Source: Emory Law Journal, Vol. 64, Special Issue, 2015
Panel I: Assessing the NLRB’s Impact and Political Effectiveness
Toward Politically Stable NLRB Lawmaking: Rulemaking vs. Adjudication
For the last several decades, there have been two constants with respect to the National Labor Relations Board. First, the modern Board has been notoriously reluctant to use its rulemaking authority; until recently, it had made only one significant substantive rule via the notice-and-comment process. Second, commentators—academics, lawyers, judges, and politicians—have issued a steady stream of calls for the Board to make law via rulemaking rather than through adjudications, arguing for the rulemaking process on both pragmatic and normative grounds. In recent years, however, the first of these has changed: the Board has engaged in two significant rulemaking processes. Each of these processes was both time intensive and politically and judicially fraught, calling into question whether the Board can achieve the process benefits of rulemaking in the current contentious political environment. This Symposium Essay explores the extent to which the Obama Board has been able to achieve the purported benefits of rulemaking, and therefore whether the benefits of making labor law through the rulemaking process exceed the costs, especially where the Board could alternatively make law via adjudication.
The NLRB: What Went Wrong and Should We Try to Fix It?
Julius G. Getman
For eighty years, national labor policy as set forth in the National Labor Relations Act has been committed to overcoming the “inequality of bargaining power between employees . . . and employers” by “encouraging the practice and procedure of collective bargaining” and by “protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives.” The basic tenants of national policy may be restated in terms of a series of commands directed at the National Labor Relations Board and the courts. These may be stated as follows: (1) Promote and protect the right of workers to organize for the purposes of collective bargaining. (2) Prevent employers from using their economic power to inhibit free choice by workers. (3) Leave the parties free to negotiate their own agreements. (4) Recognize and protect the right to strike. The key to turning these commands into a living reality was the establishment of the NLRB, an expert agency that was to use its understanding of labor relations reality to establish national labor policy by defining more precisely the general terms of the NLRA subject to minor and supportive review by the courts. When the law was first enacted, its drafters probably assumed that the Court would be instructed in the realities of labor relations by the newly established NLRB and its presumed expertise. That has failed to happen, in part because the expertise of the Board is largely fictional and because the Court regularly ignores and overrides even sensible Board opinions.
Politics and the Effect on the National Labor Relations Board’s Adjudicative and Rulemaking Processes
William B. Gould IV
The National Labor Relations Act has never explicitly required political balance in the National Labor Relations Board’s (NLRB or Board) appointment process. But the Eisenhower administration demonstrated that policy shifts could be initiated through changes in NLRB composition. The Kennedy Board shifted gears again, prompting critics to say that the Board was on a “seesaw.” More pronounced polarization began to emerge in the 1980s as political party divisiveness and union decline created more adversarial relationships. In the 1990s, divided government produced a “batching” of appointees (in contrast to annual Senate confirmation votes on each appointment as their term expired), horse trading of “interchangeable elites engaged in an insider’s game” as Professor Calvin McKenzie said. Ultimately, the consequences of impasse through this process twice resulted in Supreme Court decisions interpreting the Act and the Constitution so as to alter the relationship between the President and the Senate. But the Senate, under Senator Reid, was to trump the practical effect of these holdings by eliminating the filibuster, which frequently stalled or stopped NLRB appointments. Paradoxically, however, through both oversight hearings and the Congressional Review Act of 1996, legislative interference with the work of the NLRB has never been more extensive.
The NLRB, the Courts, the Administrative Procedure Act, and Chevron: Now and Then
Theodore J. St. Antoine
Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency’s statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, but if a statute is silent or ambiguous on the precise issue, then the court will defer to an agency’s determination that is a permissible construction of the statute. More recently there has been a revival of interest in the earlier, more flexible Skidmore approach. That would call for considering a variety of factors, including whether the issue was one of “pure law” or the application of law to facts and the formality or informality of the agency’s decisional process. It has even been suggested that these deference tests could be reduced to a single inquiry: was the agency’s decision “reasonable”? Empirical studies have indicated not only that the political backgrounds of NLRB members substantially affect its decisions but also that the political backgrounds of judges substantially affect the decisions of reviewing courts.
