What if there were emails showing Supreme Court Justice Sonia Sotomayor coordinating with Attorney General Eric Holder and White House press secretary Robert Gibbs on how the Obama administration should fight judicial challenges to Obamacare?
At a bare minimum, Justice Sotomayor would have to recuse herself from the case, she might be impeached, and Holder would face serious ethics questions as well. But such emails do not exist … concerning Obamacare. When it comes to the National Labor Relations Board suit against Boeing, that is a different story.
Cause of Action, a government accountability nonprofit, has obtained emails through a Freedom of Information Act request showing then-NLRB Chairwoman Wilma Liebman, NLRB Acting General Counsel Lafe Solomon and NLRB Public Affairs Director Nancy Cleeland coordinating the board’s response to its own decision to sue Boeing for opening a factory in the right to work state of South Carolina.
But, since the NLRB is an independent agency, shouldn’t they be allowed to coordinate about ongoing litigation? Yes and no. The NLRB is supposed to be an independent agency, capable of creating rules, enforcing them and adjudicating them.
But because the NLRB has within itself all of the governing powers our Founding Fathers believed should be separated (legislative, executive and judicial), its creators also wrote rules making it illegal for board employees who perform different functions from communicating with each other under certain circumstances.
Specifically, 29 C.F.R. 102.126 and 29 C.F.R. 102.127 forbid a member of the board from requesting or “knowingly caus[ing] to be made” any ex parte communications with any interested person outside the agency relevant to the proceeding.
That same regulation also forbids any “interested person outside this agency” from making any ex parte communications to board members.
Most importantly, 29 C.F.R 102.127 specifically defines the phrase “person outside this agency” to include “the general counsel or his representative when prosecuting an unfair labor practice proceeding before the board pursuant to section 10(b) of the act.”
The regulations define an ex parte communication as “an oral written communication not on the public record with respect to which reasonable prior notice to all parties is not given.”
The emails Cause of Action obtained would seem to be covered by these laws.
Solomon is the general counsel. He is pursuing an unfair labor practice proceeding against Boeing before the board pursuant to 10(b) of the National Labor Relations Act.
Liebman was the chairwoman of the NLRB. Any decision made by the administrative law judge hearing the Boeing case Soloman is arguing could be appealed to Liebman’s board, much as lower court decisions are appealed to the Supreme Court. So all communications between Solomon and Liebman about the Boeing suit would be illegal under the NLRA.
Cause of Action has obtained at least four emails sent to both Solomon and Liebman explicitly about the Boeing litigation. There is also a fifth email about the Boeing litigation, sent from Liebman herself, to Cleeland and Solomon. All of these communications appear to violate NLRB’s own rules.
Cause of Action has asked NLRB’s inspector general to investigate the apparently illegal coordination by Liebman, Cleeland and Solomon on the Boeing suit. But Congress must do more.
It is bad enough that Congress has eviscerated the Constitution’s separation of powers doctrine by ceding away its governing powers to administrative agencies like the NLRB. Congress should not now allow those agencies to ignore what few protections have been left in place.
Conn Carroll is a senior editorial writer for The Washington Examiner. He can be reached at firstname.lastname@example.org.