In the Fall 2010 issue of the ABA Journal of Labor and Employment Law, G. Roger King provides a very provocative statistical survey comparing the rate of reversals of NLRA precedent under the Clinton and G.W. Bush Federal Labor Relations Boards, and concludes the Clinton Board --not the Bush Board-- was the more activist.
On the basis of his survey, King "concludes that there is no factual or legal basis to support the criticisms that the Bush II Board substantially changed NLRB precedent ... Indeed, such analysis shows that many of the so-called reversals of precedent during the term of the Bush II Board actually returned the state o the Board law to previous, long-held Board precedent and were, in large part, a response to the very activist precedent reversals course of the Clinton Board."
From March 1994 to December 2001, the Clinton Board issued 4,138 reported decisions, 60 of which King concludes reversed 1,181 years of prior precedent. In contrast, from December 2002 through December 2007, the Bush II Board issued 1,782 reported decisions, which King concludes reversed 295 years of precedent. From these numbers, King concludes the Clinton Board had a reversal rate of 1.45%, and the Bush II Board had a reversal rate of 1.01%.
King also concludes that "the federal circuit court affirmance rate of the Bush II Board decisions was either equal to or greater than the circuit court affirmance rate of the Clinton Board." Specifically, Clinton decisions were enforced in full 66.8% of the time, and in part 81.5% of the time. In contrast, Bush II decisions were enforced in full 77.9% of the time and in part 87.9% of the time.
Based on these statistics, King urges the new Obama Board to use caution in handling precedent going forward.
If you are interested in neutral services such as arbitration, mediation or contract ALJ services, in labor/employment or other areas of the law, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
