Historically, the National Labor Relations Board (NLRB or Board) has interpreted the unfair labor practice provisions of the National Labor Relations Act (NLRA or Act) primarily through the adjudication of individual cases involving charges against employers or unions. Because control of the Board shifts back and forth with changing administrations, this process of making law through case-by-case adjudication has had relatively disastrous results. Employers and unions complain about frequent reversals of precedent when the Board invariably changes composition along political lines. This leads to uncertainty and unnecessary costs associated with efforts to comply with the ever-shifting rules. The rabid politicization of the NLRB has eroded its legitimacy and made it difficult to maintain a fully constituted and validly appointed Board. In recent years, this has led to the retroactive invalidation by the Supreme Court of numerous decisions of the Board due to the absence of a lawful quorum; and currently the Supreme Court is considering the status of more than a thousand other decisions that may be retroactively invalidated due to unconstitutional recess appointments. We posit that these serious defects could be cured by curbing the Board’s decisional authority. This article proposes amending the NLRA to eliminate the NLRB’s adjudicative function in unfair labor practice cases and transferring that responsibility to federal district courts, while preserving the Board’s core competencies: (1) conducting elections and resolving representation issues, and (2) investigating (and re-solving short of litigation) unfair labor practice charges. Under this model, the Board would continue to have rulemaking authority. However, the Board would be encouraged to rely on administrative guidelines, similar to those adopted by the Equal Employment Opportunity Commission (EEOC), instead of legislative rules. These guidelines would not be binding on federal courts but would be accorded due deference by the judiciary in recognition of the Board’s unique expertise in industrial relations. Ultimately, we conclude, an amended NLRA with more rigorous judicial oversight will restore credibility to the Board and lead to more effective vindication of the federal labor law rights of individuals, employers, and unions.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association.F The Court overturned the D.C. [...]