The NLRB in administrative law exile: Problems with its structure and function and suggestions for reform

Duke Law Journal

Volumn 58, Issue 8, 2009, Pages 2013-2085

  Fisk, Catherine L ^a   Malamud, Deborah C ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b NEW YORK UNIVERSITY   (United States)

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EID: 68049104104     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (290)

1. See James M. Landis, The Administrative Process 15-16 (1938).
2. Id. at 16.
3. See id. at 37-39.
4. See id. at 38-40.
5. See id. at 40-46.
6. See id. at 150-55.
7. Id. at 16-17.
8. For important early examples, see james b. Atleson, Values And Assumptions in Labor Law (1983).
9. One particularly egregious example was Board policy on the regulation of misrepresentations made during election campaigns. For a discussion, see, for example, Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 Admin. L. Rev. 163, 163-75 (1985).
10. See National Labor Relations Act, 29 U.S.C. § 154(b) (2006) (added by the Taft-Hartley Act, Pub. L. No. 80-101, 61 Stat. 136 (1947) (codified at 29 U.S.C. §§ 141-87 (2006)) ("Nothing in this Act shall be construed to authorize the Board to appoint individuals for the purpose of conciliation or mediation, or for economic analysis.")). For the disputes leading up to this provision, see James Gross, The Remaking of The National Labor Relations Board: National Labor Policy in Transition 1937-1947, at 5-225 (1981).
11. For two excellent and broad-ranging recent critiques, see James J. Brudney, Isolated and Politicized: The NLRB's Uncertain Future, 26 Comp. Lab. L. & Pol'y J. 221, 241-52 (2005).
12. Cynthia Estlund, The Ossification of American Labor Law, 102 COLUM. L. REV. 1527, 1535-44 (2002).
13. See, e.g., Merton C. Bernstein, The NLRB's Adjudication-Rule Making Dilemma Under the Administrative Procedure Act, 79 YALE L.J. 571, 610-22 (1970); Brudney, supra note 11, at 234-37.
14. Estreicher, supra note 9, at 175-77; Cornelius J. Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 YALE L.J. 729, 752-62 (1960).
15. Cornelius J. Peck, A Critique of the National Labor Relations Board's Performance in Policy Formulation: Adjudication and Rule-Making, 117 U. PA. L. REV. 254, 260-75 (1968).
16. Clyde W. Summers, Politics, Policy Making, and the NLRB, 6 SYRACUSE L. REV. 93, 105-07 (1954).
17. Ronald Turner, Ideological Voting on the National Labor Relations Board, 8 U PA. J. LAB. & EMP. L. 707, 752-61 (2006).
18. George W. Chesrow, Comment, NLRB Policymaking: The Rulemaking-Adjudication Dilemma Revisited in NLRB v. Bell Aerospace Co., 29 U. Miami L. Rev. 559, 570-82 (1975).
19. A classic discussion of the advantages and disadvantages of rulemaking and adjudication as policymaking vehicles, including but not limited to discussion of the NLRB, is David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 HARV. L. REV. 921 passim (1965). Indeed, The President's Committee on Administrative Management recommended to President Roosevelt and Congress in 1937-just two years after the passage of the Wagner Act-that in general Congress should consider whether it is not desirable for the rule-making power further to penetrate into those areas of policy determination now preempted by commissions that develop such policies as a mere byproduct of administrative adjudication.. .. It is one thing to allow sufficient discretion in individual cases to make possible the adaptation of general rules to the peculiar facts of each case. It is quite another to have no general rules, other than empty statutory formulas, to guide particular adjudications. The president's Comm. on Admin. Mgmt., Report of The Committee With Studies of Administrative Management in the Federal Government 316, 332, (1937)
20. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294-95 (1974); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765-66 (1969); see also United States v. Mead Corp., 533 U.S. 218, 229-31 (2001) (including both notice-and-comment rulemaking and formal adjudication as "relatively formal administrative procedure[s] tending to foster the fairness and deliberation that should underlie a pronouncement" with force of law); cf. SEC v. Chenery, 318 U.S. 80, 94-95 (1943) (suggesting that the courts' review of administrative decisions is limited to whether "the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained").
21. One example of the longstanding judicial frustration may be found in the many decisions rejecting the Board's interpretation of section 2(11), which excludes supervisors from the definition of employees entitled to the protection of the NLRA. The history of the supervisory exclusion, with particular focus on the ongoing controversy about which health care employees are supervisors, is covered in Marley S. Weiss, Kentucky River at the Intersection of Professional and Supervisory Status: Fertile Delta or Bermuda Triangle?, in Labor Law Stories 353-98 (Laura J. Cooper & Catherine L. Fisk eds., 2005).
22. See, e.g., Regulatory Flexibility Act of 1980, 5 U.S.C. §§ 601-12 (2006); Administrative Review Act, 5 U.S.C. §§ 801-08 (2006). This is not to say that Congress and the Executive could not come up with regulatory reform strategies for agency adjudication, but they have not done so.
23. Appropriate Bargaining Units in the Health Care Industry, 54 Fed. Reg. 16,347 (Apr. 21, 1989) (codified at 29 C.F.R. § 103.30 (2008)).
24. Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 613-20 (1991); Mark H. Grunewald, The NLRB's First Rulemaking: An Exercise in Pragmatism, 41 DUKE L.J. 274 passim (1991) (describing the NLRB's rulemaking process and subsequent litigation regarding the rule). See generally William B. Gould IV, Labored Relations: Law, Politics, and the Nlrb-A Memoir 69-74 (2000) ("The Board's rule making, which was approved by the Supreme Court in American Hospital Association v. NLRB, had substantially diminished litigation in this industry."). The Administrative Conference of the United States issued recommendations regarding, inter alia, "Facilitating the Use of Rulemaking by the National Labor Relations Board" in the aftermath of that rulemaking. 56 Fed. Reg. 33,841, 33,851-52 (July 24, 1991) (codified at 1 C.F.R. § 305.91-5 (2006) ("This recommendation, while recognizing that the Board will justifiably continue to make policy through adjudication, suggests steps to facilitate further rulemaking by the Board. .. .").
