The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform

By Fisk, Catherine L.; Malamud, Deborah C. | Duke Law Journal, May 2009 | Go to article overview
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The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform

Fisk, Catherine L., Malamud, Deborah C., Duke Law Journal



I.    An Overview of the Bush II Board
       A. Constraining the Availability of Voluntary Recognition
       B. Narrowing the Scope of Concerted Activity for Mutual
            Aid and Protection
          1. Section 7 Protection for Union Activity
          2. Section 7 Protection for Concerted Activity Unrelated
                  to Unions
          3. The Overlap Between Political and Labor Activism
          4. Exclusion of Workers from Statutory Protection
                  through a Narrow Definition of "Employee"
       C. Enforcement and Remedies
          1. Section 10(j)
          2. Adjudication Policies and Remedies in Duty to
                  Bargain Cases

II.   The Bush II Board and the Hybrid NLRA
       A. Statutory Interpretation of the Hybrid NLRA: Bounded
       B. Law versus Policy under the NLRA
       C. The Bush II Board's Fundamental Policy Conflict
       D. Ideology and Policy Change under the NLRA

III.  The Built-In Limits of the NLRB as a Policymaking Agency.
       A. The Early War against Board Policymaking and
            Social-Scientific Expertise
       B. Independence as Isolation
       C. Choice of Appointees as a Limit on the Board's Scope of
       D. Rights-Balancing versus Regulation

IV.   Case Studies of the Quality of the Board's Reasoning
       A. Weighing Elections and Voluntary Recognition: Dana
            Corporation and Levitz
       B. Adapting Old Rules to New Circumstances--Register-Guard
            and the Student-Employee Cases
          1. Email and Section 7 Activity
          2. Graduate Students, Residents, and Interns

V.    What Is to Be Done?
       A. For the Board
       B. For the Executive
       C. For Congress
       D. For the Courts of Appeals
       E. For the Supreme Court


The great hope of administrative law in the New Deal was that expertise and professionalism, balanced by political accountability and careful institutional design, would yield the best possible governance in a decidedly imperfect world. Administrative agencies were to step in where both the judiciary and the legislature had failed, avoiding the dangers of government by plutocracy and government by patronage) Agencies would discharge government's "responsibility not merely to maintain ethical levels in the economic relations of the members of society, but to provide for the efficient functioning of the economic processes of the state." (2) To do so, they would study social and economic problems thoroughly and regulate wisely relying on scientific or empirical information that courts and legislatures did not consider. (3) Moreover, they would provide a forum in which the stakeholders in a regulated industry could participate in resolving disputes. (4) Sensible policy would emerge through careful and inclusive procedure, reliance on experts and empirical evidence, and political accountability for value choices. (5) Agencies would be responsive to changing circumstances and innovate when necessary, but they would do so with a healthy respect for the rule of law and the value of process. (6)

One can find in the early discussion of administrative law particularly high hopes for the National Labor Relations Board (NLRB). James Landis, in his classic 1938 lectures on the administrative state, said the NLRB had as its "jurisdiction the general problem of unfair practices" regarding labor and had as its responsibility the "policing of industry as a whole," not merely, as in the case of other agencies, the "supervision over the welfare of a definable line of business." (7)

Unfortunately, the NLRB is not well suited to the regulatory task of bringing public-minded rationality to the processes of labor organizing and collective bargaining. From the agency's beginning, the Supreme Court has sharply limited the Board's range of policy discretion in the name of judicial supremacy in the interpretation of statutes.

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The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform


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