In case you missed it, the Fifth Circuit recently held that any employer charged with violating the National Labor Relations Act is entitled to an injunction to block any hearing from going forward.  The Fifth Circuit’s theory is that the NLRA is unconstitutional because Administrative Law Judges do not act at the direction of the President.  This comes on top of the Supreme Court’s ruling that Donald Trump is likely to succeed with his argument that the job security protections that the NLRA provides for Board Members are unconstitutional.  If the Court rules that Board Members are subject to the direction of the President, I don’t see how the National Labor Relations Board can continue to adjudicate cases.  So, at a minimum, Congress is going to have to amend the NLRA.

In a recent post, Samuel Estreicher, G. Roger King, and David Sherwyn offered a suggestion for amending the NLRA in light of the Supreme Court’s anticipated final ruling in the Wilcox v. Trump case.  Their proposal would replace the current five-member Board with a new six-member Board consisting of two Republicans, two Democrats, and two independents.  The new Board would lose its authority to engage in rulemaking, and it would need four votes to overrule precedent.  Estreicher, King, and Sherwyn argue that without rulemaking authority, Supreme Court precedent would allow the Board Members to maintain their current for-cause job protection.  Maybe.  But, even if that’s true, their proposal would essentially create a Potemkin Board that serves little purpose.  When Congress enacted the NLRA, the idea was that the Board, rather than the courts, would have the “special function of applying the general provisions of the Act to the complexities of industrial life.”  Instead, they seem to envision a Board that does not make policy, but just adds another layer of review between Administrative Law Judges (ALJs) and circuit court judges.

If the Supreme Court is going to insist upon rigid distinctions between the executive, legislative, and judicial branches, there is a better way to rewrite the NLRA that would recognize the need for decision makers with expertise in the field.  Congress could look to the model that exists for monetary claims against the federal government.  Instead of those cases going to federal district courts across the country, Congress has channeled all of those cases into the federal court of claims.  And, appeals from the court of claims are also heard by a specialized court — the Federal Circuit.  Congress could do the same for cases arising under the NLRA.  Under this proposal, instead of unfair labor practice cases being heard by ALJs, they would be heard by the judges at the new federal labor court.  And appeals from those decisions would go directly to the new Labor Circuit.  Congress might also consider creating a private right of action to allow workers to file suits for violation of the NLRA directly with the labor court, but this proposal works whether or not Congress creates a private right of action.

I think it would make sense to maintain a Board, or maybe just a single director, responsible to the President, with more limited powers.  The new Board would have rulemaking authority, and without the burden of adjudicating unfair labor practice cases, it could use that authority to focus on matters such as revisiting the 1995 era proposal that would have declared single site units appropriate as long as there were 15 employees at the site, no other site within a mile, and a supervisor on-site.

One benefit of this approach is that the next President could name all of the judges to the new federal labor court and the Labor Circuit.  I’d like to see a 2028 Presidential campaign where the Democratic candidate goes around the country promising the creation of labor courts that will actually enforce the NLRA.  This idea would solve many of the problems that Estreicher, King, and Sherwyn identify, as well as other widely recognized flaws with our current system.  With lifetime appointments to the Labor Circuit, there would be less frequent policy oscillation.  And with one circuit court to hear all the labor cases, the agency would no longer have a reason to refuse to acquiesce to circuit court rulings and we would no longer see the kind of forum shopping that allows a court based in New Orleans to hear cases arising in California.  This proposal would also speed up the enforcement process.  First, the judges in the new labor court would have the powers of federal district court judges.  Thus, they could issue preliminary injunctions, eliminating the current two-track process where, in order to obtain a preliminary injunction, the NLRB’s General Counsel has to present the same facts to both a district court judge and an ALJ.  The labor court judges would also have the power to hold parties and lawyers in contempt, minimizing some of the game-playing that too often occurs in NLRB proceedings.  And, sending these cases to a specialized Article III court would also eliminate the entire debate over the scope of Loper Bright as applied to the NLRA.  If Congress can’t delegate to an agency the “difficult and delicate responsibility” of interpreting a statute to effectuate national labor policy, it can at least give that responsibility to judges who are labor law experts.