NLRB’s “impractical, dangerous” Browning-Ferris ruling

Courts will eventually strike down the National Labor Relations Board’s awful Browning-Ferris ruling (earlier) extending labor-law liability across many franchising and subcontracting relationships, predicts lawyer and former NLRB member Marshall Babson at the New York Times’s “Room for Debate.” More: Sean Hackbarth, U.S. Chamber. And my Cato piece on the ruling has been reprinted at the Foundation for Economic Education.

P.S. Republicans introduce bill to overturn ruling, prospects uncertain so long as Democrats in position to sustain presidential veto.


  • A ridiculous assertion. I think he has a decent argument that the NLRB should not have taken the action as a matter of policy. I don’t think his argument that the NLRB is precluded from taking the action has much of a chance, unless the Court finds that the decision is so important that Chevron does not apply. And I cannot believe that it falls into that area.

    Anyone else find it ironic that conservatives turn to the courts to overturn economic policies that are consitutional on their face, after criticizing liberals for doing the same thing for the previous century?

  • Who said anything about a constitutional challenge? Both liberals and conservatives supposedly agree that it is proper for the courts to review whether the NLRB is conforming its actions to its authorizing statute, the NLRA, and whether or not Chevron deference applies is hardly the only question they will ask. (Some language in King v. Burwell does suggest that the Court is shrinking the scope of such deference, especially in “big” cases.)

    Ridiculous, indeed.

  • I did not claim that there was a constitutional challenge.

    I believe that the chancinig of prevailing are slim. Rarely are agency actions overturned (when they are, it is big news, which makes it seem that it happens more than it does). This is due to the Chevron deference principle. I doubt that the Supremes would find that this is a big enough case to warrant scrapping the Chevron deference.

  • Allan, you apparently don’t follow the Board much. Board rulings are overturned relatively frequently. Most in labor law circles expect this one to be overturned.