Judicial control of the national labor relations board's lawmaking in the age of chevron and brand X

Boston University Law Review

Volumn 89, Issue 1, 2009, Pages 189-250

  Harper, Michael C ^a  

^a BOSTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 61349170732     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (375)

1. See, e.g., James J. Brudney, Isolated and Politicized: The NLRB 's Uncertain Future, 26 COMP. LAB. L. & POL'Y J. 221, 223 (2005);
2. William B. Gould IV, Independent Adjudication, Political Process, and the State of Labor-Management Relations: The Role of the National Labor Relations Board, 82 IND. L.J. 461, 470-77 (2007);
3. Jonathan P. Hiatt & Craig Becker, At Age 70, Should the Wagner Act Be Retired?, 26 BERKELEY J. EMP. & LAB. L. 293, 295-98 (2005);
4. Wilma B. Liebman, Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board, 28 BERKELEY J. EMP. & LAB. L. 569, 580-88 (2007).
5. See, e.g., Brudney, supra note 1, at 250-52;
6. Kenneth R. Dolin, Estreicher Urges Reforms to Address NLRB "Policy Oscillation," 2005 A.B.A. SEC. LAB. & EMP. L. 2, 2;
7. Claire Tuck, Note, Policy Formulation at the NLRB: A Viable Alternative to Notice and Comment Rulemaking, 27 CARDOZO L. REV. 1117, 1118 (2005).
8. See, e.g., Andrew M. Kramer, The Clinton Labor Board: Difficult Times for a Management Representative, 16 LAB. LAW. 75, 80 (2000);
9. Bernard D. Meltzer, Organizational Picketing and the NLRB: Five on a Seesaw, 30 U. CHI. L. REV. 78, 78 (1962);
10. Edward B. Miller, NLRB Forum: Strikes, Lockouts, and Boycotts, 51 LAB. L.J. 89, 95 (2000).
11. See Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 ADMIN. L. REV. 163, 170 (1985);
12. see also Merton C. Bernstein, The NLRB's Adjudication-Rule Making Dilemma Under the Administrative Procedure Act, 79 YALE L.J. 571, 590 (1970);
13. Charles J. Morris, The NLRB in the Dog House - Can an Old Board Learn New Tricks?, 24 SAN DIEGO L. REV. 9, 29-41 (1987);
14. Cornelius J. Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 YALE L.J. 729, 760 (1961).
15. National Labor Relations Act § 6, 29 U.S.C. § 156 (2000) ("The Board shall have the authority⋯to make, amend, and rescind⋯such rules and regulations as may be necessary.").
16. But see Ronald Turner, Ideological Voting on the National Labor Relations Board, 8 U. PA. J. LAB. & EMP. L. 707, 761 (2006) (positing that where a Board ruling appears to be the product of "management or union-inclined members favoring unions or employees,⋯reviewing courts should take a hard look at the basis or bases for the agency's ruling").
17. There is a consensus that the Bush-appointed Board's significant decisions have generally favored management interests. See sources cited supra note 1. This is certainly the view of the critics of the Bush-appointed Board's doctrinal shifts, and there seem to be no dissents from management-aligned lawyers.
18. See, e.g., John N. Raudabaugh, National Labor Relations Board 2007 Year in Review: Fueling Unions' Demand for Euro-Centric Labor Law Reform, 59 LAB. L.J. 16, 17-24 (2008). Professor Turner's analysis of major doctrinal reformulations of the Bush-appointed Board concludes that the opinions in these decisions, like those in many of the significant formulations made by prior Boards, reflect the management or union allegiances of the Board members. Turner, supra note 6, at 711. Since Professor Turner wrote, the Bush-appointed Board has pronounced many other significant doctrinal reformulations in closely divided three-two decisions, with the same alignment of Board members in each case and the majority position at least ostensibly more favorable to management.
19. *1 (Sept. 29, 2007) (requiring the Board's General Counsel to prove an applicant for employment is "genuinely interested" in the employment relationship as an element of a hiring discrimination unfair labor practice claim); Oakwood Healthcare, Inc., 348 N.L.R.B. 686, 686 (2006) (formulating the meaning of terms in the statutory definition of "supervisor" that are exempt from the Labor Act's coverage).
20. See also infra Part II.E for further discussion.
21. 416 U.S. 267(1974).
22. Id. at 294-95. The Court in Bell Aerospace emphasized that "the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency."
23. Id. at 293 (quoting SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)).
24. National Labor Relations Act § 6, 29 U.S.C. § 156 (2000);
25. see Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 617-19 (1991) (applying an arbitrary or capricious standard of review).
26. 467 U.S. 837(1984).
27. Id. at 836-37. This is often articulated as Chevron's "two-step" process. At Step One, the court determines whether the statute is clear. If not, the court proceeds to Step Two, where the court asks whether the construction is "permissible" or "reasonable." See, e.g., STEPHEN G. BREYER, RICHARD B. STEWART, CASS R. SUNSTEIN & ADRIAN VERMEULE, ADMINISTRATIVE LAW AND REGULATORY POLICY 247 (6th ed. 2006).
28. See, e.g., NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787 (1990) (upholding a Labor Board rule "as long as it is rational and consistent with the [Labor] Act"); Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987) (holding "rational" Board rules should be given deference); NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 401-02 (1983) (finding that although the Board's construction of the Act may not be required, it is permissible); Charles D. Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404, 413 (1982) (writing that although the "Board might have struck a different balance from the one it has⋯we cannot say that the Board's current resolution of the issue is arbitrary or contrary to law"); Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501 (1978) (finding that the Board "must have authority to formulate rules to fill the interstices of the broad statutory provisions"); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945) (asserting that the Wagner Act "left to the Board the work of applying the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms").
29. But see Lechmere, Inc. v. NLRB, 502 U.S. 527, 541 (1992) (effectively refusing to give deference, even after Chevron, to the Board's construction of ambiguous statutory language). For further discussion of Lechmere, see infra note 64.
30. 545 U.S. 967, 974 (2005).
31. Id. at 980.
32. Id. at 982.
33. Id. at 981.
34. Id. (citations omitted).
35. As explained decades ago by Judge Winter, there are good reasons to view the Board as the paradigm of an agency that Congress would intend to be responsive to "shifts in the locus of political power." Ralph K. Winter, Jr., Judicial Review of Agency Decisions: The Labor Board and the Court, 1968 SUP. CT. REV. 53, 55. These reasons include, in addition to the "generality of the statutory provisions" in the Labor Act, the "dynamic" nature of collective bargaining, and "the limitations Congress faces in legislating labor law."
36. Id. More recently, Professor Stephenson has argued that rational legislators would be more likely to want lawmaking discretion delegated to an agency rather than to the courts if the lawmakers are willing to sacrifice intertemporal consistency for interissue consistency. Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts, 119 HARV. L. REV. 1035, 1037-38 (2006). This is more likely to be true where legislators and relevant interest groups have longer time horizons and more focused, "narrow" interests, which is often the case in labor-management law.
37. Id. at 1063.
38. 29 C.F.R. § 103.30 (2007) (explicating appropriate bargaining units in the health care industry and providing for Board adjudication in the event of extraordinary circumstances).
39. Excelsior Underwear, Inc., 156 N.L.R.B. 1236, 1239(1966).
40. 5 U.S.C. § 706(2)(A) (2000). The Court in American Hospital Ass n. v. NLRB applied this standard in its consideration of the Board's rule on acute care hospital bargaining units. Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 617-19 (1991). The standard is also applicable to the review of Board-made legal doctrine pronounced in adjudications.
41. See, e.g., Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374-75 (1998) (Scalia, J.) (writing that the Board's "adjudication is subject to the requirement of reasoned decisionmaking" that is applied under the APA).
42. 463 U.S. 29(1983).
43. Id. at 43.
44. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 974 (2005).
45. Id. at 997-1000.
46. Id. at 1000-02. The Brand X Court did state in a footnote that the requirement that the agency provide a "reasoned explanation," as articulated in State Farm, is not part of Chevron review.
47. Id. at 1001 n.4. Whether or not the Court will hold to this doctrinal position seems irrelevant, however, as long as State Farm arbitrary or capricious review can be applied to agency policymaking through statutory construction as it was in Brand X. See infra text accompanying notes 83-84 and note 84.
48. Step One of Chevron looks to whether the "intent of Congress" is "clear" or "unambiguously expressed." Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). For an articulation of Chevron's two-step process, see supra note 12 and accompanying text.
49. The phrase "factual circumstances" is used by the Court in Brand X to explain what might be relevant to an agency considering "varying interpretations and the wisdom of its policy on a continuing basis." Brand X, 545 U.S. at 981 (quoting Chevron, 467 U.S. at 863-64).
50. The court cannot require the Board to formulate new policy or legal doctrine through the exercise of its legislative rulemaking power rather than through adjudication. See supra notes 8-10 and accompanying text. This does not prevent a court, however, from requiring the same kind of support for any doctrinal reformulations pronounced in adjudications that it would require for reformulations made through the informal rulemaking process. A court cannot require the Board to develop that support through any particular supplementary procedures, cf. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council Inc., 435 U.S. 519, 543-44 (1978) (finding that absent statutory or constitutional constraints, agencies "should be free to fashion their own rules of procedure"), but it can require the support to be there. I therefore disagree with Professor Flynn's conclusion that the Board can effectively escape judicial review of its legislative fact-finding by making policy through adjudication.