25. See, e.g., Unified Agenda, National Labor Relations Board, 63 Fed. Reg. 23,036, 23,036 (Apr. 27, 1998) (withdrawing notice of proposed rulemaking on some questions of remedies "frequently appearing in Board decisions"); Unified Agenda, National Labor Relations Board, 61 Fed. Reg. 24,045, 24,045 (May 13, 1996) (withdrawing notice of proposed rulemaking on the duties of labor organizations under Beck, choosing instead "to address the issues raised following the Beck decision on a case-by-case basis through its adjudicatory procedures"). To be fair, on some occasions Congress blocks the NLRB from pursuing rulemaking. See, e.g., Unified Agenda, National Labor Relations Board, 61 Fed. Reg. 63,528, 63,528-29 (Nov. 29, 1996) (explaining a lack of action in a notice of proposed rulemaking regarding the appropriateness of requested single-location bargaining units in representation cases because "a rider attached to the 1996 and 1997 appropriations bills prohibits the Agency from expending any funds to promulgate a final rule"). After a 1998 rider to the same effect, the Board indefinitely withdrew the notice of proposed rulemaking over the dissent of Chairman Gould. Unified Agenda, National Labor Relations Board, 63 Fed. Reg. 23,036, 23,036-37 (Apr. 27, 1998).
26. For the proposal, see Robert W. Hahn & Cass R. Sunstein, A New Executive Order for Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis, 150 U. PA. L. Rev. 1489, 1494-97 (2002). For early proposals on the exercise of executive control over rulemaking (but not adjudication) by independent agencies, see The President's Comm. on Admin. MGMT., supra note 12, at 333.
27. See Brudney, supra note 11, at 228; Estlund, supra note 11, at 1530.
28. Employee Free Choice Act of 2009, H.R. 1409, 111th Cong. (2009); Employee Free Choice Act of 2009, S. 560, 111th Cong. (2009).
29. We use Bush II Board to refer to the Board during the eight-year administration of President George W. Bush. Bush I Board refers to the Board during the administration of President George H.W. Bush.
30. Joan Flynn, A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 61 Ohio ST. L.J. 1361, 1367-68 (2000).
31. Id. at 1369, 1392.
32. Dana Corp., 351 N.L.R.B. 434 (2007).
33. Id. at 434-35.
34. See generally James J. Brudney, Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms, 90 Iowa L. Rev. 819, 824-40 (2005) (detailing the proliferation of card-check agreements beginning in the 1970s and accelerating in the 1990s)
35. Benjamin Sachs, Card Check and Employee Choice: A New Altering Rule for Labor Law's Asymmetric Default, 123 Harv. L. Rev. (forthcoming Jan. 2010) (manuscript at 13-21, on file with the Duke Law Journal) (analyzing contemporary use of authorization cards and proposing reforms to maximize employee free choice and informed decisionmaking and to minimize potential for union or employer coercion during the union organizing process).
36. Employee Free Choice Act of 2009, H.R. 1409, 111th Cong. § 2 (2009); Employee Free Choice Act of 2009, S. 560, 111th Cong. § 2 (2009).
37. Dana, 351 N.L.R.B. at 441-44.
38. National Labor Relations Act § 7, 29 U.S.C. § 157 (2006).
39. Aladdin Gaming, L.L.C., 345 N.L.R.B. 585 (2005).
40. Id. at 587-88.
41. Id. at 589-90 (Liebman, Member, dissenting in part).
42. Int'l Protective Servs., Inc., 339 N.L.R.B. 701 (2003).
43. Id. at 702-03.
44. Endicott Interconnect Techs., Inc., 345 N.L.R.B. 448 (2005).
45. Id. at 448-49.
46. Id. at 449.
47. Id. at 452-53 (Battista, Chairman, dissenting).
48. Guard Publ'g Co., 351 N.L.R.B. 1110 (2007).
49. Id. at 1114-16.
50. See Aladdin Gaming, L.L.C., 345 N.L.R.B. 585, 587-88 (2005).
51. 29 U.S.C. § 157 (2006).
52. See, e.g., Eastex, Inc. v. NLRB, 437 U.S. 556, 570-76 (1978) (concluding that section 7 protects distribution of leaflets urging support for an increase in the minimum wage, urging opposition to the enactment of a state right to work law, and generally urging workers to support politicians who were friends of labor, even though none of the political activity mentioned in the leaflet would directly affect the employees' working conditions).
53. Timekeeping Sys., 323 N.L.R.B. 244, 245-47 (1997).
54. Tri-Country Transp., Inc., 331 N.L.R.B. 1153, 1154 (2000).
55. Holling Press, Inc., 343 N.L.R.B. 301, 301 (2004).
56. Orchard Park Health Care Ctr., Inc., 341 N.L.R.B. 642, 642 (2004).
57. Holling Press, 343 N.L.R.B. at 309.
58. Orchard Park Health Care, 341 N.L.R.B. at 643.
59. IBM Corp., 341 N.L.R.B. 1288, 1288 (2004).
60. Epilepsy Found., 331 N.L.R.B. 676, 680 (2000).
61. See Sears, Roebuck & Co., 274 N.L.R.B. 230, 232 (1985) (reversing Materials Research Corp., 262 N.L.R.B. 1010 (1982), which held that a right to union representation at a disciplinary interview extended to nonunionized employees).
62. See Materials Research Corp., 262 N.L.R.B. at 1016.
63. Martin Luther Mem'l Home, Inc., 343 N.L.R.B. 646 (2004).
64. Id. at 647.
65. Albertson's, Inc., 351 N.L.R.B. 254 (2007).
66. Id. at 375.
67. See Adtranz ABB Daimler-Benz Transp., N.A., Inc., 331 N.L.R.B. 291, 293 (2000), enforcement denied in part, 253 F.3d 19 (D.C. Cir. 2001); Flamingo Hilton-Laughlin, 330 N.L.R.B. 287, 287-88 (1999); Lafayette Park Hotel, 326 N.L.R.B. 824, 833 (1998). The Adtranz and Lafayette cases are discussed in William R. Corbett, The Narrowing of the National Labor Relations Act: Maintaining Workplace Decorum and Avoiding Liability, 27 Berkeley J. Emp. & LAB. L. 23, 41-44 (2006).
