Unexplained Departure from Which Precedent?
posted by Frank Pasquale
Anyone teaching administrative law has to grapple with famous cases involving the National Labor Relations Board. The Board has a long history of sharp political shifts that frustrate appellate courts and litigants alike. The NLRB does virtually all its work via adjudication, which provides it ample room to contradict itself if it can “explain departures from precedent.” Today’s Harold Meyerson editorial National Labor Ruination Board provides a limit case of Board inconsistency:
On Sept. 29 — a date that will live in the Double Standard Hall of Fame — the NLRB issued two rulings, the first (Dana Corp./Metaldyne) dealing with “card check.” This is the process by which an employer can recognize a union when a majority of employees sign cards or petitions affiliating themselves with that union, bypassing the board election process, which an anti-union employer can drag out for years. The board ruled that once a union was certified through card check, the employer must post a notice telling employees that if 30 percent of them sign a petition saying they don’t want a union, the 50 percent-plus-one of them that do are overruled and a board election must be held. The Bush appointees argued that card-check isn’t a good measure of worker sentiment, since those employees who sign cards and petitions may be susceptible to “group pressure.”
On the same day, however, in a case (Wurtland Nursing) involving an employer’s withdrawal of recognition from the union in its workplace, the board ruled that if a majority of workers signed cards or petitions asking for a vote to remove the union, the employer could decertify the union then and there without even holding that vote. Signed petitions from workers, in other words, are suspect when the workers want a union and proof positive when they don’t.
The contradiction raises fascinating legal questions. Which decision came down first? And must the latter case explain its contradiction of the principles inherent in the former? What if the Board adopts a general presumption that workers can be intimidated into forming unions but cannot be intimidated not to join a union? Can an agency evade a responsibility to reconcile two cases by releasing them simultaneously–i.e., neither is precedent for the other? Perhaps something like the Uniform Simultaneous Death Act needs to be adopted for wily agencies that release contradictory opinions simultaneously.
There should be some appellate scrutiny of these decisions, even if the Board intransigently adopts a policy of nonacquiescence in response.
Image: Seal of Knights of Labor.
November 21, 2007 at 4:51 pm
Posted in: Administrative Law
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