51. See Joan Flynn, The Costs and Benefits of "Hiding the Ball": NLRB Policymaking and the Failure of Judicial Review, 75 B.U. L. REV. 387, 417 (1995). If a Board majority makes assertions of legislative fact that are disputed by Board dissenters and some parties, and if the adjudication is "devoid of empirical data,"
52. id., a court should be able to require the Board to reconsider its reformulation as readily as if it were reviewing a controversial rule pronounced without adequate evidentiary support.
53. 529 U.S. 576, 587-88 (2000) (finding that opinion letters issued by agencies "do not warran Chevron-style deference" but that interpretations formed through formal adjudication or notice-and-comment rulemaking receive deference).
54. 533 U.S. 218, 230-31 (2001) (deciding that though the lack of the formal notice-andcomment process does not bar Chevron deference, the tariff classification at issue had no formal process, nor did Congress contemplate such classifications as "deserving the deference claimed for them").
55. See, e.g., RONALD A. CASS, COLIN S. DIVER & JACK M. BEERMANN, ADMINISTRATIVE LAW: CASES AND MATERIALS 130-48, 188-201 (5th ed. 2006) (treating Chevron under review of questions of law and State Farm under review of questions of fact or policy); LISA HEINZERLING & MARK V. TUSHNET, THE REGULATORY AND ADMINISTRATIVE STATE 378-88, 438-49 (2006) (treating Chevron under statutory interpretation and State Farm under review of agency rulemaking). A number of texts, while separating their treatment of Chevron review of agency statutory interpretation from that of review of agency policymaking, however, do consider the relevance of State Farm and arbitrary or capricious review to Chevron analysis. See, e.g., BREYER ET AL., supra note 12, at 328-29 (discussing the overlap between Chevron Step Two analysis and "arbitrary or capricious" review in recent D.C. Circuit cases);
56. GARY LAWSON, FEDERAL ADMINISTRATIVE LAW 614-28 (4th ed. 2007) (describing the relationship between Chevron and "arbitrary or capricious" review as a "hot topic" in law reviews and federal reporters); RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 7.4, at 453 (4th ed. 2002) (positing that "courts should use the same approach to answer the question [of agency statutory construction], whether it is characterized as the State Farm test or Step Two of the Chevron test");
57. JOHN M. ROGERS ET AL., ADMINISTRATIV LAW 572 (2008) ("The analysis of reasonableness required by Step II of Chevron may perhaps best be thought of as arbitrary-or-capricious review."). Indeed, while Professor Lawson seems to accept the dichotomy between lawmaking through the construction of ambiguous statutory commands and lawmaking through supplementary rulemaking, infra note 85, Professor Pierce seems to equate the two. RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 7.4, at 145 (rev. 4th ed. Supp. 2007) ("[T]he question whether an agency engaged in reasoned decisionmaking within the meaning of State Farm often is identical to the question a court must answer under Step Two of the test announced in Chevron.").
58. See supra notes 20-21 and accompanying text.
59. National Labor Relations Act §§ 7-8, 29 U.S.C. §§ 157, 158(a)(1) (2000).
60. National Labor Relations Act § 6, 29 U.S.C. § 156 (2000).
61. Justice Breyer uses the construct of a reasonable legislator to formulate his mode of statutory interpretation, asking how a '"reasonable member of Congress[]⋯would have wanted a court to interpret the statute in light of present circumstances in the particular case." STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 88 (2005). Interpretive textualists who reject the relevance of actual subjective legislative intent to statutory meaning may claim the standard for interpretation is not what would be inferred by an idealized reasonable legislator, but rather what would be inferred by any reasonable contemporary reader of the statute.
62. See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (Amy Gutmann ed., 1997) (remarking that courts "do not really look for subjective intent" but rather "the intent that a reasonable person would gather from the text of the law"). In practice, the distinction between a "reasonable legislator" and a reasonable contemporary reader of the statute should probably matter little. Conceptually, however, the understanding of an ideal-type legislator provides a standard that both better illuminates the distinction between legislatively-made and legislatively- deferred law and also better supports the argument that textualism protects the power of democratically elected legislatures.
63. See id. at 17-18 (stating that courts look to objective intent because it is "incompatible with democratic government⋯to have the meaning of the law determined by what the lawgiver meant, rather than by what the lawgiver promulgated"). In order to distinguish the legal doctrine that has been set by the legislature at the time of a statute's passage from that which has been deferred for later decision, it is necessary to tie the statutory text to legislators at the time of passage, if only by positing some sort of constructive intent inferred from the text. Furthermore, the construction of the objectified reasonable legislator ties textual interpretation to the concept of democratically elected legislators. If an ideal-type legislator would read a statute that he or she passed to not decide a particular issue, a court's resolution of that issue based on what it deems to be the most plausible reading of the text is judge-made law (however guided by contemporaneous dictionaries) that cannot claim the legitimacy conferred by a democratically elected legislature. For a thorough treatment of the relevance of different methods of statutory interpretation to Board decision making, see Daniel P. O'Gorman, Construing the National Labor Relations Act: The NLRB and Methods of Statutory Construction, TEMP. L. REV. (forthcoming 2009) (manuscript at 47-53, on file with author). Professor O'Gorman argues that the Board "should not interpret the Act like a court, except for⋯identifying and selecting permissible constructions. ⋯Traditional tools of statutory interpretation - looking at text and congressional intent - should play no role."
64. Id. at 51.
65. Chevron U.S.A. Inc. v. Natural Res. Def. Council Inc., 467 U.S. 845, 843-44 (1984).
66. Id. at 861-62.
67. Id. at 862.
68. Id. at 863. The EPA's construction determined the meaning of the "stationary sources" on which the Clean Air Act required the states to impose air pollution limitations.
69. Id. at 840.
70. Id. at 865.
71. Id.
72. See, e.g., Young v. Cmty. Nutrition Inst., 476 U.S. 974, 980-81 (1986) (holding that while Congress was "speaking directly to the precise question at issue in this case," the ambiguity arose because of poor drafting of the statute). Justice O'Connor's majority opinion expressly recognized that Congress possessed a particular, albeit ambiguous, intent, and thus was not delegating discretion to the Secretary. Id. at 980 (stating she "cannot agree⋯that Congress unambiguously expressed its intent through its choice of statutory language"). Justice O'Connor did not explain, however, why the Secretary was better able to resolve the grammatical ambiguity than she and the other Justices. Id. (finding that the agency's interpretation was "sufficiently rational to preclude a court from substituting its judgment for the FDA"). Moreover, she did not discuss the tension between the authority of courts to determine existing law and her acceptance of the FDA's authority to determine law already set by Congress. For a more refined elaboration of how the ambiguity in Young differed from the type of ambiguity treated in Chevron, see Note, A Pragmatic Approach to Chevron, 112 HARV. L. REV. 1723, 1735-37 (1999) (arguing that the Young Court "wrongly deferred to the agency's interpretation" because the statute "did not create the implicature that the legislature delegated⋯the task of choosing between grammatical readings"). For a discussion of the tension between "judicial abdication" and deference to administrative agencies, see infra note 80.
73. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 516. For a clear example of the first type of ambiguity described by Justice Scalia, see Young, 476 U.S. at 975-76.
74. For example, see Justice Scalia's concurring opinion in INS v. Cardoza-Fonseca, where he objected to the majority's assertion that courts "may substitute their interpretation of a statute for that of an agency whenever they face 'a pure question of statutory construction for the courts to decide.'" INS v. Cardoza-Fonseca, 480 U.S. 421, 454-55 (1987) (Scalia, J., concurring). Justice Stevens's majority opinion assumed the issue in the case - whether the proof standards in two provisions of the Immigration and Nationality Act were the same - must have been decided by Congress and thus was subject to the courts' "final authority."
75. Id. at 448 (majority opinion) ("If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." (quoting Chevron, 467 U.S. at 843 n.9));
76. see also NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 123 (1987) ("On a pure question of statutory construction, our first job is to try to determine congressional intent, using 'traditional tools of statutory construction.'" (quoting Cardoza-Fonseca, 480 U.S. at 446)).
77. See, e.g., Young, 476 U.S. at 975-76.
78. For further discussion of Young, see supra note 44.
79. 529 U.S. 576 (2000).
80. Id. at 585.
81. Id. at 587.
82. Id. Justice Thomas's opinion also notes the existence of a Department of Labor regulation that the Department claims is interpreted by the opinion letter, id. at 588, but stresses that the regulation unambiguously supports the Court's interpretation of the contested provision rather than that of the Department's opinion letter.
83. Id. Justice Thomas tellingly does not indicate that the statutory language would prevent the Department from amending its regulation to make new law in line with the position taken in the opinion letter.
84. Some did read Christensen somewhat differently, however. See, e.g., Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 881 (2001) (arguing that Chevron should only apply where the agency's action "of its own force and effect, ⋯commands certain behavior and subjects parties to penalties or sanctions if they violate this command"). This covers most agency adjudication, as well as agency legislative rulemaking; but as acknowledged by the authors, notwithstanding the Court's reliance on Chevron in the judicial review of Labor Board decisions, it does not cover Board adjudications because they are not self-enforcing.