68. See, e.g., Randal C. Archibold, Immigrants Take to U.S. Streets in Show of Strength, N.Y. TIMES, May 2, 2006, at A1; Jenalia Moreno, Cynthia Leonor Garza & Eyder Peralta, Fears Didn't Deter Protests: Thousands of Migrants Join In Despite Worries of Losing Jobs, Rumors of Raids, Houston Chron., May 3, 2006, at B1.
69. Jenalia Moreno, Cynthia Leonor Garza & Eyder Peralta, Fears Didn't Deter Protests: Thousands of Migrants Join In Despite Worries of Losing Jobs, Rumors of Raids, Houston Chron., May 3, 2006, at B1
70. See generally Am. Cable Co., N.L.R.B. Gen. Couns. Advice Memorandum 4-CA-34669 (Feb. 21, 2007), available at http://www.nlrb.gov/shared_files/Advice%20Memos/2007/4-CA-34669.pdf (concluding that even if participation in the "Day Without Immigrants" rallies is protected under section 7, the employer was nevertheless justified in discharging employees because of the harm work stoppages cause to business); Fire Fab., Inc., N.L.R.B Gen. Couns. Advice Memorandum 32-CA-22668 (Dec. 4, 2006), available at http://www.nlrb.gov/shared_files/Advice%20Memos/2006/32-CA-22668.pdf; CALMEX, Inc., N.L.R.B Gen. Couns. Advice Memorandum 32-CA-22651 (Nov. 30, 2006), available at http://www.nlrb.gov/shared_files/Advice%20Memos/2006/32-CA-22651.pdf (concluding the same); Reliable Maint., N.L.R.B Gen. Couns. Advice Memorandum 18-CA-18119 (Oct. 31, 2006), available at http://www.nlrb.gov/shared_files/Advice%20Memos/2006/18-CA-18119.pdf (concluding the same). For a general discussion of whether section 7 protects worker participation in such rallies, see Michael C. Duff, Days Without Immigrants: Analysis and Implications of the Treatment of Immigration Rallies Under the National Labor Relations Act, 85 DENV. U. L. REV. 93 (2007).
71. Some of the critiques-many of which are partisan-include 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 (2007) (Gould, a Stanford law professor, was Chair of the NLRB during the Clinton administration); Jonathan P. Hiatt & Craig Becker, Response, At Age 70 Should the Wagner Act Be Retired? A Response to Professor Dannin, 26 Berkeley J. Emp. & LAB. L. 293 (2005) (Hiatt and Becker are prominent unionside lawyers and Becker was formerly a law professor at UCLA); Wilma Liebman, Essay, Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board, 28 Berkeley J. Emp. & LAB. L. 569 (2007) (Liebman, who was appointed Chair of the NLRB by President Obama, was originally appointed to the Board by President Clinton and was a unionside lawyer before entering government service).
72. See supra text accompanying notes 55-56; see also Charles I. Cohen, Neutrality Agreements: Will the NLRB Sanction Its Own Obsolescence?, 16 LAB. LAW. 201, 201 (2000) (discussing neutrality agreements, which allow for unionization outside of the NLRB regulation and recognition process); Duff, supra note 65, at 150 (arguing that the NLRB should extend protection to unauthorized workers when appropriate); David Rosenfeld, Worker Centers: Emerging Labor Organizations-Until They Confront the National Labor Relations Act, 27 Berkeley J. Emp. & LAB. L. 469, 512-13 (2006) (describing work centers as an alternative to unions for low-wage workers).
73. On the expanding exclusion of supervisors, see NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), which held that, in some cases, nurses may qualify as supervisors under the National Labor Relations Act, id. at 712-13, 717, and Oakwood Healthcare, Inc., 348 N.L.R.B. 686 (2006), which excluded "rotating charge nurses" as statutory supervisors, id. at 694. In Croft Metals, Inc., 348 N.L.R.B. 717 (2006), however, the Board found that the lead persons at a factory did not have supervisory authority because they did not exercise independent judgment in directing their crew members. Id. at 722. Similarly, in Beverly Enterprises-Minnesota. Inc., 348 N.L.R.B. 727 (2006), the Board held that the employer's charge nurses were employees rather than supervisors. Id. at 732. On leased employees, see Oakwood Care Center, 343 N.L.R.B. 659, 663 (2004). On independent contractors, see Roadway Package System, Inc., 326 N.L.R.B. 842 (1998), which held that delivery truck drivers are employees, id. at 854, and Dial-A-Mattress Operating Corp., 326 N.L.R.B. 884 (1998), which held that delivery truck drivers are independent contractors, id. at 894. For a discussion of the obstacles that temporary workers face in their attempts to unionize, see generally Bita Rahebi, Comment, Rethinking the National Labor Relations Board's Treatment of Temporary Workers: Granting Greater Access to Unionization, 47 Ucla L. Rev. 1105 (2000).
74. See, e.g., Paul Weiler, Promises to Keep: Securing Workers' Rights to Self-Organization Under the NLRA, 96 Harv. L. Rev. 1769 (1983).
75. 29 U.S.C. § 160(j) (2006).
76. See Nat'l Labor Relations Bd., Casehandling Manual § 10200 (2008), available at http://www.nlrb.gov/nlrb/legal/manuals/CHM1/CHM1.pdf.
77. See id.
78. The memoir of Professor William B. Gould IV, the chair of the Clinton Board, explains the significance of the Board's section 10(j) initiative. See Gould, supra note 17, at 65-67, 178-82, 300-02. Professor Gould's earlier book, William B. Gould IV, Agenda for Reform: The Future of Employment Relationship and the LAW (1993), made the case for various procedural reforms to increase incentives for compliance with labor law.
