38 Pages Posted: 24 Sep 2013 Last revised: 13 Jun 2014
Date Written: September 23, 2013
Historically, the NLRB has interpreted the unfair labor practice provisions of the NLRA primarily through the adjudication of individual cases involving charges against employers or unions. Because control of the Board shifts back and forth with changes in the administration, this process of making law through case-by-case adjudication has had relatively disastrous results. Employers and unions complain about frequent reversals of precedent when the Board invariably changes composition along political lines. This leads to uncertainty and unnecessary costs associated with efforts to comply with the ever-shifting rules. The rabid politicization of the NLRB has eroded its legitimacy and made it difficult to maintain a fully constituted and validly appointed Board. In recent years, this has led to the retroactive invalidation by the Supreme Court of numerous decisions of the Board due to the absence of a lawful quorum; and currently the Supreme Court is considering the status of more than a thousand other decisions that may be retroactively invalidated due to unconstitutional recess appointments. We posit that these serious defects could be cured by curbing the Board’s decisional authority. This article proposes to amend the NLRA to eliminate the NLRB’s adjudicative function in unfair labor practice cases and transfer that responsibility to federal district courts, while preserving the Board’s core competencies: (1) conducting elections and resolving representation issues, and (2) investigating (and resolving short of litigation) unfair labor practice charges. Under our model, the Board would continue to have rulemaking authority. However, the Board would be encouraged to rely on administrative guidelines, similar to those adopted by the EEOC, instead of legislative rules. These guidelines would not be binding on federal courts but would be accorded due deference by the judiciary in recognition of the Board’s unique expertise in industrial relations. Ultimately, we conclude, an amended NLRA with more rigorous judicial oversight will restore credibility to the Board and lead to more effective vindication of the federal labor law rights of individuals, employers, and unions.
Keywords: labor, relations, employment, NLRA, NLRB, employees, unions, employers, rights, dispute resolution, ADR, workplace
JEL Classification: K10, K19, K30, K31
Suggested Citation: Suggested Citation
Eigen, Zev J. and Garofalo, Sandro, Less is More: A Case for Structural Reform of the National Labor Relations Board (September 23, 2013). Northwestern Public Law Research Paper No. 13-31. Available at SSRN: https://ssrn.com/abstract=2329963 or http://dx.doi.org/10.2139/ssrn.2329963