In 2010, I wrote about a survey of changes to NLRB precedent, written by G. Roger King and publishes in the Fall 2010 issue of the ABA Journal of Labor and Employment law. Mr. King's analysis revealed that over a comparable course of years (5-7), the Clinton Board reversed 1,181 years of prior precedent while the Bush II Board
issued reversed only 295 years
of precedent. Additionally, King noted 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.
In the Vol. 26, No. 3 of the Journal, Associate General Counsel of the AFL-CIO, Bill Lurye, reviews King's data and the decisions, and concludes they were "prove[d] susceptible to interpretation and vulnerable to manipulation." Lurye also advises that "a mathematical
comparison should not be confused with an analytical evaluation of the coherence, legitimacy, or integrity of NLRB decision making."
comparison should not be confused with an analytical evaluation of the coherence, legitimacy, or integrity of NLRB decision making."
Specifically, Lurye notes the following flaws or omissions in King's survey:
- the Clinton Board was in place longer, but also was much more productive than the Bush II Board;
- in 40% of the cases in which the Clinton Board reversed precedent, that decision was supported by both Democrat and Republican Board members, "with no Republican member dissenting;"
- in many other cases, reversals were supported by a majority that included a Republican; and
- in some cases, the Board's Republicans in favor of reversal were even in the majority.
Luyre notes--somewhat oddly and without elaboration--that if the analysis excludes cases in which Clinton Board Republicans or Bush II Democrats voted fore reversals, then "using Mr. King's formulas, the precedent-reversal rate is 0.51% for the Clinton Board and 0.73% for the Bush II Board."
Concluding that "[t]he mathematical comparison provides little insight or understanding," Mr. Lurye goes on to argue that the Bush II Board made "sweeping changes to Board policy and case law" such as "eliminat[ing] whole segments of the workforce from its definition of 'employee;" restricting "already notoriously weak remedies;" and "significantly narrow[ing] worker protections while expanding the scope of anti-union conduct lawfully available to companies." Moreover, Lurye argues, it did so without overruling precedent, but rather through amending rules, misapplying existing precedent, and issuing decisions that were inconsistent with prior cases and even their own rulings. In contrast, Lurye argues that some of the Clinton Board reversals concerned either old and unused precedent, or cases that were contradicted by the weight of other precedent.
Without having analyzed the data personally, I would hazard the guess that every Board has from time to time misapplied or gutted law, for both good and bad reasons, and that in each case there were likely at least two polarized views on the merits and legitimacy of the ruling. I would also suggest that labels such as "Democrat" and "Republican," which are themselves out of date in many ways, may not tell the full story.
In any event, I highly recommend both articles to folks interested in this area of law. They are both well written and thought provoking.
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