85. Id. at 891-92 ("Because the order is not legally binding of its own force, the factual and legal basis of the order is subject to judicial review⋯");
86. see also 29 U.S.C. § 160(e) (2000) (granting the Board the "power to petition any court of appeals of the United States⋯for the enforcement of [the Board's] order[s]"). Merrill's and Hickman's misinterpretation of Christensen, and thus their focus on the irrelevant consideration of whether an adjudication must be enforced in court, derives from their failure to distinguish between an agency action that has the force of law through processes by which the agency is authorized to make law and an agency action that purports to do no more than discover and then apply law that has already been made by Congress.
87. Christensen, 529 U.S. at 590-91 (Scalia, J., concurring in part and concurring in the judgment) ("[W]e have accorded Chevron deference not only to agency regulations, but to authoritative agency positions set forth in a variety of other formats.").
88. 533 U.S. 218 (2001).
89. Id. at 237-38. Justice Scalia wrote a long and vehement dissent.
90. Id. at 252 (Scalia, J., dissenting) ("Congress could not⋯have acted in reliance on a background assumption that Chevron deference would generally be accorded only to agency interpretations arrived at through formal adjudication [or] notice-and-comment rulemaking⋯").
91. Id. at 231-32 (majority opinion).
92. Gonzales v. Oregon, 546 U.S. 243, 255-56 (2006) (quoting Mead, 533 U.S. at 226-27). This language also has been cited by lower courts to limit the scope of Chevron deference. See, e.g., Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001) (holding that EPA has no authority to promulgate rules beyond the boundary set by Congress).
93. Mead, 533 U.S. at 231-34 ("It is difficult⋯to see in the agency practice any indication that Customs ever set out with a lawmaking pretense in mind when it undertook to make classifications like these.").
94. Id. at 237.
95. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
96. Mead, 533 U.S. at 235 (quoting Skidmore, 323 U.S. at 140).
97. Id. at 239-61 (Scalia, J., dissenting).
98. Justice Scalia's willingness to join in the Court's later unanimous decision in Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339 (2007), however, may suggest he is finally willing to relent to the Court's recognition of the distinction between an agency making new law by filling a statutory gap and an agency determining the law made by Congress.
99. Id. at 2345-46 ("When an agency fills [a statutory gap] reasonably, and in accordance with other applicable⋯requirements, the courts accept the result as legally binding." (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984))). In Long Island, the Court granted Chevron-style deference to a regulation of the Department of Labor exempting third-party-employed companionship workers from the FSLA's coverage. The Court engaged an argument from one of these workers that the regulation was only "an 'interpretative' regulation, a kind of regulation that may be used, not to fill a statutory 'gap,' but simply to describe an agency's view of what a statute means," and thus does not "bind" a reviewing court.
100. Id. at 2349. The Court did not dismiss as irrelevant the worker's argument, which had been adopted in the appellate decisions being reviewed. Coke v. Long Island Care at Home, Ltd., 462 F.3d 48, 50 (2d Cir. 2006) (concluding that the regulation "was meant to be an interpretive rule"), rev'd, 127 S. Ct. 2339 (2007);
101. Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 131 (2d Cir. 2004) ("We find § 552.109(a) to be an interpretive rather than a legislative regulation."), vacated, 546 U.S. 1147 (2006). Rather, the Court rejected the argument's premise that the regulation only interpreted already formulated law by carefully explaining that the Department's actions in developing the rule indicated that the Department intended to create new binding law. The Court concluded that "the ultimate question is whether Congress would have intended, and expected, courts to treat an agency's rule, regulation, application of a statute, or other agency action as within, or outside, its delegation to the agency of 'gap-filling' authority." Long Island, 127 S. Ct. at 2350 (emphasis omitted).
102. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). The Court distinguished several of its previous decisions, including Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), as having held, under Step One of Chevron, that an executive agency's new construction of a statute was contrary to a construction that the Court had previously found to be required because the statute was not ambiguous and allowed the agency no discretion. Brand X, 545 U.S. at 984. In Lechmere, the Court interpreted its earlier decision in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), as "saying, in Chevron terms, that section 7 speaks to the issue of nonemployee access to an employer's property." Lechmere, 502 U.S. at 537. While this interpretation of Babcock & Wilcox is both forced and inconsistent with the ambiguous general words of section 7 of the National Labor Relations Act, 29 U.S.C. § 157 (2000), it does establish that the Court's decision in Lechmere was not inconsistent with its decision in Brand X.
103. Brand X, 545 U.S. at 982.
104. Id. at 979-80.
105. See id. at 1004 (Breyer, J., concurring).
106. United States v. Mead, 533 U.S. 218, 247-49 (2001) (Scalia, J., dissenting) (suggesting an agency will now be required "to act by rulemaking (rather than informal adjudication) before the issue is presented to the courts").
107. See Brand X, 545 U.S. at 983 ("[W]hether Congress has delegated to an agency the authority to interpret a statute does not depend on the order in which the judicial and administrative constructions occur.").
108. Justice Scalia argued in his dissent in Mead that restricting the scope of Chevron will ossify statutory law because judicial decisions that grant Chevron deference to an agency decision do not preclude a later alternative reasonable construction of the statute by the agency, while judicial decisions that do not grant such deference do not allow such modifications. Mead, 533 U.S. at 247-49 (Scalia, J., dissenting). Justice Thomas's opinion in Brand X addresses this concern in part by rejecting Justice Scalia's assumption that a judicial decision that interprets an ambiguous statute outside the processes of agency review necessarily precludes the agency from formulating new law under the statute. Brand X, 545 U.S. at 983.
109. See 47 U.S.C. § 153(46) (2006).
110. Brand X, 545 U.S. at 997-1000.
111. Id. (finding that the "nature of cable modem service" is "not a transparent ability⋯to transmit information").
112. Id. at 1000-02.
113. Id.
114. See infra note 85 and accompanying text.
115. Brand X, 545 U.S. at 1017 (Scalia, J., dissenting).
116. Id. 1017 & n. 12.
117. Id. at 983 (majority opinion).
118. This is indeed made clear in section 706 of the APA, which pronounces that "the reviewing court shall decide all relevant questions of law." 5 U.S.C. § 706 (2006). More importantly, applying Justice Thomas's response to cases where a court determines Congress has in fact set particular law, however inartfully and thus ambiguously, would raise a more fundamental constitutional problem that seems to have escaped Justice Scalia: whether the judiciary can abdicate its constitutional authority to determine what law has been made by the other branches of government. As stated in a frequently cited passage from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), "[i]t is emphatically⋯the duty of the judicial department to say what the law is." Id. at 177. This problem did not escape the attention of Professors Henry Hart and Henry Monaghan.
119. See Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1362-63 (1953) (discussing the constitutional problems that stem from Congress's ability to "regulate the jurisdiction of the federal courts"); Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 5 (1983) ("Our inquiry is the extent to which the Constitution controls the allocation of functions between court and administrative agency in statutory interpretation."). As Professor Monaghan explains, the constitutional problem with judicial deference to administrative statutory constructions can be resolved as long as the courts retain discretion to determine legal boundaries actually set by Congress: A statement that judicial deference is mandated to an administrative "interpretation" of a statute is more appropriately understood as a judicial conclusion that some substantive lawmaking authority has been conferred upon the agency. Where deference exists, the court must specify the boundaries of agency authority, within which the agency is authorized to fashion authoritatively part, often a large part, of the meaning of the statute. Monaghan, supra, at 6. In other words, judicial deference to administrative statutory interpretation is consistent with the constitutionally imposed duty of the judiciary, where that deference expresses acceptance of congressional delegation of lawmaking authority to the executive agency. Courts would ignore their duties if they were to defer to the executive's determination of law set by Congress, including the boundaries of the executive's lawmaking authority.
120. See Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 ADMIN. L.J. AM. U. 187, 199, 202 (1992).
121. Justice Thomas's opinion in Brand X states that a "court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference⋯if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." Brand X, 545 U.S. at 982. Although the opinion does not expressly address the case of a judicial determination that an ostensibly ambiguous and poorly drafted statute, like that in Young v. Community Nutrition Institute, 476 U.S. 974 (1986), was intended by Congress to have a particular meaning, the thrust of the Court's analysis would indicate that such a judicial determination would be controlling on the agency as well. In such a case, the Court would announce its decision as what Congress intended, not merely as the Court's own view on the best way to advance congressional intent. Furthermore, the Court has relied on Brand X, as well as on Mead, to state that as a precondition for Chevron deference, the "ambiguity in the statute" must mean "Congress has not previously spoken to the point at issue." Global Crossing Telecomms., Inc. v. Metrophones Telecomms., Inc., 127 S. Ct. 1513, 1522 (2007);
122. see also Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339, 2345-46 (2007).
123. Justice Breyer's opinions for the Court in both Global Crossing and Long Island Care were not surprising in light of the skepticism he had expressed about the desirability of reading Chevron broadly soon after its pronouncement. See generally Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363 (1986). In this article, Justice Breyer recognized the anomaly of courts deferring "to administrative interpretations of regulatory statutes," while reviewing "agency decisions of regulatory policy strictly."
