Minnesota Law Review

Less Is More: A Case for Structural Reform of the National Labor Relations Board

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.

:: View PDF

News & Events

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]

  • Vol. 97 Lead Piece Cited in Al Jazeera Opinion Piece

    A recent Al Jazeera opinion piece that criticizes the Supreme Court’s Daimler decision cites to Volume 97′s lead piece, How Business Fares in the Supreme Court. You can read the Al Jazeera piece here. Share this: on Twitter on Facebook on Google+

  • Masthead for Volume 99 Board

    The masthead for the Board of Volume 99 of the Minnesota Law Review is now available. You can view the masthead here. Share this: on Twitter on Facebook on Google+

  • Above the Law Post Highlights MLR‘s Jump in Journal Rankings

    A recent post on Above the Law highlights the fact that the Minnesota Law Review was ranked 11th in the most recent 2013 edition of the Washington & Lee Law Review Rankings. You can read the post here. Share this: on Twitter on Facebook on Google+

Newsletter

cforms contact form by delicious:days