NLRB reverses ALJ On Due Process Grounds

New York Post, 353 NLRB No. 30 (Sept. 30, 2008), is an interesting case as well as important case. The NLRB reversed an ALJ on Due Process grounds because the employer did not have adequate notice of the General Counsel's legal theory. The Board described the appropriate standard as follows:

The Board has indicated that “[t]o satisfy the requirements
of due process, an administrative agency must
give the party charged a clear statement of the theory on
which the agency will proceed with the case. Additionally,
an agency may not change theories in midstream
without giving respondents reasonable notice of the
change.” Lamar Advertising of Hartford, 343 NLRB
261, 265 (2004) (citations and internal quotation marks
omitted). In determining whether a respondent’s due
process rights were violated, the Board has considered
the scope of the complaint, and any representations by
the General Counsel concerning the theory of violation,
as well as the differences between the theory litigated
and the judge’s theory. See generally Sierra Bullets,
LLC, 340 NLRB 242, 242–243 (2003) (violation based
on broader theory improper and violates due process
when General Counsel expressly litigated case on narrow
theory).

Mitchell H. Rubinstein