79. The data in Table 1 were provided to the authors by the NLRB Division of Information. The data for FY 2008 are drawn from Memorandum from Ronald Meisburg, Gen. Counsel, Office of the U.S. Gen. Counsel, to All Employees of the Office of the U.S. Gen. Counsel, Summary of Operations (Fiscal Year 2008), at 9-10 (Oct. 29, 2008), available at http://www.nlrb.gov/shared_files/GC%20Memo/2009/GC%2009-03%20Summary%20of%20Operations%20FY%2008.pdf. Data are not reported for FY 2008 for GC 10(j) requests to the Board and Board denials because the NLRB delegated 10(j) authority to the General Counsel during FY 2008 at the time when the Board's membership fell to two. For a discussion of the significance of the change in Board policy on section 10(j), see William B. Gould IV, The NLRB at 70: Some Reflections on the Clinton Board and the Bush II Aftermath, 26 Berkeley J. Emp. & LAB. L. 309, 316 (2005).
80. Utilization of section 10(j) Proceedings, N.L.R.B. Gen. Couns. Memorandum 02-07 (Aug. 9, 2002), available at http://www.nlrb.gov/shared_files/GC%20Memo/2002/gc02-07.html ("[T]he Section 10(j) program is, and must continue to be, an important tool in administering the Act.").
81. In Raley's Supermarkets & Drug Centers, 349 N.L.R.B. 26 (2007), the Board both reduced the employer's duty to disclose information to the union necessary to process grievances and effectively imposed a heightened pleading requirement on the General Counsel to prove that the employer failed to provide the union with the information necessary to represent an employee in a grievance. Id. at 28. In that case, the union twice requested information that the employer had assembled regarding alleged incidents of harassment and retaliatory transfer. Id. at 26. The employer simply informed the union that the employees whom it interviewed had not complained of disrespectful treatment and "we believe the situation has been addressed and the matter closed." Id. Only during the hearing on the unfair labor practice charge did the employer reveal that it had decided that the grievances lacked merit, it had not prepared a report of its investigation, and it had taken no remedial actions in response to the allegations. Id. at 27. The Board held that the employer had no duty to provide witness statements or to inform the union that it had taken no action on the incidents and had prepared no report of its investigation. The Board also held that the employer's failure to inform the union that it had no report was not an unfair labor practice because the General Counsel had alleged only that the employer failed to provide the report and had not specifically alleged that the employer failed to inform the union of the nonexistence of the report. Id. at 28. Although the Board purported to make no new law, the dissent pointed out that cases from the Clinton Board had found the employer to have a duty to provide investigation reports and files, and that it suffices for the General Counsel to allege that the employer failed to provide information rather than having to allege that the employer failed to state that the requested information did not exist. See id. at 28-30 (Liebman, Member, dissenting) (citing Postal Serv., 332 N.L.R.B. 635 (2000)); Care Manor of Farmington, Inc., 318 N.L.R.B. 330 (1995); Gloversville Embossing Corp., 314 N.L.R.B. 1258 (1994)). In St. George Warehouse, 351 N.L.R.B. 961 (2007), the Board majority switched the burden of proof from the employer to the General Counsel to show mitigation of damages in the case of illegal discharge. Id. at 961. In other cases, the Board changed rules in ways that make it more difficult to prove or to recover remedies in cases involving unfair labor practices against "salt," union members who apply for jobs for purposes of organizing a workplace. See Toering Elec. Co., 351 N.L.R.B. 225, 234 (2007); Oil Capitol Sheet Metal, Inc., 349 N.L.R.B. 1348, 1353 (2007).
82. John-Paul Ferguson, The Eyes of the Needles: A Sequential Model of Union Organizing Drives, 1999-2004, 62 INDUS. & LAB. REL. REV. 3, 16 (2008); see also Dunlop Comm'n, the Dunlop Commission Report on the Future of Worker-Management Relations: Final Report 39 (2004) (observing that "[r]oughly a third of workplaces that vote to be represented by a union do not obtain a collective bargaining contract").
83. See, e.g., Dunlop Comm'n, supra note 77, at 45 (describing proposals that would mandate arbitration in cases of bad faith bargaining, and concluding that it is difficult to distinguish between bad faith bargaining and "permissible hard bargaining").
84. Charles J. Morris, The Role of the NLRB and the Courts in the Collective Bargaining Process: A Fresh Look at the Conventional Wisdom and Unconventional Remedies, 30 Vand. L. Rev. 661, 668 (observing that the duty to bargain does not fully capture the "grey area" touching upon "entrepreneurial decision-making" when there is little expectation of reaching an agreement)
85. Theodore St. Antoine, A Touchstone for Labor Board Remedies, 14 WAYNE L. REV. 1039, 1046 (1968) (arguing that "the fact that a contract might not have emerged from bargaining does not necessarily preclude" compensation under the NLRA)
86. H.K. Porter Co. v. NLRB, 397 U.S. 99, 102 (1970); see also NLRB v. Am. Nat'l Ins. Co., 343 U.S. 395, 404 (1952) ("[T]he Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.").
87. See, e.g., J. Freedley Hunsicker, Jr., Jonathan Kane & Peter D. Walther, Jr., Nlrb Remedies For Unfair Labor Practices (2d ed. 1986).
88. Section 8(d) of the NLRA, added as part of the Taft-Hartley Act, defines the duty to bargain in general terms with the proviso that "such obligation does not compel either party to agree to a proposal or require the making of a concession." 29 U.S.C. § 158(d) (2006). Scholars, courts, and Board members have debated for decades whether this language compels the conclusion that no remedy can be imposed that would have the effect of preventing a strong employer from, as one scholar put it, "talk[ing] a union to death." See, e.g., Archibald Cox, The Duty to Bargain in Good Faith, 71 HARV. L. REV. 1401, 1412-13 (1958) ("As long as there are unions weak enough to be talked to death, there will be employers who are tempted to engage in the forms of collective bargaining without the substance. The concept of 'good faith' was brought into the law of collective bargaining as a solution to this problem.").
89. Employee Free Choice Act of 2009, H.R. 1409, 110 Cong. § 3 (2009).
90. In Ex-Cell-O Corp., 185 N.L.R.B. 107 (1970), the Board split 3 to 2 on the question whether the Board could issue compensatory remedies for failures to bargain in good faith. Id. at 114. As scholars have pointed out, ample data based on the employer's contracts at other unionized plants enabled relatively precise calculation of the economic harms caused to employees by the employer's illegal conduct, and state labor boards do issue compensatory remedies in failure-to-bargain cases. See George Arakelian Farms, Inc. v. ALRB, 783 P.2d 749, 758 (Cal. 1989) (observing that when the employer's "election challenges are merely a stalling tactic designed to thwart union organization," makeshift compensation by the Board "compensate[s] the employees for the actual loss of the opportunity to negotiate an agreement").
