Labor Board Repeatedly Topples Precedent Without Public Input


Professor Aaron Saiger talked with Bloomberg Law about a recent National Labor Relations Board ruling that makes it easier for employers to oust unions.

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.

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.

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