Judicial Control of the National Labor Relations Board\u27s Lawmaking in the Age of Chevron and Brand X

This article analyzes and applies to Labor Board decision making the Court’s oft-cited 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. The article argues that judicial review of Board decision making under Chevron, though limited, can still be sufficiently meaningful to control excessive shifts in Board lawmaking criticized by many commentators. The article explains why recent Supreme Court decisions reject any distinction between two theoretically distinct forms of agency discretionary lawmaking – (1) lawmaking through construction of the direct force of an ambiguous statute: and (2) lawmaking through the elaboration of law beyond that which is embodied in the statute. Both forms of lawmaking are subject to an arbitrary or capricious standard of review. This standard of review allows the courts to require the Board to do more than simply defend its doctrinal reversals or reformulations with plausible interpretations of ambiguous statutory language. Regardless of whether the Board proceeds by adjudication or by rulemaking, the courts can require it to consider all important aspects of the policy decision that its construction addresses, including the impact the decision may have on the world the agency regulates in light of relevant contemporary circumstances. The courts can require the agency to address the evidence before it and can sometime demand that it take reasonable steps to garner additional evidence. Such review does not prevent an agency like the Board from reversing any significant policy decisions; but it can slow the oscillation of policy to ensure that adopted changes have greater legitimacy, and it can stabilize agency-formulated law in cases where empirical evidence resists the agency’s assumptions. The article applies and develops this analysis through application to five significant decisions of the Bush-appointed Labor Board. These decisions concern: the exclusion of graduate student instructors from protection as employees; the treatment of jointly-employed employees in Board approval of bargaining units; the chilling of concerted activity through neutral employer rules; the application of Weingarten rights in the non-union sector; and the definition of the supervisory exclusion from protected employee status