91. See generally Christopher L. Tomlins, The State and The Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960 (1985) (tracing the historical development of the National Labor Relations Act, including the Wagner and Taft-Hartley Amendments).
92. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1227 (2001) (developing the concept of super-statutes and using the NLRA as an example).
93. See Nelson Lichtenstein, Politicized Unions and the New Deal Model: Labor, Business and Taft-Hartley, in The New Deal and the Triumph of Liberalism 135, 138 (Sidney M. Milkis & Jerome M. Mileur eds., 2002) (discussing the work of George Lipsitz and David Plotke); see also Estlund, supra note 11, at 1533-35 ("The Taft-Hartley Act. .. represented a major setback for the labor movement.. .. But the 1947 amendments worked largely by addition, not subtraction; they left the core provisions of the original New Deal text-and in particular the existing employer unfair labor practices-essentially intact."); cf. Archibald Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 HARV. L. REV. 274, 274 (1961) (arguing that Taft-Hartley "appears to reject the policy of encouraging the spread of collective bargaining, [and] accepts the institution where it already exists").
94. See, e.g., Nelson Lichtenstein, Taft-Hartley: A Slave-Labor Law?, 47 CATH. U. L. REV. 763, 765 (1998); see also Katherine Van Wetzel Stone, The Postwar Paradigm in American Labor Law, 90 YALE L.J. 1509, 1518-65 (1981) (discussing industrial pluralism and its negative impact on labor unions).
95. See, e.g., Lichtenstein, supra note 86, at 138-41 (describing the work of scholars, like Christopher Tomlins, who critique the Wagner Act as statist and therefore do not see Taft-Hartley as a deradicalization of the Wagner Act, and then arguing that this position is inconsistent with the historical evidence of the urgency with which labor's supporters opposed Taft-Hartley); cf. TOMLINS, supra note 84, at 280 (contrasting the rhetoric of labor's supporters regarding Taft-Hartley's alleged radicalization with the law's modest substantive changes).
96. See Atleson, supra note 8, at 19-34; Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 MINN. L. REV. 265, 292-93 (1978); Katherine Van Wetzel Stone, The Future of Collective Bargaining: A Review Essay, 58 U. CIN. L. REV. 477, 484-85 (1989) (book review) ("Both Professor Karl Klare and I have argued that the Wagner Act grew out of a widespread perception that there was a public interest and a public stake in the fairness of the terms of the wage bargain. Accordingly, the Act brought labor issues into the public arena and made it a legitimate role of government to intervene to equalize the bargaining power of labor and management. We both claim that despite this mission, the Wagner Act has been interpreted so as to relegate labor issues back to the private realm.")
97. cf. Julius G. Getman and Thomas Kohler, The Story of NLRB v. Mackay Radio & Telegraph Co.: The High Cost of Solidarity, in Labor Law Stories, supra note 14, at 13, 44-46 (arguing that the Wagner Act provided merely a "framework for private ordering, but not the substance of that order").
98. The liberal-conservative split was on display during December 13, 2007, joint hearings before the House Subcommittee on Health, Employment, Labor and Pensions, Committee on Education and Labor and the Subcommittee on Employment and Workplace Safety, Committee on Health, Employment, Labor and Pensions. See The National Labor Relations Board: Recent Decisions and Their Impact on Workers' Rights: Joint Hearing Before the H. Subcomm. on Health, Employment, Labor and Pens. of the H. Comm. on Education & Labor, & the S. Subcomm. on Employment & Workplace Safety of the S. Comm. on Health, Educ., Labor & Pens., 110th Cong. 1-124 (2007).
99. The legislative findings in section 1 of the Wagner Act said "[t]he denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest," which impairs commerce or "cause[es] [substantial] diminution of employment and wages," and that the inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry. National Labor Relations Act, Pub. L. No. 74-198, § 1, 49 Stat. 449, 449 (1935) (codified as amended at 29 U.S.C. § 151 (2006)).
100. The legislative findings in section 1 of the Taft-Hartley Act said "Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce. .. through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public. .. ." Labor Management Relations (Taft Hartley) Act, 1947, Pub. L. No. 80-101, § 1, 137, 61 Stat. 136 (1947) (codified at 29 U.S.C. §§ 151-66).
101. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1377 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); see also Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol'y 59, 63 (1988) ("To use an algebraic metaphor, law is like a vector. It has length as well as direction. We must find both, or we know nothing of value. To find length we must take account of objectives, of means chosen, and of stopping places identified. All are important.").
102. United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979). In this case, the Supreme Court upheld voluntary affirmative action under Title VII of the Civil Rights Act of 1964. Id. at 197.
103. See Deborah C. Malamud, The Story of United Steelworkers of America v. Weber, in Employment Discrimination Stories 173, 212-13, 218-19 (Joel Wm. Friedman ed., 2006).
104. The specific Hart & Sacks language quoted in text is not included in the legislation casebook coauthored by the editors of the Hart & Sacks legal process materials. William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 697 (3d ed. 2001) (substituting a paraphrase). The concept we call bounded purpose may fall within the casebook editors' concept of imaginative reconstruction, which they draw in part from the work of Judge Richard Posner. See id. at 684-85, 685 n.n. (citing Richard A. Posner, The Federal Courts: Crisis and Reform 286-93 (1985)). Judge Posner suggests that Hart and Sacks are "reluctan[t] to recognize that statutes often are the product of compromise between opposing groups and that a compromise is unlikely to embody a single consistent purpose." Posner, supra, at 289. Bounded purpose is a way of expressing the purposeful-as opposed to the purely strategic-nature of at least some legislative compromises.
105. Johnson v. Transp. Agency, 480 U.S. 616, 626-27 (1987).
106. This vocabulary is both less absolutist and far more useful than is, for example, reliance on the formalistic "canon against implied repeals." For a critique of the canon, see Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 812-13 (1983). The canon would seem particularly inapt when the later statute is explicitly formulated as an amendment to the earlier statute.
