The NLRB In a Post-Chevron World

Jason Vazquez

Jason Vazquez is a staff attorney at the International Brotherhood of Teamsters. He graduated from Harvard Law School in 2023. His writing on this blog reflects his personal views and should not be attributed to the IBT.

Early next year, in Loper Bright Enterprises v. Raimondo, the Supreme Court is set to decide whether to overrule its decision in Chevron, U.S.A., Inc. v. NRDC. Chevron established the principle, now a bedrock of administrative law, that judges must defer to a regulatory agency’s “reasonable” interpretation of an ambiguous provision in a statute which Congress charged it with implementing. In theory, this doctrine—which in recent years has surfaced as a primary target of conservative legal thinkers—strips a significant degree of policymaking authority from the unelected judiciary and vests it instead in more politically accountable agency officials. Abandoning Chevron would thus significantly augment conservative judges’ capacity to stymie federal regulators across a vast array of policy domains, including environmental protection, labor rights, workplace safety, public health, food and drug integrity, commercial competition, financial markets, energy production, and consumer protection. Although scholars have pointed out that reactionary jurists’ rhetorical denunciations of the administrative state have so far exceeded the Supreme Court’s inclination to actually curtail it, many suggest that the Justices appear likely to ultimately upend the Chevron regime this Term. If Chevron deference is narrowed or eliminated, what would that mean for the NLRB?

Nearly every provision of the NLRA, a broadly drafted statute characteristic of the New Deal era, permits considerable elucidation, and in adjudications and rulemakings the NLRB frequently redefines the scope of the law’s coverage, protections, and proscriptions. It is not unreasonable for proponents of labor power to fear that by expanding the policymaking capacity of a judiciary generally hostile to workers’ interests, overturning Chevron may prove detrimental to the labor movement. Although such anxieties are far from baseless, there are indications that abolishing Chevron may not significantly reshape the NLRB’s existing role in formulating national labor policy.

To begin with, the NLRB is a deeply politicized administrative agency. Board members, who are routinely enlisted from the ranks of either the management- or labor-side bar, all but explicitly reinterpret the Act in accordance with the ideology of the president who appoints them. For a recent example, the Biden Board issued a new rule last month redefining § 2(2) of the statute to enlarge the scope of joint-employer status, displacing the standard promulgated by the Trump Board, which in turn supplanted that enunciated by the Obama Board. Moreover, scholarship suggests that the federal courts tend to adopt an equally ideological posture when reviewing the Board’s actions. Thus, the panel of the D.C. Circuit which upheld the Obama Board’s expanded joint-employer rule featured two Democratic-appointed judges in favor and one Bush appointee dissenting. This sort of partisan pattern has characterized the judicial review of many of the Board’s leading policy changes. In 2019, for instance, an appellate panel invalidated Trump Board regulations lengthening the union election process, a 2-1 decision with both liberal judges in the majority and a Republican in dissent. In 2013, three Republican-appointed judges struck down the Obama Board’s rule obligating employers to post notices in the workplace detailing employees’ § 7 rights. Moreover, many of the Supreme Court’s landmark labor decisions in the wake of Chevron display a similar dynamic, with Democrat-appointed justices on the side of labor and their Republican-appointed counterparts on that of management.

Such cases reflect the reality, which legal scholars have long identified, that “[p]olitical commitments significantly influence” judicial review of NLRB decisions. Indeed, academics have exposed that the courts of appeals are significantly more likely to affirm the legality of ideologically consistent Board decisions than they are of inconsistent ones, and vice versa. Thus, one recent study uncovered that while the Board’s antilabor statutory interpretations have prevailed nearly ninety percent of the time when subject to scrutiny by Republican-controlled courts, Democratic-majority panels have invalidated such constructions in a majority of cases. Most strikingly, these figures represent proceedings in which the courts expressly invoked Chevron deference—something they often decline to do even where the doctrine is applicable. If Chevron did what it purports to do, it would presumably preclude judges from being so plainly animated by ideological impulses when reviewing the Board’s policy decisions.

To be sure, the most salient question is not necessarily the extent to which courts in general sustain Board interpretations that depart from their ideological proclivities, but rather whether they are relatively more likely to do so where Chevron governs. Yet in this respect as well Chevron fails to yield its desired result. This reality is attributable largely to the fact that both appellate judges and Supreme Court justices reviewing Board decisions often eschew the Chevron framework entirely, something especially true of those jurists hostile to labor. According to one survey, in cases involving the NLRB, all-Republican panels invoked Chevron only fifteen percent of the time the doctrine should have applied. As an example, Andrew highlighted on this blog last month that a Third Circuit panel, controlled by Bush appointees, recently ignored Chevron to reverse the Board and flout the longstanding principle that a CBA’s provisions form the post-expiration status quo. For an even more recent example, no more than a couple weeks ago conservative judges on the Fifth Circuit set aside the Board’s ruling that wearing union shirts at the workplace constitutes protected activity absent so much of a single mention of Chevron. In short, judges often sidestep Chevron in reviewing NLRB decisions, and, as these cases illustrate, they have proven quite unlikely to sustain Board interpretations that conflict with their ideological predisposition when they do so. Indeed, in such cases Republican-majority panels have upheld the Board’s pro-labor interpretations only about 35 percent of the time.

In any event, as a threshold issue it is not entirely clear that Chevron meaningfully overhauled the standards governing judicial review of the NLRB’s statutory constructions in the first place. In fact, the Supreme Court enunciated a sweeping theory of judicial deference to the Board’s policy preferences less than a decade after FDR signed the Wagner Act into law. The responsibility to elaborate the NLRA’s terms, the Court declared in 1944, “has been assigned primarily to the agency created by Congress to administer the Act.” Accordingly, resolving statutory questions “belongs to the usual administrative routine of the Board.” Reaffirming this principle three decades later, the Court ruled that since “[i]t is the Board on which Congress conferred the authority to develop and apply fundamental national labor policy,” any implementing rule the agency adopts “is judicially reviewable for consistency with the Act, and for rationality.” In a word, the high court instructed lower federal judges to accord the Board interpretive deference long before Chevron. That they nonetheless frequently fail to do so merely underscores that dethroning Chevron might not appreciably alter the status quo.

Chevron is, to be sure, far from meaningless—all told, courts remain more likely to uphold Board decisions which they ideologically oppose when applying the doctrine. Moreover, Chevron retains significant ramifications for the prospects of progressive regulatory initiatives in other policy domains. Yet given federal judges’ remarkable proclivity to invalidate Board decisions that contravene their political predilections, together with the degree to which they decline to invoke Chevron at all when assessing the legality of the Board’s policy determinations, it is conceivable that, for better or for worse, the NLRB’s existing capacity to shape labor policy may not prove dramatically reimagined in a post-Chevron legal landscape.

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