Trial By Fire

By Charles S. Clark

December 1, 2011

The National Labor Relations Board strives to remain neutral while adjudicating cases in a political pressure cooker.

The work is not always pleasant at a so-called rogue agency. Ask any of the 1,600 employees at the National Labor Relations Board, where life has not been the same since the agency landed in the middle of a dispute between the International Association of Machinists and Aerospace Workers and Boeing Co.

For an independent agency accustomed to a bit of political scrutiny, this is a whole new intensity. In March, the union filed an unfair labor practices case against Boeing after the company announced plans to move one of its operations from Washington state to South Carolina. Labor backers want to stop the move because they say it will take hundreds of jobs out of state, while conservatives defend Boeing's desire to seek efficiency and create new jobs.

The resulting rhetorical vitriol against NLRB has scarcely let up. Some Republican lawmakers blasted the board for infringing on the rights of nonunionized workers if it blocks the Boeing move. Add to that a congressional subpoena demanding that NLRB release thousands of documents relating to the case, looming budget cuts for the board and vacancies that aren't likely to be filled in the current political climate. It's not just another day at the office.

"We've been an object of dispute throughout our history, so to some extent we're used to this," says Jonathan Ross, an NLRB senior counsel who retired in September. "But this is a particularly stressful period, and no one anticipated Republicans would make this Boeing case so high profile and make us a piƱata."

It was House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif., who issued the far-reaching subpoena in August. He sent a letter to NLRB acting General Counsel Lafe Solomon calling the board a "rogue agency acting improperly" for not turning over all documents Republicans believe might contain evidence of anti-corporate policies. Also railing against NLRB is the legal research group Judicial Watch, which has filed a Freedom of Information Act request related to the case.

Nancy Cleeland, NLRB's director of public affairs, says 20 agency staffers are working on the case and as of late October had already spent more than 1,500 staff-hours poring through 150,000 internal documents and emails that contain key words specified in the subpoena. They have to "make sure no information released would damage due process rights of any parties to the case," she says.

Media coverage involving the board has exploded from an average of 100 stories a month in 2009 to 2,000 a month since the Boeing case broke.

Morale is not unaffected. Attorney Kayce Compton, president of the NLRB Professional Association, says, "Attorneys are concerned when they see in-accuracies about the work we do from people who aren't experienced labor lawyers but who make judgments about ongoing litigation." She argues the "laws we enforce are neutral by nature, and the agency is neutral. People here take pride in that fact."

Inaccuracies in the debate, according to Ross, include the misperception that NLRB brought the original case, though it was the machinists' union. The board's general counsel later issued the complaint. Some believe that the board is deciding the case when it's actually one of NLRB's 40 administrative law judges. Others think the case is focused on South Carolina's status as a right-to-work state, but the issue is Boeing's plan to take a production line out of Puget Sound, allegedly to avoid strikes.

Created under the 1935 National Labor Relations Act, the independent NLRB consists of a five-member board and a powerful general counsel, all requiring nomination by the president and Senate confirmation. "One purpose of the statute is to promote collective bargaining," Ross says, "and because unions are seen as aligned with Democrats, it means our issues are seen through a political lens."

Washington's political stalemate has meant the board operated in recent years with three vacancies, and a U.S. Supreme Court ruling in 2009 nullified decisions made by only two sitting members.

"The staff is career people who work for both Republicans and Democrats," Ross says. "You have to write decisions that may not align with your personal or political views, but you do what you have to do."

Funding, which supports mostly staffing and rent at 32 regional offices, is endangered. In February, 176 House Republicans voted unsuccessfully to zero out the agency's budget. Also looming is the expiration of a recess appointment on the board in January 2012. The departure of board member Craig Becker would again reduce the panel to an inoperable two members.

It was this kind of political hardball that prompted NLRB Chairwoman Wilma Liebman to depart in September without seeking reappointment. Days later it was Ross' turn. "I might not have retired at this time," he says, "if the prospects for the NLRB, and for federal employees generally, were not so discouraging."


By Charles S. Clark

December 1, 2011

http://www.govexec.com/magazine/briefing/2011/12/trial-by-fire/35517/