107. Cf. Estlund, supra note 11, at 1528 ("As for collective bargaining, it is hard to be against the idea of fostering negotiations between the managers of an enterprise and the workers, speaking through their chosen representatives, over wages and working conditions. Putting aside the particular choices that labor and management have made (some of which now appear rigid and inefficient), and some of the particular embellishments added by the labor laws, collective bargaining in its essence responds to current demands for flexible accommodation to the market, to local conditions, and to change. It is at least potentially decentralized, tailored to local circumstances, flexible, and democratic." (emphasis added) (footnotes omitted)).
108. Schaumber, Liebman Discuss Dynamics of Two-Member Board, Daily Labor Rep., Sep. 18, 2008, at 2. The legality of a two-member Board deciding cases was recently upheld by the First Circuit, and remains under challenge elsewhere. Ne. Land Servs. Ltd. v. NLRB, No. 08-1878, 2009 WL 638248, at *5 (1st Cir. Mar. 13, 2009) (upholding the legality of a two-member board); Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, Nos. 08-1162 & 08-1214 (D.C. Cir. oral arguments held Dec. 4, 2008); DAILY LABOR REP., supra (noting other possible challenges). Members Schaumber and Liebman have, however, continued a general Board practice of indicating in opinions that one or the other would prefer to reexamine precedent but decline to do so "for institutional reasons." See, e.g., Lorge School & Linda Cooperman, 352 N.L.R.B. 119, 119 & n.5 (2008) (Schaumber); Resistflame Acquisition Co., 353 N.L.R.B. 1, 2-3 & n.3 (2009) (Liebman).
109. See, e.g., Charles H. Koch, FCC v. WNCN Listeners Guild: An Old-Fashioned Remedy for What Ails Current Judicial Review Law, 58 Admin. L. Rev. 981, 987-88 (2006) ("In policymaking, agencies are not to parse language, delve into legislative history, or engage in the other interpretive strategies. Rather, they are to make permissible, but not mandated, judgments based on legislative facts developed for that purpose. Courts may not ignore Congress and take over this function by converting into interpretation.. .. [especially when] the policy expressed in the statute is inchoate, incomplete, or insufficiently specific and the agency must actually make policy, not just find it in the statutory language.")
110. see also Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 Chi.-Kent L. Rev. 1253, 1289 (citing Nat'l Ass'n of Regulatory Util. Comm'rs v. Interstate Commerce Comm'n, 41 F.3d 721, 727 (D.C. Cir. 1994)) ("When Congress' instructions are conveyed at a high level of generality, an agency is not likely to consider its action as 'interpretation' of the authorizing statute, nor is that action likely to be challenged as 'misinterpretation.' (Yet even then, the agency would be expected to assert that a particular decision was shaped by the general policy concerns that animated the legislation.)")
111. Edward L. Rubin, Discretion and Its Discontents, 72 Chi.-Kent L. Rev. 1299, 1318 (1997) (stressing the "instrumental character" of agency policymaking in the face of unclear congressional commands) (1997)
112. Edward L. Rubin, Discretion and Its Discontents, 72 Chi.-Kent L. Rev. 1299, 1318 (1997) (stressing the "instrumental character" of agency policymaking in the face of unclear congressional commands).
113. This is in part an artifact of the lack of legislative activity in the field. See Estlund, supra note 11, at 1530-44.
114. For example, the NLRA defines "employee" entirely circularly as follows: "The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer. .. ." 29 U.S.C. § 152(3) (2006). Similarly, the NLRA protects, but does not define, "the right to strike." Id. § 163. The NLRA prohibits secondary boycotts (although it does not use that term) in terms so broad that, read literally, would prohibit primary strikes and picketing that are clearly protected by the NLRA, and it prohibits certain uses of picketing without defining what constitutes picketing. See generally Julius G. Getman, Bertrand B. Pogrebin & David L. Gregory, Labor Management Relations and the Law 267, 277 (2d ed. 1999) ("The Act does not define picketing. ... The Board, however, has interpreted 'picketing' liberally, focusing on some type of union activity near the entrances to the employer's business and the results of such activity.").
115. Examples of this approach to statutory purpose abound in the area of the duty to bargain in good faith, and the views of the statutory purpose are often thought to reflect a tension between two divergent purposes. In one view, a more interventionist view, the purpose of labor law is to facilitate a rational bargaining process that will produce agreement, and the Board and the courts are empowered to find particular bargaining tactics illegal based on the harm they cause to the process. See, e.g., NLRB v. Katz, 369 U.S. 736, 738-39 (1962) (holding that a unilateral change in terms before bargaining to impasse violates the duty to bargain); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153-54 (1956) (holding that the employer must provide information to the union to support its claim that the company could not afford a particular contract term). In another, more laissez-faire view, the purpose of labor law is only to provide the outer boundaries of economic struggle, and the Board lacks the power to regulate the fairness or rationality of the process. See, e.g., NLRB v. Ins. Agents' Int'l Union, 361 U.S. 477, 484 (1960) (holding that parties may use economic power away from the bargaining table to secure a more favorable agreement, and saying that "the most basic purpose" of the duty to bargain is to force the employer and union to negotiate but "what happens behind [the] doors [of the negotiating room] is not inquired into, and the bill does not seek to inquire into it").
116. For example, in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), the Court refused to defer to the Board's interpretation of the statutory term "employee" as including people employed by unions or by other employers who were attempting to organize employees at a worksite at which they did not work. Id. at 540-41. The Court, disregarding the statutory definition of "employee" as including "any employee, and shall not be limited to the employees of a particular employer," insisted that the organizers in question were not employees and therefore that neither they, nor the people who worked on the property, had rights to have them distribute literature in a shopping mall parking lot. Id. The Court said, "in Chevron terms. .. section 7 speaks to the issue of nonemployee access to an employer's property." Id. at 537. For the significance of the distinction between Chevron Steps One and Two, see National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 982-83 (2005).
117. For example, when Justice White raised the question, in Lechmere, whether the old statutory interpretation precedent being used in that case would be understood as a Chevron Step One or a Chevron Step Two decision, Lechmere, 502 U.S. at 545-47 (White, J., dissenting), he was asking the wrong question. The better question would be whether that precedent concerned law or policy. More attention has been paid by the Court to the line between board fact-finding and policymaking, see Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-80 (1997), than to the line between law and policy under the NLRA.
