Brudney: The Boeing Complaint in Congress: Oversight or Overreach?

The following is a guest post from Jim Brudney.

Today, an Administrative Law Judge begins hearing argument and evidence in a complaint brought against the Boeing Company under the National Labor Relations Act.  The complaint was filed less than two months ago, and the trial process is just starting. Yet, I cannot recall any case that has attracted such intense and sustained congressional attention at such an early stage.

Ten Republican senators wrote to the Board’s acting General Counsel, Lafe Solomon, suggesting that his confirmation prospects would be linked to his position on the Boeing case. Nineteen Republican senators wrote to President Obama urging him to withdraw immediately Solomon’s nomination because of the Boeing complaint. Thirty-five Republican senators have cosponsored a bill to block the Boeing case by amending the law to immunize Boeing’s allegedly unlawful conduct. Last week, a Republican senator submitted a Freedom of Information Act request that Solomon turn over all documents (including email, call logs, memoranda, or meeting notes) generated by Labor Board members or staff that were used to support the filing of the Boeing complaint.

In the House, two separate committees demanded that Solomon produce all internal agency documents addressing the Boeing complaint and all documents referring or relating in any way to the agency’s investigation of Boeing—and do so in advance of the June 14 hearing. Solomon declined these document requests. He cited the confidential nature of affidavit testimony obtained from possible witnesses and the threat to a fair litigation process if strategic litigation plans were disclosed before trial. One committee chairman expressed extreme disappointment and promised to discuss the request further with Solomon. The other chairman requested that Solomon testify at an oversight hearing three days after the ALJ trial commences, and effectively compelled him to testify by threatening him with a subpoena. Solomon is scheduled to appear “voluntarily” this Friday before Congress as the trial process unfolds without him

Why all the fuss?

The complaint alleges that Boeing unlawfully established a second assembly line of aircraft production at a nonunion plant in South Carolina in retaliation against union workers at its main Seattle plant who had engaged in lawful strikes during prior collective bargaining negotiations.  Boeing denies the allegations. It argues that its decision was motivated by lawful considerations of economic cost, not unlawful anti-union animus. A major source of concern among Republican members of Congress is part of the requested remedy: if the company’s movement of work is deemed unlawful, the government seeks an order that Boeing’s second line be produced in Seattle and not South Carolina.

The complaint invokes five separate statements made by top Boeing executives and managers, suggesting that a desire to avoid lawful union activity may well have played a part in Boeing’s decision.  Whether it was the motivating factor is what the trial and subsequent appeals are there to resolve. It will be up to the ALJ to assess the allegations and defenses, to consider the nature of the relief sought, and to decide the case on its merits. That is how our system of due process works for adjudications—or at least how it should work.

My concern here is not with the merits of the complaint but with the threat to basic fairness resulting from the avalanche of congressional pressure.

Congress has an important constitutional role to investigate executive branch activities and conduct. This broad oversight power is more limited, however, when Congress investigates a pending adjudicatory proceeding. Such a proceeding resembles a court action. When agencies conduct adjudications, they are acting similarly to federal prosecutors and judges.

Federal appellate courts have expressed concern over congressional pressure focused intensely and extensively on the decisional processes of key agency officials in a case that is pending before the agency. A leading Fifth Circuit decision invalidated an agency adjudication, holding that congressional interrogation impermissibly tainted the agency’s decisional process.

More broadly, a central premise of the Administrative Procedure Act is that agency adjudicatory decisions be made exclusively on the record presented to the judge, and that the decision be based entirely on factors specified by the governing statute—in this case the NLRA.

Congress’s own ethics rules reiterate these abiding principles. The House Ethics Manual recognizes there are judicial opinions that discourage “inordinate pressure” on officials charged with responsibility for making agency decisions. It emphasizes that “a Member should not directly or indirectly threaten reprisal” against an agency official.

In the Boeing case, Congress has engaged in a relentless month-long series of public and often high-profile attacks, directed at the acting General Counsel for prosecuting the complaint. Congress needs to take a step back. The adjudicative process will ultimately yield a decision after the facts have been presented, arguments heard, remedial options reviewed, and appeals exhausted.  Congress will be able to alter the law going forward if it disagrees with the decision reached.  That is the appropriate way for legislators to take issue with an adjudicative result—as Congress has often done in the past.

I hope that the interrogations and threats do not ultimately intimidate acting General Counsel Solomon, who is not a politician but a career civil servant.  But there is reason to fear that Congress’s ongoing course of conduct may undermine neutral analysis and chill independent judgment by any reasonably attentive ALJ hearing this case.

Ironically, if the case ends up being decided in Boeing’s favor, a reviewing court might well overturn the result.  A judge could infer that the agency decided against the government’s position in response not to the facts or legal arguments, but rather to the browbeating from both House and Senate Republicans.

For members of Congress, as for all Americans, maintaining the integrity of the government’s decision-making process should matter no less than the outcome of any particular case.

James J. Brudney

Newton D. Baker-Baker & Hostetler Chair in Law

The Ohio State University Moritz College of Law

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