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Attacks on NLRB imperil due process, workers’ rights

By Fred Feinstein

Since issuing a complaint against The Boeing Co., the National Labor Relations Board’s acting general counsel — and the board itself — has been the target of intense political attacks.

The board alleges that Boeing unlawfully retaliated against employees by taking work away because they went on strike. As with the enforcement of any law, it is not unusual for NLRB complaints to be sharply contested and litigated.

But something different is going on in this case: The controversy surrounding this small federal agency’s prosecutorial decision is raising concern that today’s heated political rhetoric is undermining the constitutional right of due process.

Numerous public officials have attacked the NLRB’s general counsel for issuing the Boeing complaint. There have been requests from Congress to see confidential investigatory files related to the complaint. Boeing’s lawyer has been afforded the opportunity to argue his case at a congressional hearing. We are in uncharted waters when a public prosecutor is the subject of a firestorm of criticism for issuing an administrative complaint.

All that’s happened in the Boeing case so far is the issuance of the complaint. The NLRB general counsel must investigate every charge filed. If the general counsel finds sufficient evidence, he will issue a complaint to place the case before an administrative law judge, who will decide whether the law has been broken. This decision is appealable to the NLRB and the federal courts.

Boeing’s employees in Seattle initiated the suit. They filed charges with the NLRB after the company said it would take work away from them because they had exercised a protected right — the right to strike.

After an investigation, the general counsel issued a complaint, alleging that the Boeing officials’ public statements about transferring work were “inherently destructive of the rights guaranteed employees” by the law. As a former NLRB general counsel, my view is that under well-settled principles of law, the general counsel had to issue a complaint.

Boeing officials, offering legal and evidentiary arguments, say the company has not violated the law. They will soon make these arguments before an administrative law judge, the NLRB and the federal courts.

Some of the outcry from public officials and others has been directed at the policies of the 76-year-old National Labor Relations Act. Several officials have expressed dismay that the law limits companies’ power to take work away from employees in retaliation for striking. They say the government should not be allowed to interfere in employers’ business decisions.

However, it’s hard to dispute the existence of a wide range of well-accepted laws that limit business decisions — including restrictions on polluting, selling products that are unsafe, paying below minimum wage or discriminating against workers over race or gender. These laws faced opposition when they were enacted, and some continue to oppose them today. But they are the law of the land.

My view is that these laws have helped our country grow and prosper. But that is a different debate than the one about Boeing.

The critics of the Boeing complaint are aggressively challenging the process by which the law is enforced. Their attacks have been directed at the general counsel for initiating a legal process, suggesting it’s proper to drag a federal prosecutor into the expanding political arena just for deciding there’s sufficient evidence to proceed on a case.

Politics has grown more divisive in recent years, but when political rhetoric spills into the enforcement of long-established laws, something more is at stake. Impugning the legitimacy of a legal case at the early stages of prosecution challenges the basic legal framework that underlies our Constitution.

In addition to troubling implications about weakening important worker rights, the shrill response to the Boeing complaint is part of the expanding attack on law enforcement that undermines fundamental principles of due process and the idea that we are a nation under law.

Fred Feinstein is a former NLRB general counsel. He is now a consultant to several unions and other organizations. He is also a senior fellow at the University of Maryland School of Public Policy’s Office of Executive Programs.

This column originally appeared at Politico and is reposted at The Stand with the author’s permission.

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