118. See, e.g., Michael Herz, The Rehnquist Court and Administrative Law, 99 NW. U. L. REV. 297, 314-18 (2004) (discussing the uncertain relationship between State Farm hard look review and Chevron Step Two).
119. Brand X, 545 U.S. at 982-83.
120. The National Labor Relations Board: Recent Decisions and Their Impact on Workers' Rights, supra note 90 passim.
121. Id. at 18 (statement of Hon. Robert Battista, Chairman, NLRB) (emphasis added). For further elaboration of Liebman's position, see Wilma B. Liebman, Labor Law Inside Out, 11 Workingusa 9, 16-18 (2008), available at http://ssrn.com/abstract=1134899.
122. The National Labor Relations Board: Recent Decisions and Their Impact on Workers' Rights, supra note 90, at 61 (statement of Wilma B. Liebman, Member, NLRB).
123. Id. at 78 (statement of Hon. Robert Battista, Chairman, NLRB).
124. Id. at 64 (statement of Wilma B. Liebman, Member, NLRB).
125. Id. at 64, 77, 78.
126. Id. at 76-77.
127. Cf. Brudney, supra note 11, at 253 (arguing that the weakening of the labor movement for reasons external to the NLRB "has surely helped to marginalize the status of the agency").
128. Thomas Geoghegan, Which Side are You on? Trying to be for Labor When it's Flat oN its Back 3-8 (1991)
129. See, e.g., Estlund, supra note 11, at 1528 ("As for collective bargaining, it is hard to be against the idea of fostering negotiations between managers of an enterprise and the workers, speaking through their chosen representatives, over wages and working conditions.").
130. On the history of the NLRA and the divergent policy goals of the Wagner Act and the Taft-Hartley Act, see generally TOMLINS, supra note 84, and sources cited supra note 86
131. James A. Gross, The Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law Volume I (1933-1937), at 147 (1974) [hereinafter GROSS, MAKING] (quoting Leon H. Keyserling, The Wagner Act: Its Origin and Current Significance, 29 GEO. WASH. L. REV. 199, 203 (1960)). For general discussion of the statute's passage, see GROSS, MAKING, supra, at 142-47. For other sources on the history of the National Labor Relations Board, see generally Irving Bernstein, Turbulent Years: A History of the American Worker 1933-1941 (1970)
132. James A. Gross, The Reshaping of the National Labor Relations Board: National Labor Policy in Transition 1937-1947 (1981) [hereinafter GROSS, RESHAPING]. One of the authors has done archival work on the Board during this period, in the National Archives Record Groups 25 (National Labor Relations Board) and 174 (Department of Labor), and at the Wisconsin Historical Archives in the papers of David Saposs, the Board's first and only Head of the Department of Economic Research. Those materials will be cited as "RG25", "RG174", and "Saposs", respectively.
133. John L. Lewis of the American Federation of Labor supported Perkins's position because labor already felt comfortable with Perkins and with its level of influence in her Department of Labor. RG25, Former Chairmen, Box 1, 1935 Biddle, unmarked folder (Substance of John L. Lewis's Remarks 1 (Mar. 19, 1935)).
134. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542 (1935).
135. Gross, Making, supra note 120, at 142-45
136. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 49 (1937).
137. NLRB v. Fruehauf Trailer Co., 301 U.S. 49, 57 (1937); NLRB v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 75 (1937); Associated Press v. NLRB, 301 U.S. 103, 133 (1937); Wash., Va. & Md. Coach Co. v. NLRB, 301 U.S. 142, 146-47 (1937).
138. Perkins, who was working with her Solicitor of Labor Charles Wyzanski on appointments, had asked Thurman Arnold, William O. Douglas, George Stocking, Charles Clark, and several others before settling on the candidates eventually appointed to the Board. RG174, Perkins, NLRB, boxes 84-85 (Letter from Charles E. Clark to Frances Perkins (Aug. 6, 1935); Letter from Thurman Arnold to Frances Perkins (Aug. 13, 1935); Memorandum to the President (Aug. 14, 1935); Telegram from Frances Perkins to Joseph Chamberlain). Clark, dean of Yale University School of Law, turned her down in part because "work under the act cannot be very interesting and effective until its validity has been sustained in part at least." RG174, Perkins, NLRB, Box 84 (Letter from Charles E. Clark to Frances Perkins (Aug. 9, 1935)).
139. For example, in a remarkable memorandum from Board attorney Benedict Wolf to the Board, reviewing the agency's first year, Wolf remarks that: The Board has lost some prestige, both with the public, and with the major figures of the Administration. It has no real power with the Congress or the President. I believe this result was inevitable, for the Board has functioned for a year without real power, without public support (except from labor, which hoped to gain by its actions, and which has inevitably disappointed, with a resultant loss of prestige even here), and without support from the leaders of the Administration. RG25, NLRB, Group 1, Former Chairmen's Files, Program Correspondence Files, Box 2, unmarked folder (Memorandum from Benedict Wolf, Board Attorney, to the Board (Apr. 1936)).
140. See, e.g., RG25, Former Chairmen, Box 1 Unmarked Files (Letter from Lloyd Garrison to Joseph Warren Madden, Chairman, NLRB (Jan. 18, 1936)) (advice from Lloyd Garrison); RG174, Perkins, NLRB Box 85 (Memorandum from J.R. Steelman to the Secretary, Craft-Industrial union case before NLRB (Feb. 28, 1936)) (discussion within Perkins's office that the Board had been advised that getting involved in AFL vs. CIO cases "would mean axiomatic suicide for the Board").
141. RG25, NLRB, Former Chairmen's Files, Program Correspondence, Box 1: Madden 1937, Regional Conference (Wednesday Morning Session (Oct. 27, 1937)).