124. Id. at 364-65. More significantly, he recognized that a theory of deference that is based on Congress "delegating the power to the agency⋯gives the agency flexibility to adapt or to modify past policies.
125. Id. at 371.
126. See, e.g., Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 79 (2d Cir. 2006);
127. United States Telecom Ass'n v. FCC, 227 F.3d 450, 460-61 (D.C. Cir. 2000) (finding it unnecessary to "address the Commission's plea for Chevron deference" where there exists "a classic case of arbitrary and capricious agency action"); Allied Local & Reg'l Mfrs. Caucus v. EPA, 215 F.3d 61, 68 (D.C. Cir. 2000) (applying the standards set forth in Chevron as well as those in State Farm to petitioner's challenge of an EPA rule); Cincinnati Bell Tel. Co. v. FCC, 69 F.3d 752, 761-62 (6th Cir. 1995) (reviewing "challenges to an agency's construction of its organic statute under Chevron" and "a substantive challenge to the FCC's rules" under the arbitrary and capricious standard); Nat'l Mining Ass'n v. EPA, 59 F.3d 1351, 1354, 1362 (D.C. Cir. 1995) (discussing the application of arbitrary or capricious review as well as Chevron Step Two); Nat'l Ass'n of Regulatory Util. Comm'rs v. ICC, 41 F.3d 721, 726 (D.C. Cir. 1994) ("[T]he inquiry at the second step of Chevron overlaps analytically with a court's task⋯in determining whether agency action is arbitrary and capricious (unreasonable).");
128. see also Laurence H. Silberman, Chevron - The Intersection of Law & Policy, 58 GEO. WASH. L. REV. 821, 827-28 (1990) ("It may well be that the second step of Chevron is not all that different analytically from the APA's arbitrary and capricious review.").
129. Compare Animal Legal Def. Fund, Inc. v. Glickman, 204 F.3d 229, 235 (D.C. Cir. 2000) (explaining that "the explanation that renders the Secretary's interpretation of the statute reasonable also serves to establish that the final rule was not arbitrary and capricious"), with Arent v. Shalala, 70 F.3d 610, 615-16 (D.C. Cir. 1995) (finding that although "Chevron review and arbitrary and capricious review overlap at the margins," the latter provides a separate ground for challenging an agency's construction of ambiguous statutory language).
130. See also Indep. Petroleum Ass'n of Am. v. Babbitt, 92 F.3d 1248, 1258 (D.C. Cir. 1996) (holding that arbitrary or capricious review is "functionally equivalent" to Chevron review when applied to agency statutory construction); Republican Nat'l Comm. v. Fed. Election Comm'n, 76 F.3d 400, 407 (D.C. Cir. 1996) (using separate application of arbitrary or capricious review).
131. The disagreement derives in part from different conceptions as to what is settled under Chevron Step One. If Step One settles not only that the statute is ambiguous, but also that the ambiguity encompasses the "precise" position taken by the agency, then all that is left for Step Two is to address whether the agency has reasonably justified its position as a matter of policy - the precise question addressed under arbitrary or capricious review. However, if Step One review settles only that the relevant statutory provision has some degree of ambiguity, then Step Two review must address whether the agency's particular construction of the provision is reasonable, and a supplementary arbitrary or capricious review can determine whether this construction was reasonably justified by the agency. In my view, the Court should clarify that Chevron Step One review is to settle whether the agency's position is within the scope of the ambiguity intended by Congress; and that Step Two review thus has no function beyond incorporating the arbitrary or capricious standard. As Professor Ronald Levin has well argued, settling all the questions of legislative intent under Chevron Step One and using Step Two to determine whether the agency can satisfy the arbitrary or capricious review standard for policymaking has the virtues of clarity and simplicity without sacrificing any tool of judicial control.
132. See Ronald M. Levin, The Anatomy of Chevron Step Two Reconsidered, 72 CHI.-KENT L. REV. 1253, 1255 (1997). This approach divides the analysis at Step One, of whatever the court may find relevant to statutory meaning at the time of the passage of the statute, from the analysis at Step Two, of the agency's use of reasoning and evidence to advance the statute's purposes and accommodated interests at the time of the agency's law or policymaking. For other commentary advocating making Chevron Step Two and arbitrary or capricious review equivalent, see, for example, RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW § 7.4, at 453 (4th ed. 2002), which recognizes that "[t]he two tests ask the same question, and courts should use the same approach to answer the question."
133. See also Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 TEX. L. REV. 83, 127-30 (1994) (advocating, through analysis of democratic theory, that courts require "reasoned decisionmaking" as part of Chevron Step Two review);
134. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2105 (1990) (arguing that in Chevron's Step Two, the "reasonableness inquiry should probably be seen as similar to the inquiry into whether the agency's decision is 'arbitrary' or 'capricious' within the meaning of the APA").
135. While recognizing that traditional arbitrary or capricious policymaking review is appropriate in some cases after Chevron Step One review of an agency's construction of a statute, Professor Lawson argues that in many other cases the agency should be able to defend its construction as the "best resolution to the question of statutory meaning" through the "traditional tools of statutory interpretation." Gary Lawson, Reconceptualizing Chevron and Discretion: A Comment on Levin and Rubin, 72 CHI.-KENT L. REV. 1377, 1382 (1997);
136. see also Gary Lawson, Outcome, Procedure and Process: Agency Duties of Explanations for Legal Conclusions, 48 RUTGERS L. REV. 313, 331 (1996). This argument assumes, in my view incorrectly, that Chevron directs courts to defer not only to an agency's exercise of policymaking expertise, but also to an agency's divination of congressional meaning.
137. See supra note 80 and accompanying text. Instead, the courts should decide whether Congress intended a specific meaning, and if so, what that meaning was. In most cases of ambiguity Congress does not have such intent, and the courts should defer to reasoned analysis by an agency with delegated authority to resolve the ambiguity. But see supra note 44 and accompanying text.
138. See supra note 24 and accompanying text.
139. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("Normally, an agency rule would be arbitrary and capricious if the agency⋯entirely failed to consider an important aspect of the problem⋯"); see also PDK Labs., Inc. v. DEA, 362 F.3d 786, 797-98 (D.C. Cir. 2004) ("[I]t is incumbent upon the agency not to rest simply on its parsing of the statutory language. It must bring its experience and expertise to bear in light of competing interests at stake.").
140. 29 U.S.C. § 154(a) (2000).
141. See Bernstein, supra note 4, at 578 ("What the Board lacks notably is⋯specific information about labor-management practices and employee attitudes and reactions that may be pertinent to its work⋯").
142. As acknowledged supra note 30, the courts cannot require the Board to utilize any particular procedures, such as its common practice of solicitation of amicus briefs, to collect relevant empirical data relevant to the debates on important legislative facts in adjudications. However, since the courts should be able to require the Board to provide the same kind of substantive support for any policy formulated in adjudication as if the same policies had been formulated in a rulemaking, the Board can be required to utilize in an adjudication some means of its choosing for insuring review of relevant available empirical studies.
143. See 29 U.S.C. §156.
144. 342 N.L.R.B. 483 (2004).
145. Id. at 487, 494.
146. Id. at 487.
147. 332 N.L.R.B. 1205 (2000), overruled by Brown University, 342 N.L.R.B. 483 (2004).
148. Id. at 1209.
149. Brown, 342 N.L.R.B. at 488.
150. Id. at 494.
151. Section 2(3) of the Act states: The term "employee"⋯ shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined. 29 U.S.C. § 152(3) (2000).
152. Brown, 342 N.L.R.B. at 488.
153. See id.
154. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (2004).
155. See 29 U.S.C. § 152(3) (describing the exceptions required by statute).
156. See Brown, 342 N.L.R.B. at 483-93.
157. See NLRB v. Town & Country Elec, Inc., 516 U.S. 85, 90-94 (1995) (upholding the Board's inclusion of union organizers as statutory employees of employers for whom they simultaneously provide services and attempt to organize); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-92 (1984) (upholding the Board's inclusion of undocumented aliens).
158. See, e.g., Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (interpreting the Employment Retirement Income Security Act under the principle that courts should infer that Congress uses the term "employee" to conform to its common-law definition); NLRB v. United Ins. Co. of Am., 390 U.S. 254, 256 (1968) (using common law to exclude independent contractors from coverage).
159. Brown, 342 N.L.R.B. at 490 n.27.
160. See United Faculty of Fla. v. Bd. of Regents, 417 So. 2d 1055, 1058-59 (Fla. Dist. Ct. App. 1982) (using common law standards to interpret use of "employee" in Florida state constitution).
161. Member Schaumber argues that graduate teaching assistants are not common-law employees because they are "admitted" to a program and are not "hired" by a university. Brown, 342 N.L.R.B at 490 n.27. He cites no common-law decisions under which this formal distinction resulted in a non-employee classification for students providing work for a school under that school's control.
162. Id. He cites only Town & Country, 516 U.S. at 92-94, where the Court relied in part on the common law to hold that a union organizer can simultaneously be the employee of an employer that she is being paid to organize as well as the union for whom she is organizing. The Town & Country Court, in recognizing that the common law accepts a worker having two simultaneous roles as employees of two employers, relied on the Restatement (Second) of Agency.
