Administrative law

  • August 15, 2011

    by Nicole Flatow

    Earlier this month, a group of 34 legal and labor policy experts urged Rep. Darrell Issa not to intervene any further in an ongoing legal proceeding on whether Boeing violated federal labor law, warning that subpoenaing documents from an active case would threaten the independence of the National Labor Relations Board.

    “We believe that this document request, combined with recent statements noting the desire to possibly ‘eliminate the NLRB,’  may well cross the line delineated by the courts,” they cautioned in a letter.

    But Issa’s House Oversight and Government Reform Committee went forward with a sweeping subpoena anyway, requiring the NLRB to submit all documents related to the Boeing case by this Friday.

    Now, several House Democrats have sent their own letter accusing Issa of overstepping his bounds to serve corporate interests, and calling on him to drop the subpoena, The Huffington Post reports.

  • August 2, 2011

    by Jeremy Leaming

    A group of law professors and labor experts are bringing more attention to the ongoing efforts of House Republicans, and right-wing activists, to hobble the National Labor Relations Board (NLRB) and scuttle its complaint that Boeing violated a provision of the National Labor Relations Act (NLRA). The NLRB says Boeing violated federal law when it moved production of its 787 Dreamliner jet from its Washington State plant to South Carolina in retaliation against workers who had exercised their right to strike.

    As noted here, lawmakers in the House have also pushed a bill that would gut the NLRB’s ability to hold corporations accountable for trampling workers’ rights, and specifically nullify the complaint lodged against Boeing. That complaint is now being considered by an administrative law judge in Seattle. The judge tossed aside Boeing’s motion to dismiss the case in June.

    Rep. Darrell Issa (R-Calif.), chair of the House Oversight and Government Reform Committee, has also pressured the NLRB over its legal action against Boeing. The Hill reported last month on a letter Rep. Issa sent to NLRB Acting General Counsel Lafe Solomon requesting documents related to the case.

    Recently more than 30 legal and labor policy experts in a letter to Issa urged him to back off.

    “As national legal and labor policy experts, we are gravely concerned by the undue pressure that this letter, and its threats to compel disclosure of privileged documents, have placed on an independent law enforcement agency.

    “We are particularly concerned,” the professors’ letter continues, “because the documents at issue relate to a case currently being tried before an Administrative Law Judge in Seattle, Washington. We therefore strongly urge the Committee to let this case proceed according to the policies established in the National Labor Relations Act without further interference.”  

    The letter concludes, “In our view, independent federal law enforcers must be protected from undue interference by Congress. If the Committee continues to inappropriately interfere in this process, these serious charges of illegal behavior may never be properly adjudicated, thereby denying both parties the opportunity to tell their full story. Such a result would jeopardize our long-held democratic principles and respect for the rule of law.

    Law professors Ellen Dannin and Ann C. Hodges, who joined the letter, have provided ACSblog with guest posts about the political interference with the NLRB’s complaint against Boeing. In her post, Hodges explains why the NLRB’s complaint “does not justify Congressional intervention in the legal process of an ongoing case, an appalling overreach by a coordinate branch of government.”

    Dannin, in her post, says NLRB has been transparent about the case – posting its complaint on its website and “memoranda summarizing the facts of the case and information about the investigation and trial procedure. Despite this, Congressional representatives are demanding administrative capital punishment for the NLRB’s ‘crime’ of doing its job.”

  • July 29, 2011
    Guest Post

    By Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School.


    These are heady days for administrative law. In hearing after hearing on Capitol Hill, members of Congress have examined the virtues and vices of a host of pending bills that aim to encumber regulatory decision-making. There are bills to require congressional approval before major regulations take effect, bills to subject informal agency guidance to notice-and-comment rulemaking, and bills demanding the elimination of one regulation every time another is imposed. For all their differences, however, the bills share a common purpose: to put the kibosh on what their sponsors decry as job-killing regulations.

    This is all a bit surreal. Hobbling federal agencies makes sense if the burdens of regulation systematically exceed the public benefits. But they don’t. In comprehensive studies, both Republican and Democratic administrations have repeatedly found that regulation confers substantial net benefits. The notion that federal bureaucrats as a group are heedless of social costs — or worse, that they regulate just for the thrill of it — has no foundation in either fact or theory.

