Raw Politics To Reign Supreme At Obama Labor Board As Two Members Remake Procedural Law

By Fred Wszolek

Many cases issued by President Obama’s National Labor Relations Board over the last two weeks have alarmed employee-rights advocates and employers.  But perhaps the most alarming is the NLRB’s decision in Dish Networks according to which the Board can overrule precedent and rely on a theory of violation without regard to whether it was pled and litigated by the parties.

The current Board in Dish Networks began by denying a union’s motion for reconsideration of a prior Board’s recent denial of the union’s request that it overrule precedent.  The prior Board relied on the fact that the union (and the General Counsel) never sought to have the particular precedent (Tri-Cast) overruled.  The union only argued that Tri-Cast was distinguishable.

Two NLRB members (Pearce and Block) then veered sharply to the left giving the green light to the Board to ignore the adversary process in future cases to achieve a desired result.  They reached out and reversed procedural precedent nearly as old as the 1935 Board.  According to that precedent, the General Counsel is master of his complaint and his theory of the complaint is controlling; it cannot be enlarged upon.  That  precedent recognizes the independent prosecutorial role of the General Counsel and protects the due process rights of the parties before the Board.

But that is no longer.   Without a whiff of concern for the legal procedures that govern the courts and protect fundamental due process, the NLRB declared that the “familiar axiom” that the General Counsel is the “final authority, on behalf of the Board,” with regard to the prosecution of complaints, is no longer applicable.  According to the two NLRB members, the Board is “supreme” in its sphere and it, and it alone, will determine the issues to be decided.  The fact a matter was un-pled and un-litigated will not  be a constraint.

Board Member Brian Hayes sounded the alarm in his dissent.  Hayes said the two members “pave the way for the Board, in any case, regardless of exceptions filed or issues litigated, to address and overrule precedent.  To the extent that any member of the public has any faith left that this Board holds even a semblance of allegiance to concepts of stare decisis and due process, that faith should evaporate with this opinion.”

We would go even further.  The change the NLRB announces even permits it to find a violation on a theory never pled or litigated.

Chairman Mark Peace and Sharon Block took an oath to protect the due process rights of parties before the NLRB. They now disclose their unwillingness to do so if it stands in the way of the politically-desired result by Big Labor.


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