163. Id. at 94-95 (citing RESTATEMENT (SECOND) OF AGENCY § 226 (1957)). However, the Restatement does not require that an employee who provides service to a consenting employer be formally "hired" by that employer.
164. See RESTATEMENT (SECOND) OF AGENCY § 221 (1958). Section 221 of the Restatement requires only that "the one for whom the service is rendered must consent or manifest his consent to receive the services."
165. Id. Furthermore, section 225 of the Restatement clarifies that even volunteers may be employee-servants under the commonlaw test; it states that "[o]ne who volunteers services without an agreement for or expectation of reward may be a servant of the one accepting such services."
166. Id. § 225;
167. see, e.g., Fils-Aime v. Ryder TRS, Inc., 837 N.Y.S.2d 199, 200 (2007) (finding that a student volunteering services to his university may be an employee-servant). The Restatement (Third) of Agency does not depart from these positions. Section 7.07(3) states that "an employee is an agent whose principal controls or has the right to control the manner and means of the agent's performance of work," and "the fact that work is performed gratuitously does not relieve a principal of liability." RESTATEMENT (THIRD) OF AGENCY §7.07(3) (2007). Section 1.02 of the tentative draft of the Restatement Third of Employment Law, for which I serve as a Reporter, excludes true volunteers from the class of employees covered by employment laws, but expressly treats compensated students as employees rather than volunteers.
168. See RESTATEMENT (THIRD) OF EMPLOYMENT § 1.02 cmt. d (Tentative Draft No. 1, 2008) (treating compensated students as employees because "such compensation encourages the students to work for more than educational benefits and thereby establishes an employment as well as an educational relationship"). Courts have accepted the dual roles of graduate student research and teaching assistants as both students and employees, protected in the latter role by the anti-employment discrimination laws.
169. See, e.g., Cuddeback v. Fla. Bd. of Educ, 381 F.3d 1230, 1234-35 (11th Cir. 2004);
170. Ivan v. Kent State Univ., 863 F. Supp. 581, 585-86 (N.D. Ohio 1994).
171. The dissenters in Brown take this position: "[T]he Board simply is not free to create an exclusion from the Act's coverage for a category of workers who meet the literal statutory definition of employees." Brown, 342 N.L.R.B. at 496 (Liebman & Walsh, Members, dissenting). As the dissent points out, the university grants these students compensation; contrary to the characterization of the Brown majority, moreover, this compensation is part of the total bargain between the university and the graduate students and in that sense is consideration for their services, whether or not it can also be characterized as "financial aid."
172. Id. at 497.
173. NLRB v. Bell Aerospace Co., 416 U.S. 267, 288-89 (1974).
174. See id. at 280-84.
175. See id. at 284 (inferring an exclusion for "managerial employees" due to statutory policies).
176. See supra note 105.
177. See, e.g., State Farm Ins. Fund v. Brown, 38 Cal. Rptr. 2d 98, 103 (Ct. App. 1995) ("[T]he concept of 'independent contractor' arose at common law to limit an employer's vicarious liability for the misconduct of a worker; thus, the degree to which the employer had the right to control the worker's actions was directly pertinent to the employer's exposure to liability.").
178. See supra note 37 (explaining different approaches for discerning congressional intent behind a statute).
179. See supra text accompanying notes 28-30.
180. See supra text accompanying note 24.
181. See supra text accompanying note 24.
182. Brown University, 342 N.L.R.B. 483, 493 (2004). The Brown majority, in a brief paragraph, also claimed the discretion, based on its understanding of the "national labor policy" and "the purposes and policies" of the Act, to deny "collective bargaining rights" to graduate student assistants even if they are "statutory employees," and thus presumably protected from unfair labor practices by section 8 of the Act.
183. Id. This claim can be bracketed here as the existence of such discretion is far from clear, and the Board did not articulate any further policies that might be relevant to its exercise in this case.
184. Id. at 497-99 (Liebman & Walsh, Members, dissenting).
185. Id. at 499.
186. Id. Under section 8(d) of the NLRA the parties must bargain "in good faith with respect to wages, hours, and other terms and conditions of employment." 29 U.S.C. § 158(d) (2000). The Supreme Court has recognized that the ambiguity of these words affords the Board, based in part on "industrial practices" and "experience," considerable discretion in setting the topics over which employers must bargain.
187. See Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 211 (1964). Moreover, the Court has further held that the Board must construe the Act to protect from the pressures of collective bargaining core entrepreneurial decisions that define the nature of the good or service produced by the employer.
188. See First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 686 (1981) (holding that an employer may decide to close part of its business without bargaining with a union representing employees affected by the closure). This suggests the Board may not even have discretion to require bargaining over topics like course content or teaching methods that define the education offered by universities. For a theoretical basis for this position, see Michael C. Harper, Leveling the Road from Borg-Warner to First National Maintenance: The Scope of Mandatory Bargaining, 68 VA. L. REV. 1447, 1501 (1982). The majority in Brown noted that several states have limited bargaining subjects for public academic employees, but claimed section 8(d) allowed no such limitations. Brown, 342 N.L.R.B. at 492. The majority's claim seems curious for most of the topics cited in the supporting footnote discussing state law. See id. at 492 n.31. These include, for instance, in the primary example of California law, "[a]dmission requirements for students, conditions for award of certificates and degrees to students, and content and supervision of courses, curricula, and research programs." CAL. GOV'T CODE § 3562(q)(1)(C) (West 2008). None of these topics should be subject to mandatory bargaining under the NLRA.
189. Brown, 342 N.L.R.B. at 499-500 (Liebman & Walsh, Members, dissenting).
190. Id. at 497-99. The dissent stated, based on a report in the Chronicle of Higher Education, that "23.3 percent of college instructors were graduate student teaching assistants⋯[b]y December, 2000."
191. Id. at 497 & n.20.
192. Id. at 492-93 (majority opinion).
193. Id. at 493.
194. See, e.g., Rust v. Sullivan, 500 U.S. 173, 186-87 (1991) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 862 (1984);
195. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 29, 42 (1983)) (affirming that an executive agency may, on a continuing basis, review and change policy after reasoned analysis, including consideration of experience with old policy).
196. The standard of judicial review for "questions of fact" in adjudications is "substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e)-(f) (2000).
197. See supra note 8 and accompanying text.
198. See Brown, 342 N.L.R.B. at 492-93.
199. Compare id. at 493 (reasoning that "there is a significant risk, and indeed a strong likelihood, that the collective-bargaining process will be detrimental to the educational process"), with id. at 499-500 (Liebman & Walsh, Members, dissenting) (citing a study that found that collective bargaining did not negatively affect faculty mentors' relationships with their graduate students at schools where graduate students were a party to such bargaining).
200. See id. at 483-93 (majority opinion).
201. The Board majority did attempt to make this claim by stressing decisions before New York University that had excluded graduate assistants from faculty bargaining units and had held at least some graduate research assistants outside the coverage of the Act. Id. at 486-87 (citing Leland Stanford Junior Univ., 214 N.L.R.B. 621 (1974);
202. Adelphi Univ., 195 N.L.R.B. 639 (1972)). The Board, however, acknowledged its decision required the overruling of New York University. Id. at 483.
203. 343 N.L.R.B. 659 (2004).
204. Id. at 663.
205. 331 N.L.R.B. 1298 (2000), overruled by H.S. CARE, 343 N.L.R.B. 659 (2004).
206. H.S. CARE, 343 N.L.R.B. at 661.
207. M.B. Sturgis, 331 N.L.R.B. at 1304.
208. Id. at 1304-05.
209. Id. at 1304-05, 1308. The Supreme Court has accepted the Board's recognition of multiemployer bargaining units that are consented to by all employers and the union.
210. See, e.g., NLRB v. Truck Drivers Local 449, 353 U.S. 87, 95-96 (1957) (concluding that Congress intended to allow the Board to continue certifying multiemployer units at its discretion).
211. H.S. CARE, 343 N.L.R.B. at 663 (concluding that the Sturgis decision "contravenes Section 9(b) by requiring different employers to bargain together regarding employees in the same unit").
212. Id. at 662.
213. Id. ("The critical point is that the one group has its terms set by A/B. The other group has its terms set only by A. Thus, the entity that the two groups of employees look to as their employer is not the same.").
214. Id. at 663-64 (Liebman & Walsh, Members, dissenting).
215. Id. at 663 (majority opinion).
216. M.B. Sturgis, 331 N.L.R.B. 1298, 1304-05 (2000) (finding that "[t]he scope of a bargaining unit is delineated by the work being performed for a particular employer"), overruled by H.S. CARE, 343 N.L.R.B. 659 (2004).
217. H.S. CARE, 343 N.L.R.B. at 662 (looking to whom the party has a bargaining obligation to define what constitutes an "employer unit").
218. The legislative history of the NLRA includes no references to joint employers.
219. See text accompanying notes 87-91.
220. 29 U.S.C. § 159(b) (2000).
221. See id.
222. 205 N.L.R.B. 250 (1973).
223. M.B. Sturgis, 331 N.L.R.B. 1298, 1298 (2000), overruled by U.S. CARE, 343 N.L.R.B. 659 (2004).
224. The office rental properties in Greenhoot were owned by fourteen separate entities and were all located within the same city. Greenhoot, Inc., 205 N.L.R.B. at 250 & n. 1.
