The NLRB in a Post-Loper Bright Administration

Originally published by The Federalist Society.

If Mel Brooks had written The Parable of the Prodigal Son, he might have titled it, “The Parable of the Very Unlucky Calf”—same basic facts, but a very different perspective. And that mostly explains how union and employer advocates disagree about the role and discretion of the National Labor Relations Board. The Board’s Biden-appointed majority and General Counsel Abruzzo were hailed by those who read the National Labor Relations Act to grant the Board broad, minimally reviewable discretion to increase union representation and to enhance union bargaining power. Not so much by folks who see the Board as a neutral police agency protecting employees from employer and union abuses.

For decades, beginning well before Chevron, the Board has received extraordinary judicial deference to its statutory interpretations. How much of that deference survives Loper Bright may soon be determined. And given the change in administrations, unions may soon find themselves arguing that no deference is due, and that only the best textual reading is permissible. Here’s why.

Republican Members and General Counsel have traditionally critiqued their Democratic counterparts harshly for straying too far from precedent, in the interest of stability in the law. But new Members and General Counsel may consider themselves to have been freed from that traditional constraint by the fundamental statutory reimagining of the Biden Administration Board. If so, they might take similarly momentous steps to promote their differing view of the NLRB’s role.

For example, the new majority might apply Taft-Hartley amendments that the Board in recent years consistently has ignored or minimized, enabled by judicial deference. The General Counsel might—in another departure from recent practice—conduct unfair labor practice adjudication in compliance with the Federal Rules of Evidence and Civil Procedure “so far as practicable.” The new Board could countenance only those evidentiary presumptions that a court would apply under Evidence Rule 301. It might require Civil Procedure Rule 26(a) initial disclosures and allow pretrial discovery, subject subpoenas to Civil Procedure Rule 45 requirements, and rule on summary judgment motions in compliance with Civil Procedure Rule 56. The new Board might treat Section 8(c) as a powerful First Amendment proxy. It could breathe new life into Section 2(3)’s distinction between employees and independent contractors and Section 2(11)’s categorical exclusion of “supervisors.”

The new majority and General Counsel could jettison General Shoe, preferring a plain reading of the Act that allows the Board to remedy unfair labor practices that alter representation case outcomes, but that does not recognize a distinct class of objectionable conduct that is not an unfair labor practice.

The new Board majority might align the discrimination proof standard under Section 8(3) with the Title VII discrimination proof standard.

And, especially in light of SEC v. Jarkesy, the new majority might close the door to parties seeking to stretch the Board’s unfair labor practice jurisdiction to avoid judicial or arbitral resolution of contract breach claims.

On each point, the Board might find itself arguing that there exists a substantial reservoir of pre-Chevron judicial deference from which reviewing courts should draw to affirm the Board’s new interpretations. Objecting union counsel might become born-again textualists.