Yet another blogroll addition; highlighting listing of past and likely future NLRB flipflops

In my last post adding to the blogroll, I omitted one: LawMemo Employment Blog, by Ross Runkel, editor at LawMemo.Com. This blog appears to be but a sampling of

the rich offerings available to subscribers to lawmemo.com, a reasonably priced service worth checking out for those desiring to keep abreast of all the latest labor and employment case law.

Here’s a sample “electronic advance sheet” from the service.

On the blog, I found of particular interest the post entitled: “NLRB Reversals During the Bush Administration”

Lists recently overruled NLRB precedents and more that Ross feels are likely to be overruled.

Explains:

Although more than 90 percent of all NLRB decisions are unanimous, a small number of cases tend to be decided along political party lines, and these cases often involve important legal policies that have a high impact on employers, unions, and employees.

The NLRB has a great deal of discretion to decide on detailed interpretations of the National Labor Relations Act. Generally, when the Act does not give a clear answer to a legal question, the courts are required to defer to the NLRB’s interpretation, assuming it is a reasonable one. . . As a result . . . , shifting majorities on the NLRB are able to change the Board’s interpretation of the law, with court approval in most cases.

Although the NLRB is in many ways an effective agency, and the fact it receives criticism from both sides suggests it does not in fact favor one side or the other excessively over the long haul, this tendency to flipflop on some sensitive issues is an unfortunate one.

For employers and their attorneys, it means that to avoid trouble one should steer clear of the gray areas where the interpretation may shift, making unlawful conduct that appeared (barely) lawful.

On the other hand, it also means that in certain areas there can be a benefit from pushing back hard and attempting to obtain a favorable ruling despite some unfavorable past precedent. Sometimes what occurs is not an express overruling, but a painstaking distinguishing of the old precedent.