225. H.S. CARE, 343 N.L.R.B. 659, 662 (2004).
226. See id. (relying mainly on this contrast to overrule Sturgis).
227. The H.S. CARE Board's reasoning seems even more formalistic and conclusory in light of its distinction of a series of cases in which the Board before Sturgis had held that a bargaining unit could combine the employees of a department store, employees jointly employed by the department store, and licensees of the store that operated sales operations on the store's premises. Id. (citing Kresge, 169 N.L.R.B. 442 (1968), enforced in part sub nom. S.S. Kresge Co. v. NLRB, 416 F.2d 1225 (6th Cir. 1969);
228. S.S. Kresge, 162 N.LR.B. 498 (1966), enforced in part sub nom. Gallenkamp Stores v. NLRB, 402 F.2d 525 (9th Cir. 1968)). The H.S. CARE Board claimed that these cases were distinguishable because the department store and its licensees were engaged in a "joint enterprise," a term the Board did not define.
229. See id. (describing "joint enterprise" as a "unique relationship" but not defining it). Regardless of what the Board meant by the term, it did not dispute that the licensees were independent firms and that the unit approved by the Board in the earlier cases therefore combined employees of employer "A" with employees of the "joint enterprise" of employer "A/B."
230. See id.
231. Id. at 663.
232. National Labor Relations Act § 9, 29 U.S.C. § 159(b) (2000) (giving the Board, under certain restrictions, the ability in each case to determine the proper unit for collective bargaining).
233. The Board, in dicta, further reduced the temporary employees' ability to choose collective bargaining by apparently rejecting the possibility of having jointly-employed temporary employees in a bargaining unit defined by only one of the employers. H.S. CARE, 343 N.L.R.B. at 663 (stating that the "concept profoundly diminishes employee Section 7 rights"). Such a rejection would preclude employees supplied by an employer that supplies to multiple users from forming a bargaining unit to bargain alone with the supplier employer. Such a bargaining unit might be more easily organized, than would a jointemployer unit, among temporary employees who are frequently transferred between user employers. The Board's rejection of a supplier employer unit is not fully clear, however, because the example of inappropriateness the Board offered is a unit of jointly-employed employees that names only a user employer.
234. Id. Furthermore, the Board offered no reason it would not have discretion to find a supplier employer unit appropriate in particular cases.
235. Id.
236. Id.
237. See, e.g., Friendly Ice Cream Corp. v. NLRB, 705 F.2d 570, 575-76 (1st Cir. 1983) (discussing the Board's use of criteria to determine whether employees in a proposed singlestore unit all have a "community of interest").
238. The fact that the parties in H.S. CARE "stipulated that a joint bargaining unit would be appropriate⋯unless Sturgis is overruled," H.S. CARE, 343 N.L.R.B. at 659, suggests the Board could not even draw from the facts of the case before it to support its analysis.
239. Id. at 664 (Liebman & Walsh, Members, dissenting).
240. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43(1983).
241. See National Labor Relations Act § 9, 29 U.S.C. § 159(b) (2000).
242. See State Farm, 463 U.S. at 43.
243. See H.S. CARE, 343 N.L.R.B at 662-63.
244. § 159(b); see also Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 614 (1991) (confirming the discretion of the Board under section 9(b) to set reasonable, rebuttable presumptions about what kind of bargaining units are appropriate).
245. Am. Hosp. Ass'n, 499 U.S. at 619;
246. see also 29 C.F.R. § 103.30 (2008) (identifying the appropriate bargaining units in the health care industry).
247. The Court in American Hospital, citing State Farm, concluded that the acute care hospital rules were "based on substantial evidence and supported by a reasoned analysis." Am. Hosp. Ass'n, 499 U.S. at 619.
248. H.S. CARE in fact may not be subjected to judicial review because unions have great difficulty securing review of the Board's unit determinations. Board decisions under section 9 are not "final orders" reviewable under section 10 of the Act. See Am. Fed'n of Labor v. NLRB, 308 U.S. 401, 409 (1940) (limiting the review afforded by section 10 to "orders of the Board prohibiting unfair labor practices"). Although the Court has also held that a federal court has general jurisdiction to review the denial of a right secured by the Act, see Leedom v. Kyne, 358 U.S. 184, 191 (1958), section 9 does not seem to guarantee the right to have a bargaining unit of a particular scope. However, when a union has not effectively organized jointly-employed leased employees, an employer might want the leased employees to be part of the bargaining unit, and the employer could seek judicial review of the employees' exclusion by the Board.
249. Cf. Santa Fe Healthcare LLC, No. 21-CA-37593, 2008 NLRB LEXIS 43, at *6-*8 (NLRB Division of Judges Feb. 22, 2008) (rejecting an employer's attempt to accrete an unorganized subcontractor's employees to a bargaining unit, in order to allow the employer to justify refusing to bargain). An employer can of course secure judicial review of any unit determination by refusing to bargain with the union that the Board has certified to represent that unit and thereby securing an unfair labor practice "final order."
250. See § 159(d) (providing that where an order of the Board on an unfair labor practice charge is based in part on a section 9 certification, the certification shall be part of the reviewed record). Unions have no such clear path.
251. See generally Michael C. Harper, The Case for Limiting Judicial Review of Labor Board Certification Decisions, 55 GEO. WASH. L. REV. 262 (1987).
252. See National Labor Relations Act § 8, 29 U.S.C. § 158 (2000) (defining employer and union unfair labor practices).
253. See National Labor Relations Act § 9, 29 U.S.C. § 159 (empowering the Board to determine the appropriateness of bargaining units, to direct representation elections, and to certify the results of such elections).
254. For example, the Board must decide whether graduate students who are assigned compensated teaching duties are employees covered by the Act when a group of such students present a petition for a certification election, under section 9 of the Act, or claim discrimination against their concerted activities, under section 8 of the Act. On the other hand, the Board, like any executive agency, could delay for the collection of additional evidence before imposing a defined supplementary duty on employers like that imposed by Excelsior Underwear, Inc., 156 N.L.R.B. 1236, 1239-40 (1966) (requiring an employer to supply the Regional Director with the names and addresses of all members of a bargaining unit within seven days after the direction of a representation election).
255. Martin Luther Mem'l Home, Inc., 343 N.L.R.B. 646, 648 (2004) (justifying the Board's decision as one which strikes a more "realistic balance").
256. Section 8(a)(1) of the NLRA defines as an unfair labor practice an employer acting "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7," 29 U.S.C. § 158(a)(1) (2000), which includes the right to engage in "concerted activities" for "mutual aid or protection," 29 U.S.C. § 157.
257. Martin Luther, 343 N.L.R.B. at 646 (holding the rules lawful because their intent was to maintain order in the workplace and they did not prohibit section 7 activity).
258. Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998).
259. Martin Luther, 343 N.L.R.B. at 647. This clarification was fully consistent with the Board's statement in Lafayette Park that "the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights." Lafayette Park, 326 N.L.R.B. at 825. The Board in Martin Luther, moreover, did not purport to overrule any of the particular applications of this standard in Lafayette Park, though it did reserve judgment on the "validity" of the latter decision, which held unlawful a rule prohibiting "false, vicious, profane, or malicious statements." Martin Luther, 343 N.L.R.B. at 647 n.9.
260. Lafayette Park, 326 N.L.R.B. at 825 (quoting Republic Aviation v. NLRB, 324 U.S. 793, 797-98(1945)).
261. Martin Luther, 343 N.L.R.B. at 650 (Liebman & Walsh, Members, dissenting) (describing the majority's purported balancing as a one-sided analysis).
262. Id. at 651. Member Liebman stated in a footnote that it would be sufficient to include a provision in the rule exempting from coverage "conduct that is protected under the National Labor Relations Act."
263. Id. at 652 n.7.
264. Id. at 646 (majority opinion).
265. Id. at 647.
266. Id. (finding no basis to believe "that a reasonable employee would interpret a rule prohibiting such language as prohibiting Section 7 activity").
267. Id. at 647-48 (contending that employees are capable of exercising their statutory rights without resorting to profane or harassing language).
268. Thus, the Board's decision in Martin Luther can be read to implicitly adopt the position taken by Member Hurtgen in Lafayette Park: that a rule can chill the exercise of section 7 rights and still be justified by significant employer interests. This position seems correct: "[A] rule against solicitation during working time chills Sec. 7 exercise for that period. But, the rule is valid because the employer has a significant interest in having work time set aside for work." Lafayette Park Hotel, 326 N.L.R.B. 824, 825 n.5 (1998).
269. Martin Luther, 343 N.L.R.B. at 648. The majority's rejection of Member Liebman's suggestion that employers should be required to specify that work rules do not apply to protected conduct is therefore based not on a prediction about the effects of such rules but rather on its valuation of the preservation of employer authority to control "egregious" abusive or profane language, even during the course of activity otherwise protected by section 7.
270. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
271. Martin Luther, 343 N.L.R.B. at 650 (Liebman & Walsh, Members, dissenting) (citing Republic Aviation v. NLRB, 324 U.S. 793, 797-98 (1945)).
