Bloomberg Law
July 12, 2019, 10:15 AM

Labor Board Repeatedly Topples Precedent Without Public Input

Robert Iafolla
Robert Iafolla

The National Labor Relations Board’s ruling last week that made it easier for employers to oust unions marked at least the 10th time during the Trump administration that the NLRB settled case law without giving prior notice or an opportunity for public input, according to a review of decisions.

The Republican-controlled NLRB’s ruling also overturned precedent for employers withdrawing recognition of unions in its July 3 decision in Johnson Controls without being asked to do so by the parties in the case. The board has similarly overturned prior decisions on its own initiative in most of those cases in which it didn’t request public briefing.

Not providing notice or inviting additional input en route to overruling precedent without being asked feeds criticism that the Trump NLRB is advancing its pro-management agenda more aggressively than past boards pushed their policy priorities.

“What’s the downside of following what the norms have been to seek briefing, particularly in cases where parties haven’t asked for a change in the law?” said Craig Becker, AFL-CIO general counsel and former Democratic board member. “What are they afraid of?”

NLRB Chairman John Ring (R) said in a statement that it’s “inaccurate to say that the Board has regularly solicited amicus briefing before overturning precedent.” The NLRB has struck down or ignored prior decisions without briefing “many times over the years,” according to Ring.

But Member Lauren McFerran, the board’s lone Democrat, has said in dissents that it’s a well-established NLRB practice to seek outside briefing in significant cases, listing 26 examples going back to 2006. GOP members referenced six cases to show that the Obama-era board scrapped precedent without public input, but the possibility of overturning prior rulings was at least addressed by a party in those matters, McFerran said.

The standards established in those 10 Trump-era rulings could be more vulnerable to reversal by an appellate court due to the lack of briefing, several former board members and law professors said. Other former board members, on the other hand, said the NLRB’s process to reach those holdings doesn’t make them any more prone to a court challenge.

In those decisions, the NLRB set more employer-friendly rules for pivotal issues such as determining the legality of workplace regulations, appropriateness of smaller bargaining units, whether workers are employees or independent contractors, and whether union organizers can access parts of company property.

The board also overturned the contentious Obama-era standard for joint employment liability without notifying the public or the parties in the case on which it was ruling that it was considering a reversal of precedent. But it later withdrew that ruling due to an ethics violation by a Republican board member. The NLRB then moved forward with a rare administrative rulemaking on joint employment that has garnered nearly 29,000 public comments. The board has since announced a relatively robust rulemaking agenda.

“The current board is being as inclusive and transparent as any prior board has been,” said Brian Hayes, a former Republican board member.

Administrative, Due Process Concerns

An NLRB decision that overturned precedent without prior notice or invitation for briefing could be susceptible to claims that the board violated its constitutional due process requirements or statutory bars against making unreasonable, arbitrary decisions, Fordham University law professor Aaron Saiger said.

Those claims, however, would be met by arguments that not allowing for briefing doesn’t rise to the level of a due process violation and that courts can’t add new rules to an agency’s decision-making process, said Saiger, who specializes in administrative law.

Courts have generally been deferential to the NLRB on what it deems to be reasonable when it changes its precedent as partisan control of the board changes, Boston College law professor Hiba Hafiz said. Courts have also avoided taking on constitutional issues such as due process with regard to agency application of federal labor law, said Hafiz, who teaches and writes in the areas of administrative and labor law.

While the NLRB overturning precedent when nobody asked it to can raise due process and other concerns, courts haven’t squarely held that doing so can be the sole basis for finding a decision unlawful, she said.

Other Appellate Issues

Aside from challenging the lack of briefing as a procedural violation, the failure to get input could cause other problems on appellate review, said Matthew Bodie, a St. Louis University law professor and former NLRB attorney. There may be issues that would have been brought up in briefing that the board didn’t address in the decision, which a court could find fault with, he said.

As a practical matter, though, workers and unions don’t have the same financial firepower to appeal board rulings as the business community does, former Democratic NLRB Chairman Mark Gaston Pearce said.

Just two of the rulings that toppled precedent without outside input have drawn union appeals at this point. Both stem from a set of consolidated complaints against UPMC, a hospital network based in Pennsylvania. A Service Employees International Union challenged decisions that let administrative law judges approve settlements over charging parties’ objections and restrict union access to employers’ property.

The SEIU’s appellate briefs filed thus far don’t indicate that it will pursue arguments based on the lack of input from the public or parties. The union’s attorney in the cases, Betty Grdina of Mooney Green Saindon Murphy & Welch, declined to comment.

First Five in 2017, Rest in 2019

The labor board during the Trump administration began overturning precedents on its own initiative and without inviting briefing in five cases decided in December 2017, just before the end of then-Chairman Philip Miscimarra’s tenure. It immediately became a point of contention between the Republican majority and the Democratic minority.

The Republican members pointed out in their opinions that there’s nothing in the National Labor Relations Act or Administrative Procedure Act that requires the NLRB to seek outside views when considering the reversal of precedent. They also referred to six cases from 2014 to 2016 in which the Obama-era NLRB overturned settled case law without seeking outside views.

But McFerran said in dissents that those six Obama-era cases are different. A party in all of them explicitly argued for precedent to be overturned and the board majority didn’t reject a member’s request for outside views in any of them, she said. The GOP majority denied Democratic requests to call for outside briefing in at least one of the December 2017 rulings.

The NLRB overturned precedent without input from the parties or the public again in its January ruling in SuperShuttle, which changed the board’s legal test for determining a worker’s employment status. The board used the case to scrap its 2014 ruling in FedEx Home Delivery, even though there had been no movement in the SuperShuttle docket since 2011.

By the time the NLRB handed down its ruling last week in Johnson Controls, the majority dispensed with McFerran’s “oft-repeated” concerns about the process it used to decide the case with a terse footnote. McFerran, meanwhile, said that overturning precedent on its own accord and without notice or public input has become the current board’s “unfortunate signature.”

Added Input v. Precious Time

The NLRB has invited briefing in at least four cases since Republicans took control of the board in 2017. The Obama board more frequently sought outside views. It called for public briefing a dozen times from 2014 to 2016, for example.

“It’s a norm to allow the public to weigh in for a reason,” said Sharon Block, a former Democratic board member. “It’s a really important part of the process. The current board certainly hasn’t provided a good reason for breaking with that norm.”

But additional briefing isn’t always needed when the NLRB is considering overturning precedent, some former board members said. Sometimes the issues were already thoroughly briefed in previous cases, the precedent was relatively new and had disrupted older prior case law, or it applies to a very narrow set of circumstances, they said.

For each instance, the board needs to balance the value of additional briefing against the time it will take to process that information, they said.

“There’s a constant stream of cases and issues, and they take a lot of time and attention to detail,” said Marshall Babson, a former Democratic board member. “For any one of these cases, deciding how wide a net to cast is a function of utility and getting the job done.”

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Phil Kushin at; Terence Hyland at