This post is a response to Andrew Strom’s post, Why Not a Real Labor Court?

In order to preserve the vital role the National Labor Relations Act of 1935 (NLRA or Act) and its administrative agency, the National Labor Relations Board (NLRB or Board), plays in effectuating the right of workers to form unions of their own and insist on collective bargaining with employers, we have proposed that Congress amend the NLRB to reconstitute the NLRB as a purely adjudicatory body (the Labor Court or court) that would be shorn of executive functions that the NLRB has historically delegated to the agency’s General Counsel (GC), now a presidentially removable position. The GC would have the sole authority to issue complaints, prosecute the complaint before an ALJ (appointed and removable for cause by the court), supervise the Regional Directors and all representation proceedings, and seek preliminary injunctive relief in federal district (after a one- or two-day hearing before an ALJ).  Appeals in complaint or representation cases would be heard by the Labor Court. Review of the latter’s decisions would be had in the courts of appeals. Under our proposal, if the court does not issue a ruling within a year, the charging party or respondent could file suit in federal court.

The Labor Court would be comprised of six members appointed by the President with the Senate’s consent: two Democrats, two Republicans, and two Independents (who have not represented or advocated in court filings for labor or management interests and have a reputation for neutrality). They would sit for six-year terms staggered so that the next President could appoint a majority soon after the midterm elections. They would be removable before expiration of their terms only for cause (as currently defined). The court would sit in panels of three, but any member could ask for full bench review. Any reversal of (NLRB or Labor Court) precedent would require four votes.   

Our proposal has three objectives: First, we are urging a structure for the agency that is likely to pass constitutional muster because core executive functions are lodged with the politically removable GC.  The President, we fully appreciate, may still take the view that all “policy” decisions pursuant to law have to be made by the President or delegatees. But because all courts, including likely all Article I tribunals like the Tax Court, Court of Federal Claims (misnamed the “court of claims”), the Court of Veterans Appeals, the Immigration Courts, and our proposed Labor Court, make “policy” in the interstices of statutes if precedent is unclear or overruled, the Supreme Court is not likely to adopt this position; the Justices will not be receptive to effectively requiring an ever-burgeoning Article III judiciary with life tenure. Second, we envision a body less likely to engage in the kind of extreme policy oscillation between administrations that undermines the certainly necessary for a culture of compliance and the necessary judicial acceptance of the the agency’s work. Finally, we are trying to keep as much of the administrative structure that regulated parties, the courts, and Congress are familiar with and will receive nontrivial bipartisan support. 

Andrew Strom’s post, “Why Not a Real Labor Court,” urges Congress to create “a real labor court,” not a “Potemkin Board.” The author proposes an Article III court whose members would enjoy life tenure absent cause. The new President would appoint these judges with Senatorial consent. Although the piece may not be intended as a comprehensive proposal, some questions come immediately to mind.  What would be the criteria for appointment? Would there be an attempt to maintain a labor-management or Democratic-Republican balance? The members of this court, we are told, would “have the powers of federal district court judges.” Would employees, unions,  and employers be able, or indeed have the Seventh Amendment right, to demand a civil jury trial? Further, what would be the approach to representation cases, and how would this Article III court handle representation issues arising in the Board’s regional offices? Are these all to be done by Article III judges using masters or special referees?

While we applaud the author’s consideration of an adjudicative body, we have several concerns with this proposal. First, as far as we can tell, there is no political appetite in Congress or its environs to appoint a new, large corps of Article III judges even if the same party were to capture the presidency and the Senate. Will this also lead to Article III veterans, immigration, patent courts, even military courts? All adjudicators, it is true, would benefit from Article III tenure protection, but at what cost? 

There are also significant questions about the wisdom of an Article III court having only limited subject matter jurisdiction. The “court of claims” (since 1984, the Court of Federal Claims) Mr. Strom highlights is a venerable Article I court whose members sit for a 15-year term as single judges hearing only monetary claims against the Government. The judges on this court do not have authority to issue equitable relief or convene a jury trial. (A fifteen-year terms, to our mind, seems excessively long but we do not oppose it in principle. It, will, however, freight politically the process of appointing these judges.) A court with exclusive nationwide venue, also advocated by the author, would create considerable pressure on the Supreme Court to intervene on its emergency docket, as now occurs with nationwide preliminary injunctions.  

We also question how the new court would interact with administrative involvement in ALJ complaint cases and representation cases (the latter is not considered in the proposal). If we deal only with complaint cases, these will probably require lengthy trials, if ALJ proceedings are any guide; there is no reason to believe they will be quicker in a Article III tribunal. These will be largely fact-specific proceedings. Charging parties and respondents would have to secure private counsel. Who will pay for any masters or special referees? Will these judges have the necessary experience with the statute and its administration?  Is experience or expertise no longer required or useful?

Further, it is unclear how the appellate process would work. Would the GC have authority to unilaterally pursue appeals? Again, we welcome all ideas for restructuring of the Board. If we may, we suggest that working with some version of our proposal as a base might prove more productive.