272. Since the Board's decision in Martin Luther, several courts of appeals have accepted that decision's reformulation of the Board's "chilling effect" doctrine. See, e.g., UAW v. NLRB, 520 F.3d 192, 196 (2d Cir. 2008) (accepting the Martin Luther analysis, but finding that the Board was "certainly unreasonable" in applying the analysis to the facts of the case);
273. Cintas Corp. v. NLRB, 482 F.3d 463, 467 (D.C. Cir. 2007) (describing the proper method of inquiry as that taken in Martin Luther); Guardsmark, LLC v. NLRB, 475 F.3d 369, 372 (D.C. Cir 2007). However, two of these decisions - UAW and Guardsmark found a Board application of the doctrine to be unreasonable both because it rested on an implausible reading of a challenged rule and because it ignored how a more narrow rule could serve legitimate employer interests. UAW, 520 F.3d at 197; Guardsmark, 475 F.3d at 380.
274. Lafayette Park, 326 N.L.R.B. at 826.
275. IBM Corp., 341 N.L.R.B. 1288, 1290 (2004).
276. 331 N.L.R.B. 676, 679 (2000) (holding that nonunion employees should have the same rights as union employees regarding union representation during investigatory interviews which may result in discipline), enforced in relevant part, 268 F.3d 1095 (D.C. Cir. 2001), overruled by IBM Corp, 341 N.L.R.B. 1288 (2004).
277. IBM Corp., 341 N.L.R.B. at 1294.
278. 420 U.S. 251, 267 (1975) (affirming a Board holding that it is an unfair labor practice for an employer to discipline an employee for refusing to participate without union representation in a hearing "which the employee reasonably believed might result in disciplinary action").
279. IBM Corp., 341 N.L.R.B. at 1289 (citing Slaughter v. NLRB, 794 F.2d 120 (3d Cir. 1986));
280. see also Epilepsy Found., 268 F.3d at 1095 (upholding the Board's discretion to apply Weingarten to a nonunion workplace).
281. IBM Corp., 341 N.L.R.B. at 1288 (citing E. I. DuPont & Co., 289 N.L.R.B. 627 (1988)).
282. Id. at 1289. This acknowledgment was in contrast to the Board's claims in both Brown University, 342 N.L.R.B. 483, 492 (2004), and H.S. CARE, 343 N.L.R.B. 659, 659 (2004), that its decisions were dictated by the statute. See supra Part II.A-B.
283. IBM Corp., 341 N.L.R.B. at 1289.
284. Id. at 1290.
285. Id. at 1294.
286. National Labor Relations Act § 7, 29 U.S.C. § 157 (2000).
287. See, e.g., Machinists v. Wis. Employment Relations Comm'n, 427 U.S. 132, 149 (1976) (holding that Congress intended certain employee activity, such as peaceful partial strikes, not to be regulated as either protected or prohibited by either federal or state law).
288. See, e.g., NLRB v. Local Union No. 1229, Int'l Bhd. of Elec. Workers, 346 U.S. 464, 477-78 (1953) (holding that workers' public disparagement of their employer's product is not protected by section 7 if not connected to a labor dispute).
289. Indeed, the Board in IBM directly stated it was weighing an employee right against the legitimate needs of employers: "Our examination and analysis⋯lead us to conclude that, on balance, the right of an employee to a coworker's presence in the absence of a union is outweighed by an employer's right to conduct prompt, efficient, thorough, and confidential workplace investigations." IBM Corp., 341 N.L.R.B. at 1294.
290. Id. 1291.
291. Id. at 1291-92.
292. Id. at 1293.
293. Id. at 1295.
294. See generally id.
295. 156 N.L.R.B. 1236, 1239 (1966);
296. see supra text accompanying note 21.
297. The legislative history of the Act includes no discussion of the possible role of concerted employee mutual assistance, whether through unions or otherwise, in disciplinary or investigatory hearings or investigations by employers. See generally 1 LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT, 1935 (1949); 2 LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT, 1935 (1949).
298. Revealingly, the Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), rested not on a parsing of the language of the statute or of its legislative history, but rather on a determination that the Board had appropriately discharged its delegated "responsibility to adapt the Act to changing patterns of industrial life." Id. at 266.
299. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43(1983).
300. IBM Corp., 341 N.L.R.B. at 1293-94.
301. Id.
302. See id. at 1305 (Liebman & Walsh, Members, dissenting).
303. See supra text accompanying notes 103-116.
304. See supra text accompanying notes 159-172.
305. IBM Corp., 341 N.L.R.B. at 1308-09 (Liebman & Walsh, Members, dissenting).
306. See, e.g., NLRB v. Wash. Aluminum Co., 370 U.S. 9, 17 (1962) (explaining "[section] 7 does not protect all concerted activities⋯such as those that are unlawful, violent or in breach of contract [or]⋯'indefensible' because they were found to show disloyalty to the workers' employer"); NLRB v. Local Union No. 1229, Int'l Bhd. of Elec. Workers, 346 U.S. 464, 473-74 (1953).
307. See, e.g., NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 786 (1979) (holding that the employer's interest in the "immediate patient-care" areas justifies restrictions on union activity); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967) ("[I]f the adverse effect of the discriminatory conduct on employee rights is 'comparatively slight,' an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct.").
308. But see Lechmere, Inc. v. NLRB, 502 U.S. 527, 537 (1992) (stating that section 7 may protect trespassing activity by non-employee union organizers only where employees are otherwise inaccessible).
309. See, e.g., Republic Aviation Corp. v., 324 U.S. 793, 798 (1945) (upholding such Board balancing and noting that the Act left to the Board the "administrative flexibility" necessary to protect both the employee "right of self-organization" secured by the Act and employers' rights to "maintain discipline").
310. See supra text accompanying notes 121-134.
311. See supra text accompanying notes 164-173.
312. IBM Corp., 341 N.L.R.B. 1288, 1305-11 (2004) (Liebman & Walsh, Members, dissenting).
313. Id. at 1305, 1310.
314. See Epilepsy Found, of Ne. Ohio, 331 N.L.R.B. 676, 678 (2000).
315. Member Schaumber's concurring opinion in IBM, 341 N.LR.B. at 1295 (Schaumber, Member, concurring), although somewhat difficult to parse, by contrast to the majority's opinion, suggests interpretations of the Act that could be more readily reversed by a reviewing court pursuant to Chevron review. Member Schaumber's concurring opinion questions whether a non-unionized employee's request for a coworker's presence at an investigatory interview should be treated as concerted activity that can be protected under section 7.
316. Id. at 1299. The opinion also seems to suggest that the Act should not be read to subordinate a non-unionized employer's "common law right to deal with its employees on its own terms and on an individual basis."
317. Id. The latter suggestion could be reversed by a court as contrary to the Act's clear restrictions on the personnel decisions of nonunion employers to protect the rights of employees to organize unions and to engage in other "concerted activities" for "mutual aid or protection." National Labor Relations Act § 7, 29 U.S.C. § 157 (2000). Restricting an employer's discretion to discipline an employee for insisting on the presence of a coworker at an investigatory interview does not compel an employer to bargain with the two employees. The rights secured in section 7 through the unfair labor practices specified in section 8 are not limited to employees who are in unions or who are considering joining unions. The Supreme Court confirmed this in NLRB v. Wash. Aluminum, 370 U.S. 9, 17-18 (1962), by upholding the Board's protection from employer retaliation for a group of employees who spontaneously walked off their job because of an extraordinarily cold work place. The first of Member Schaumber's statutory interpretations - that the word "concerted" in section 7 requires more "interaction" between employees than just one employee's request to an employer for the assistance of a coworker - seems more plausible because the word "concerted" is both somewhat ambiguous and has been treated as limiting the scope of section 7.
318. See NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 822 (1984) (holding that the Board may treat a sole employee's invocation of a collective bargaining agreement as concerted and thus possibly protected activity). Furthermore, while a unionized employee who requests the assistance of a union representative is invoking a system created by concerted employee efforts, a non-unionized employee's request for assistance may not be part of any pre-existing agreement between employees to help each other. The Board, however, has never taken the position that one employee's efforts to engage another in collective action does not qualify as "concerted," and a request for the help of a coworker would always seem to be at least a potential step toward interaction. Not providing protection to requests therefore must somewhat sacrifice the Act's goal of insulating collective-employee efforts from employer retaliation. Before accepting any Board interpretation of "concerted" that allows such a sacrifice, a court should require the Board to go beyond the abstract analysis of statutory language to consider the actual impact of its interpretation on labor relations.
319. I would place myself in this category. In the absence of empirical evidence, I would assume that the likely reduced efficacy of a nonunion Weingarten right is still worth the risk of potentially greater disruptions of that right for nonunion employers. However, I would have to acknowledge that the call is closer than that for the union workplace, where the union representative is likely to be both more effective for the employee and more responsible toward the employer than the average coworker.
320. IBM Corp., 341 N.L.R.B. at 1288.
321. See supra text accompanying notes 174-176.
322. Oakwood Healthcare, Inc., 348 N.L.R.B. 686, 686 (2006);
323. Croft Metals, Inc., 348 N.L.R.B. 717, 717 (2006) (applying the standard set forth in Oakwood Healthcare to determine whether lead persons were supervisors under section 2(11) of the Act); Beverly Enters.-Minn., Inc., 348 N.L.R.B 727, 727 (2006) (applying the standard set forth in Oakwood Healthcare to determine whether charge nurses were supervisors under section 2(11) of the Act).