Panel II: A Conversation with Members of the National Labor Relations Board and the General Counsel
A Conversation with Members of the National Labor Relations Board and the General Counsel
Mark Gaston Pearce, Richard F. Griffin, Jr., Kent Y. Hirozawa, Harry I. Johnson, III, Lauren McFerran, Philip A. Miscimarra, Charles A. Shanor
A conversation with the NLRB Members and General Counsel. Beginning with remarks from the General Counsel of the Board, reviewing issues related to wage stagnation, inequality in the workplace, and the role of the Labor Board and the General Counsel. Second, Chair Pearce and Member Miscimarra review the new representation rule. Third, Member McFerran discusses the relationship between Congress and the Board. Fourth, Member Hirozawa provides an overview of recent NLRB decisions of substantial importance in the workplace. Fifth, Member Johnson reviews some pending issues before the Board. Finally, the Board and General Counsel address questions from the audience.
Panel III: Opportunities for Improvement in Changing Times
Labor Law 2.0: The Impact of New Information Technology on the Employment Relationship and the Relevance of the NLRA
Kenneth G. Dau-Schmidt
The NLRA system of collective bargaining was born during the industrial age of the early twentieth century. As a result, key terms in the statute such as “employee,” “employer,” and “appropriate bargaining unit” were first interpreted in the context of long-term employment and large vertically integrated firms that dominated this era. Beginning in the late 1970s, the new information technology wrought a revolution in the organization of production increasing short-term contingent employment and the organization of firms horizontally in trading and subcontracting relationships across the globe. To maintain the relevance of collective bargaining to the modern workplace, the interpretation of the key terms of the NLRA must be updated to recognize the changed circumstances of production and interpret union access and employee mutual support in light of the new technology. However, new information technology promises further changes in the workplace with the accelerating mechanization of many jobs and perhaps a fundamental change in the relationship between labor and capital with the development of artificial intelligence. In this Essay, I explore the implications of new information technology for the workplace, the interpretation of the NLRA, and the continuing evolution of American labor policy.
‘Depoliticizing’ the National Labor Relations Board: Administrative Steps
Complaints about the political forces arrayed against the basic labor laws and about the increasing “politicization” of the National Labor Relations Board are hardy perennials. The charge remains a constant, only those who level it differ depending on which party is in the White House. On the assumption that legislative change is not in the offing, what can the Board on its own do to improve its reputation in Congress and in the courts and, at the same time, enhance its effectiveness as the essential government agency to protect workers in dealings with their employers?
The NLRB as an Überagency for the Evolving Workplace
Michael Z. Green
As a result of having this full complement of NLRB members, this Essay asserts that the NLRB has become the premier administrative agency for addressing workplace matters across a broad spectrum of employee–employer concerns. In this respect, the NLRB represents a super—or über—agency that points a spotlight on important workplace issues that no other administrative agency could or should address. With the five appointed members’ outstanding expertise in labor law, as well as in broader workplace concerns under employment discrimination and employment law, these NLRB decisionmakers offer an unusual level of knowledge to operate on the front line in adjudicating perplexing issues that continue to evolve in the workplace.
NLRB Elections: Ambush or Anticlimax?
Jeffrey M. Hirsch
The National Labor Relations Board’s (NLRB) new election procedures represent a comprehensive reform of its representation process. As is the case for many broad reforms, the new rules have prompted significant criticisms and accolades. Many employers have decried the new rules as implementing an unfair “ambush” election process that will deprive employees of needed information and employers of their right to express their views about unionization. In contrast, unions have largely applauded the new rules as an improvement on an election system that they view as stacked against them. The truth appears far less monumental. Although the NLRB’s new rules provide a much-needed update to election procedures and aim to decrease many sources of unwarranted delay, they seem incapable of causing a significant impact on employees, employers, or unions. The new rules should result in a quicker election process, but not so quick that they can be fairly described as “ambush” or a deprivation of employers’ ability to communicate with employees. Moreover, the modestly shorter time periods for elections are unlikely to improve unions’ election win rates or increase union density in a significant way. In short, the NLRB has implemented a modest set of improvements to its representation process, and critics and proponents should not exaggerate the limited impact of those reforms.