Sharon Block writes that after Loper Bright, there remain many questions about how the courts will treat the discretionary rulemaking authority of the National Labor Relations Board to protect workers’ right to choose to join unions and act collectively. While precedent suggests the NLRB could retain most of its power to issue and enforce rules, the recent history of a Supreme Court that has shown little favor toward workers or government intervention suggests a narrower reading of the NLRB’s authority may be coming.
Editor’s Note: This article is part of a series that explores how Loper Bright and the end to the Chevron deference doctrine will impact the ability of the federal agencies to regulate the economy. You can read the other articles in the series here.
In Loper Bright Enterprises v. Raimondo, the Supreme Court answered one big question: was its 1984 decision, Chevron USA v. National Resources Defense Council, which established the principle that courts should defer to federal agencies’ reasonable interpretations of ambiguous laws, still good law? To nobody’s surprise the Court’s answer was a pretty clear “no.” But as the summer has worn on, many additional questions have surfaced about the discretion that federal agencies have to issue rules to protect our health, safety and well-being. The answers to these second-order questions are much less clear, but they are foreboding.
For American workers, one big unanswered question is what this sea change in the allocation of power between the courts and federal agencies means for the National Labor Relations Board, the federal agency charged with protecting workers’ right to choose whether or not to be represented by a union. To answer this question, we need to look at the clues that the Court provided about how it will apply Loper Bright to different kinds of statutes.
In its simplest form, the Court’s new framework imagines at least three scenarios it may confront post-Chevron. One scenario involves cases arising from agency interpretations of statutes that pose only legal questions and where the Court finds no textual evidence that Congress intended to provide the agency with discretion to interpret the text, even if Congress enacted a statute with ambiguous terms. It is not always clear what cases involve “only legal questions,” but in such cases, the Court arrogates to itself the authority to determine “the best reading” of the statute and that interpretation will prevail. Gone is Chevron’s presumption that Congress intended agencies to fill in statutory ambiguities with their choice of reasonable interpretations as informed by the expertise of social scientists, epidemiologists, or economists. It seems safe to say that at least when acting in its adjudicatory role—that is, when it is deciding cases and not promulgating regulations—the NLRB will usually not fit into this first category because the National Labor Relation Act’s (NLRA) includes several nods to Congress’s respect for the NLRB’s labor expertise.
Next, the Court contemplates cases in which Congress “empowered an agency to decide how to apply a broad statutory term applied to specific facts found by the agency.” In such cases where the law and facts are intertwined, the Court will employ a more deferential standard. Helpful to the task of predicting the applicability of this more deferential standard to the NLRB is that the Court cited in Loper a case involving the agency—Hearst Publications v. NLRB (1944)—to illustrate this category of cases. So, we know that when the NLRB is applying the NLRA’s broad terms to a particular set of facts—in Hearst, it was applying its definition of “employee” to newsboys—the Court will accord the NLRB’s interpretation at least some deference. Unhelpful to prognostications about how cases will come out post-Chevron is that the Court leaves much unsaid about this category. How broad must the term be that the NLRB is applying—we don’t know. How intertwined must the particular facts be with the NLRB’s legal judgement—not clear. But we know that when it comes to NLRB cases, this category is not a null set.
Finally, while still keeping for itself the ultimate authority to define the best reading of a statute, the Court concedes that the best reading may be that Congress intended to “grant discretionary authority to an agency” to interpret a statute. Faced with such Congressional intent, the Court describes its role as “fixing the boundaries of the delegated authority, and ensuring the agency has engaged in ‘reasoned decision-making,’ within those boundaries.” Again, the Court’s citation to an NLRB case to support this point helps with the prediction that the Court believes that Congress has delegated to the NLRB at least some discretionary authority. But again, as with so much of the Loper Bright decision, many questions remain. What are the boundaries that the Court believes Congress erected around the NLRB’s discretionary authority? Does that authority pertain to all aspects of the NLRA or only some provisions? We don’t know.
Where else can we find evidence of how the Loper Bright decision will impact NLRB cases? We can look to how the Court treated the NLRB’s authority before Chevron. These clues look promising for some continued deference to the NLRB’s interpretations. For example, in Ford Motor Co. v. NLRB (1979), a case decided five years before Chevron, the Court held that if the NLRB’s “construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute.” The Court based this holding on its conclusion that “It is [] evident that Congress made a conscious decision to continue its delegation to the Board of the primary responsibility of marking out the scope of the statutory language.”
But before we get too confident in making predictions about how this Court will view NLRB decisions in this moment, it is important to remember that much about the Court has changed since 1979 when Ford Motor Co. was decided. Not a single member of the Ford Motor Co. Court still sits on the bench. Moreover, the justices that now sit on the bench have long been aggrandizing their own power at the expense of agency discretion. In this vein, another important question that lurks is how Loper Bright will interact with the Court’s adoption a few years ago of the Major Questions Doctrine. In West Virginia v. EPA (2021), the Court announced that going forward it would invalidate any agency regulation that was not based on a specific delegation from Congress if that regulation addressed an issue of major economic or political significance. The question following Loper Bright is whether the Court will still apply the Major Questions Doctrine or does Loper Bright supersede it? For the NLRB, the question is, even if Ford Motor Co. is still good law, does it now only apply to issues decided by the NLRB that are not of major economic or political significance?
There’s a lot about the future of the courts’ review of NLRB decisions that we don’t know. What we do know is that companies, backed by employer trade associations, will continue to use their deep pockets to advocate for as narrow as possible a reading of the NLRA and the deference the NLRB should be accorded by the courts. Already, one employer, Valley Hospital Medical Center, has asked the Supreme Court to overturn an NLRB decision—one that had been upheld by the Ninth Circuit—based on Loper Bright. And in a late August opinion, the Sixth Circuit Court asserted that it would no longer defer to NLRB interpretations of the NLRA, relying on Loper Bright. In that case, Rieth-Riley Construction v. NLRB, however, the Sixth Circuit found that the NLRB’s interpretation of the NLRA was consistent with the court’s independent best reading of the statute and enforced the NLRB’s order in full.
We also know that the greater threat to workers’ right to organize comes from cases making their way through the lower courts, no doubt on their way to the Supreme Court, that argue that the structure of the NLRB is unconstitutional and, therefore, that no employer anywhere should have to do anything that the NLRB says. These cases are based on a Fifth Circuit case, SEC v. Jarkesy (2022), in which that court found that the structure of the Securities and Exchange Commission, which is similar to the NLRB in using in-house administrative law judges to adjudicate cases brought by agency staff, is unconstitutional. (This past term, the Supreme Court affirmed another part of the Fifth Circuit’s Jarkesy ruling but left untouched the question about the constitutionality of the SEC’s structure.) Already, two district courts— the Southern District and the Western District—in Texas have applied the Fifth Circuit Court’s Jarkesy decision to hold that the NLRB can’t process cases involving employers in Texas. That effectively means that workers in that state have lost protection for their right to choose to join unions.
But Jarkesy isn’t even the greatest threat to workers’ rights under the NLRA. The greatest threat to these rights is not the application of a particular doctrine or precedent. It is the presence on the Court of a majority of justices who over the last several terms have proven themselves to be hostile to both the role of the government in protecting the rights of the public, especially when those rights conflict with the interest of corporations, and the role of the labor movement in empowering working people. When presented with a case that could strike at both, we may then see the damage that this Court is willing to do to the NLRA.
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Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