324. 29 U.S.C. § 152(11) (2000). Section 152 states: The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment. Id.
325. The definition of "employee" in the Act expressly excludes "any individual employed as a supervisor." Id. § 152(3).
326. NLRB v. Ky. River Crnty. Care, Inc., 532 U.S. 706, 721 (2001) (holding the Board's interpretation unlawful because it "contradict[s] both the text and structure of the statute,⋯as well the rule of Health Care that the test for supervisory status applies no differently to professionals than to other employees"); NLRB v. Health Care & Retirement Corp. of Am., 511 U.S. 576, 584 (1994) ("[T]he Board's test for determining supervisory status of nurses is inconsistent with the statute and our precedents.").
327. The Act clearly contemplates the coverage of at least some professionals, notwithstanding the supervisory exclusion, by including a separate definition for "professional employee," 29 U.S.C. § 152(12), and by directing the Board not to determine a bargaining unit to be appropriate if it includes both professional and non-professional employees "unless a majority of such professional employees vote for inclusion in such unit."
328. Id. § 159(b)(1).
329. Health Care, 511 U.S. at 590 (Ginsburg, J., dissenting).
330. Ky. River, 532 U.S. at 714.
331. Id. at 721;
332. accord Health Care, 511 U.S. at 584.
333. Ky. River, 532 U.S. at 715-17.
334. Id. at 720.
335. Oakwood Healthcare, Inc., 348 N.L.R.B. 686, 691 n.28 (2006). The Oakwood Healthcare Board did not even acknowledge Justice Scalia's invitation, stating only in another footnote that "[t]o the extent that Providence Hospital is inconsistent with any aspect of our decision in this case, Providence Hospital and those cases relying on it are overruled."
336. Id. at 691 n.29. Justice Scalia cites the Board's decision in Providence Hospital, 320 N.L.R.B. 717, 729 (1996), as a possible basis for his invitation. Ky. River, 532 U.S. at 720.
337. Oakwood Healthcare, 348 N.L.R.B. at 691-92 (emphasis added).
338. See, e.g., NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1278 (5th Cir. 1986);
339. NLRB v. Adam & Eve Cosmetics, Inc., 567 F.2d 723, 727-28 (7th Cir. 1977).
340. Oakwood Healthcare, 348 N.L.R.B. at 706 (Liebman & Walsh, Members, dissenting) (quoting 2 NLRB, LEGISLATIVE HISTORY OF THE LABOR-MANAGEMENT RELATIONS ACT, 1947, at 1303 (1947)).
341. Id.
342. Id. at 689 (majority opinion).
343. 29 U.S.C. § 152(11) (2000).
344. Oakwood Healthcare, 348 N.L.R.B. at 703 (Liebman & Walsh, Members, dissenting).
345. Id. This argument also is supported by the legislative history of the addition of the "responsibly to direct" function. As mentioned by the dissenters in Oakwood Healthcare, Senator Flanders asserted that the latter function should be added because the other functions, presumably including to "assign," are sometimes performed by the modern personnel office. Id. at 704. That would not be the case for the assignment of daily work duties, even if more "significant" than "discrete tasks."
346. See supra text accompanying note 44-46.
347. Oakwood Healthcare, 348 N.L.R.B. at 689.
348. Id.
349. Id. at 690 n.26
350. Id. at 699 ("In deciding this case, moreover, we intentionally eschewed a resultsoriented approach⋯").
351. Id. at 690.
352. Id. at 689-92.
353. Id. at 693. The majority also stressed that the statutory definition "provides a baseline for the degree of discretion required" by contrasting actions that entail '"independent judgment' with actions that are 'of a merely routine or clerical nature.'" Id. at 693 (quoting 29 U.S.C. § 152(11) (2000)).
354. Id. at 705 (Liebman & Walsh, Members, dissenting). The dissenters relied on a study finding that "2.3 million unlicensed health care workers ⋯ supplement the work of licensed nurses by performing basic patient care activities under the supervision of an RN [registered nurse] or LPN/LVN [licensed practical nurse/licensed vocation nurse]."
355. Id. at 705 n.25 (quoting COMM. ON THE WORK ENV'T FOR NURSES AND PATIENT SAFETY, KEEPING PATIENTS SAFE: TRANSFORMING THE WORK ENVIRONMENT OF NURSES 66 (Ann Page ed., National Academies Press 2004)).
356. I have never known a dean, for instance, who wanted to evaluate law professors on how well they directed secretaries to help complete tasks.
357. Oakwood Healthcare, 348 N.L.R.B. at 707 (Liebman & Walsh, Members, dissenting) ("[E]mployers eager to take nurses out of the Act's protection might well choose to hold them accountable for ⋯ minor matters.").
358. The Board in Oakwood Healthcare indeed found that the employer had not demonstrated that the "charge nurses," whom it claimed should be excluded from a collective bargaining unit as statutory supervisors, had been held accountable for the performance by other employees of the tasks that they directed. Id. at 695 (majority opinion). Similarly, in a companion case addressing the inclusion of charge nurses in a collective bargaining unit of nurses at a nursing home, the Board found the "prospect of adverse consequences" for their subordinates' performance "merely speculative and insufficient to establish accountability." Beverly Enters.-Minn., Inc., 348 N.L.R.B. 727, 731 (2006);
359. see also I.H.S. Acquisition No.114, Inc., 350 N.L.R.B. No. 44, slip op. at 2 (July 31, 2007) (finding nurses were not shown to have accountability or to exercise "independent judgment" because reassignment of aides from an overstaffed unit to an understaffed unit was not more than routine or clerical). In Oakwood Healthcare, however, the Board found that the permanent charge nurses were supervisors because of their authority to "assign" nursing personnel to particular patients during their shifts, even though they did not have authority to assign the personnel to particular shifts or positions in the hospital. Oakwood Healthcare, 348 N.L.R.B. at 694.
360. 348 N.L.R.B. 717 (2006).
361. See Oakwood Healthcare, 348 N.L.R.B. at 691.
362. The Board, for instance, held in Crofts Metals that the employer failed to establish that "lead persons" with accountable authority to "direct" other employees had been delegated discretion to use "independent judgment" that rises above the "routine or clerical" in doing so. Croft Metals, 348 N.L.R.B. at 722. In later cases, the Board has found manufacturing and construction workers not to be statutory supervisors notwithstanding their authority over other workers, because the authority was not shown to require the use of "independent judgment."
363. * 1-2 n.6 (Mar. 21, 2007).
364. See supra text accompanying notes 174-176, 236-237.
365. See Oakwood Healthcare, 348 N.L.R.B. at 699.
366. Just as it is unlikely that a union will obtain judicial review of a Board decision to refuse to recognize a Sturgis bargaining unit, See supra note 173, so is it unlikely that a union will secure judicial review of any Board decision to exclude employees as supervisors from prospective bargaining units. Inasmuch as supervisors are not protected from unfair labor practices, however, the scope of the supervisory exclusion can be presented in a Board decision in a section 8 case for which a union or the excluded employee can seek judicial review.
367. *l-2 (finding an employer committed an unfair labor practice by terminating an employee who was not a statutory supervisor). An employer can also assert an employee is not a statutory supervisor in a section 8 case in order to claim it was not responsible for the employee's inhibition of section 7 activity.
368. *5 ("In view of our determination that the Respondents' foremen are not supervisors, we reverse the judge's findings that certain of their actions violated Section 8(a)(1).").
369. See supra note 7 (discussing the general slant of Bush-appointed Board majorities favoring management interests).
370. See generally Thomas J. Miles & Cass Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 851 (2006) (finding empirical support in an analysis of NLRB cases for the proposition that the "political predisposition of the judges influences the judicial review of agency decisions").
371. See CHRISTOPHER L. TOMLINS, THE STATE AND THE UNIONS: LABOR RELATIONS, LAW, AND THE ORGANIZED LABOR MOVEMENT IN AMERICA, 1880-1960, at 44-52, 117-18 (1985).
372. See, e.g., Flynn, supra note 30, at 443-46.
373. See Harper, supra note 173, at 298.
374. See, e.g., Buffalo Forge Co. v. United Steelworkers of Am., 428 U.S. 397, 413-14 (1976) (Stevens, J., dissenting) (joined by Justices Brennan, Marshall, and Powell, disagreeing with the majority opinion's restriction on the authority of federal courts to enjoin sympathy strikes); NLRB v. Bell Aerospace Co., 416 U.S. 267, 295 (1974) (White, J., dissenting) (joined by Justices Brennan, Stewart, and Marshall, disagreeing with the majority opinion's restriction on the Board's authority to limit the managerial exemption from employees covered by the Act);
375. cf. Ky. Retirement Sys. v. EEOC, 128 U.S. 2361, 2371 (2008) (Kennedy, J., dissenting) (joined by Justices Scalia, Ginsburg, and Alito, dissenting from the majority opinion allowing an employer covered by age discrimination prohibitions to consider age indirectly in setting disability retirement benefits).