Construing the National Labor Relations Act: The NLRB and Methods of Statutory Construction

Abstract

In this “age of legislation,” theories of how judges should construe statutes have received considerable attention. This focus on judges, however, fails to appreciate that most of the government's statutory construction is by administrative agencies. And because courts are expected to defer to agency constructions of statutes, agencies often have the final say on what a statute means. This Article addresses statutory construction by the National Labor Relations Board (“NLRB”), the agency that administers the National Labor Relations Act. This Article discusses administrative agencies and statutory construction and demonstrates that administrative agencies should not use any of the theories of statutory construction currently advocated by jurists, other than to determine if Congress's intent on the interpretive question is clear and, if not, to identify permissible constructions of the statute. After identifying the permissible constructions of the statute, an agency, instead of using any of the theories of statutory construction currently advocated by jurists, should eschew interpretive tools, such as examining statutory text and congressional intent (except when necessary to determine the statute's general purpose), and should select the interpretation it believes best promotes the statute's purpose. However, because no statutory purpose should be pursued at any cost (and thus relevant policies and principles external to the statute must be identified), and because a statute will often have competing purposes (the relative importance of which were not clearly specified by Congress), an administrative agency must assign weight to those purposes, policies, and principles. This in turn means an agency in many cases should, and will, select the construction it believes is best for society. This model of statutory construction gives an administrative agency more discretion than any of the theories of statutory construction currently advocated by jurists, and essentially gives the agency lawmaking power when construing a statute. Drawing on this model of administrative agency statutory construction, this Article addresses how the NLRB should approach statutory construction.

Keywords: NLRB, National Labor Relations Act, statutory construction

JEL Classification: K22, K40