    The truth is that some agencies grow so close to industry groups that they may not regulate diligently enough. A few examples:

  • June 29, 2011
    Guest Post

    By Ann C. Hodges, Professor of Law, University of Richmond School of Law


    Critics of the National Labor Relations Board’s (NLRB) complaint against Boeing Corporation have claimed that the complaint is unprecedented, motivated by political rather than legal considerations.  Members of Congress have written articles, held hearings, and threatened elimination of the agency.  While the facts remain to be fully developed in a hearing which began on June 14, the essence of the complaint is that Boeing decided to produce some of its Dreamliner jets in South Carolina because of the union’s prior strikes at its plant in Washington. 

    The case raises an interesting legal issue, but it is certainly not so novel as to suggest a purely political decision.  The National Labor Relations Act (NLRA) expressly protects the employees’ right to strike and to join together in a union to improve their wages and working conditions.   Interference with those rights using threats, coercion or discrimination is prohibited.  The NLRB is tasked with enforcing the law where investigation reveals that a violation may have occurred.  Public statements from company officials indicated that the decision to locate production in South Carolina and seek outside suppliers for some parts was based on previous strikes by the unionized employees in Washington.  According to the NLRB’s complaint, these statements also suggested that the unionized employees stood to lose future work because of their frequent strikes.

    The NLRB regularly issues complaints against employers who threaten employees with loss of work or discriminate against employees because of their union activity, usually without such public evidence of motive.  In numerous prior cases this discrimination has taken the form of discharge, discipline, contracting out the employees’ work, eliminating a department, relocating operations, or even closing a plant.  So long as the motive is to discourage protected union activity, the conduct is unlawful.  And that is the allegation here. 

    Where employers have legitimate business reasons for discriminating against strikers or employees who have engaged in protected union activity, the NLRB may find the action lawful despite its adverse impact on the employees and the potential for chilling their future exercise of legal rights.  The interesting legal question here is whether the Board or the courts will find Boeing’s desire for a dual source to avoid the impact of the strike to be a lawful and legitimate business reason, where it has expressly tied the decision to its employees protected activity.

  • June 27, 2011
    Guest Post

    By Rena Steinzor, President of the Center for Progressive Reform and Professor, University of Maryland School of Law


    A series of catastrophic regulatory failures in recent years has focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The failures are the product of a destructive convergence of funding shortfalls, political attacks, and outmoded legal authority, setting the stage for ineffective enforcement and unsupervised industry self-regulation. From the Deepwater Horizon spill in the Gulf of Mexico that killed eleven and caused grave environmental and economic damage, to the worst mining disaster in 40 years at the Big Branch mine in West Virginia with a death toll of 29, the signs of regulatory dysfunction abound. Peanut paste tainted by salmonella, lead-paint-coated toys, sulfur-infused Chinese dry wall, oil refinery explosions, degraded pipes at U.S. nuclear power plants: At the bottom of each well-publicized event is an agency unable to do its job and a company that could not be relied upon to put the public interest first.

    Although everyone should be able to agree that these events are intolerable to the extent they are preventable, thoughtful analysis is too often sidetracked by the nation’s polarized debate over the role of government in our daily lives. Conservative commentators argue that accidents like the Gulf spill are the inevitable byproducts of industrialization, daunting in the best of times but having little to do with government failure. They say that over-regulation is a far more serious problem than under-regulation because bureaucrats run-amok are hobbling the country’s long-delayed recovery from a devastating world-wide recession. Progressive commentators  respond that one of the government’s most important jobs is to prevent industry from trading safety for profit, by compelling manufacturers to install redundant, fail-safe mechanisms to protect public health and the environment. Spills, explosions, unchecked carbon emissions, tainted drugs, and unhealthy air pollution represent chronic failures by government to forbid conduct that lies in the mainstream of business as usual. 

    During his presidential campaign, Barack Obama seemed to subscribe to the progressive view, declaring that the role of government is to help people when they cannot help themselves and raising the strong expectation that he would sponsor affirmative reform to prevent the damage produced by the sharper edges of a capitalist economy.