Board do not bend to his will, including bringing the lawyers “to the attention of your licensing bar associations.”

Progressives have long complained that the NLRB is an ineffective agency, unable or unwilling to force corporations to comply with the already modest requirements imposed on them by federal labor law. Corporations and their shills have disputed those complaints, but more with a wink and a nod than any real vigor; the existing situation suits them just fine. But when the lawyers at the NLRB make a serious effort to enforce the law by requiring a corporate giant to remedy its unlawful behavior, the counterattack is one of unparalleled intensity.

The steps being taken by Representative Issa and his colleagues constitute abuse of power of the worst kind. Those actions have occurred because there is something real at stake in the NLRB's action against Boeing: real justice for the workers whose rights have been violated and the promise of similar justice for other workers in the future. For the sake of these workers, we must collectively expose these outrageous attacks on the NLRB for the abuse of power that they are and ensure that attempts to undermine the agency – no matter the source – are thwarted. Working people in this country deserve nothing less.