142. For the hearings and their impact, see generally GROSS, RESHAPING, supra note 120, at 85-108
143. From the very beginnings of the "first" National Labor Relations Board, the Department of Labor warned the NLRB against any policymaking outside the context of adjudicated cases. When Edwin Smith, later a member of the first post-Wagner Act Board, excitedly wrote Perkins suggesting that "it would be desirable for the Board to start its work with some sort of statement of principles.. .. to let the public know at the start certain predispositions which the Board has," his idea was struck down by the Department of Labor with the message "it would be bad policy for the Board to say what it is going to do in advance." RG174, Frances Perkins, NLRB, Chron boxes 84-85 (Letter from Edwin S. Smith to Frances Perkins (July 3, 1934)). Perkins's highest compliment to NLRB Chairman Madden was that he had such a "judicially-minded tribunal." RG25, Former Chairmen, 1935, Biddle, Box 1 (Letter from Frances Perkins to Joseph Warren Madden (Nov. 8, 1935)). Her office's memorandum for the President's use in his first conversation with new members of the Board put forward that "[t]he work of the Board will be to decide specific cases and to refrain from research work," and that it "should discourage theoretical discussions." RG174, Frances Perkins, NLRB, Box 84 (Memorandum for the President's use in conversation with new members of the National Labor Relations Board (Aug. 1, 1935)). This position echoed think tank advice from the Twentieth Century Fund's Special Committee on the Government and Labor, which called for a "quasijudicial" labor tribunal that "should not be a policy making body but should confine itself to administering policy as defined in the laws." Saposs, 8-14, 1935 (Findings and Recommendations of the Special Committee of the Government and Labor of the Twentieth Century Fund, Inc. 4 (Mar. 4, 1935)). The irony here is that David Saposs worked on that Committee, and the quasi-judicial approach empowered the lawyers against the economists at the Board in ways that diminished his influence once he was appointed the Board's chief economist. Saposs reported that NLRB Chairman Madden hired him but had no idea of what his role would be, and that the lawyers on the Board had no respect for his office or the value of economic training, especially when it came to studies aimed at guiding the Board in its formulation of policy (as opposed to the development of a factual record on the impact of particular businesses on interstate commerce). GROSS, MAKING, supra note 120, at 173-76.
144. RG25, NLRB, Group 1, Former Chairmen's Files, Program Correspondence Files, Box 2 unmarked folder (Conference Memorandum, H.A.M. and Mr. Knapp on Chairman's Statement on S. 675, S. 674, S. 918, at Page 3, 8th line (Apr. 20, 1941) (transcript of conversations between Chairman Millis and his advisors in advance of congressional testimony).
145. National Archives, Smith Committee Files, General Counsel Files, Box 2, Blankenhorn (Memoranda of the Board from S.M. Wasserstrom to John Fahy, General Counsel 6 (Nov. 18, 1939)) (reviewing propriety of practices previously identified as potentially problematic for Smith Committee oversight).
146. For discussion of the NLRB's early attitudes toward white-collar unionization, see generally Deborah C. Malamud, Letting in the Company: The National Labor Relations Board and the White-Collar Worker in the New Deal (Nov. 2008) (unpublished manuscript, on file with the Duke Law Journal).
147. Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace 81-88 (2005).
148. James B. Atleson, Labor and the Wartime State: Labor Relations and Law During World War II 59 (1998). This was the case especially when it came to key organized war industries.
149. Brudney, supra note 11, at 241.
150. 29 U.S.C. § 185 (2006).
151. Id. § 158(a)(5).
152. See, e.g., Olin Corp., 268 N.R.L.B. 573, 573-74 (1984) (deferring to arbitration even when the arbitration only considered a parallel contract issue); United Techs. Corp., 268 N.L.R.B. 557, 560-61 (1984) (refusing to entertain an unfair labor practice charge alleging discrimination against section 7 activity unless and until the union takes the complaint through the grievance process); Collyer Insulated Wire, 192 N.L.R.B. 837, 839, 843 (1971) (dismissing an unfair labor practice charge alleging a breach of duty to bargain when the same conduct could be arbitrated, but retaining jurisdiction to hear future motions based on the outcome of the grievance process); Spielberg Mfg. Co., 112 N.L.R.B. 1080, 1082 (1955) (dismissing an unfair labor practice charge when it covered the same facts as a previous arbitration). The extent to which the NLRB will defer to the grievance process was an issue on which the Board changed rules with changes of the party holding the majority of the seats on the Board. See Gen. Am. Transp. Corp., 228 N.L.R.B. 808, 808 (1977) (undermining Collyer, and itself later undermined by United Technologies). Republican Boards dismissed unfair labor practice charges in more cases than Democratic Boards did. As shown by the two 1984 decisions cited above, the rules have remained relatively constant since the Reagan Board.
153. Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 237-38 (1970) (holding that a district court can enjoin a strike in violation of a no-strike clause in a collective bargaining agreement with a mandatory arbitration clause).
154. 29 U.S.C. § 187 (2006).
155. Vaca v. Sipes, 386 U.S. 171, 188 (1967); Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 207 (1944).
156. Perkins's stated reason for wanting to keep the NLRB out of the business of research was that she did not want it duplicating or interfering with the Department of Labor's already existing research apparatus. She opposed NLRB mediation and conciliation for the same reason. Indeed, Congress made clear that the NLRB could not engage in mediation and conciliation in the same amendment that closed down the Board's economic research division.
157. For an extensive discussion of a labor campaign involving immigrants, see generally Christopher L. Erickson et al., Justice for Janitors in Los Angeles and Beyond: A New Form of Unionism in the Twenty-First Century?, in The Changing Role of Unions: New Forms of Representation 22 (Phanindra V. Wunnava ed., 2004); Christopher L. Erickson et al., Justice for Janitors in Los Angeles: Lessons from Three Rounds of Negotiations, 40 BRIT. J. INDUS. REL. 543 (2002)
158. Catherine L. Fisk et al., Union Representation of Immigrant Janitors in Southern California: Economic and Legal Challenges, in Organizing Immigrants: The Challenge for Unions in Contemporary California 199 (Ruth Milkman ed., 2000).
159. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984).
160. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
161. Hoffman Plastic Compounds, Inc., 326 N.L.R.B. 1060, 1060 (1998).
162. Brief for the National Labor Relations Board at 14-15, Hoffman Plastic Compounds, Inc., 535 U.S. 137 (2002) (No. 00-1595).
163. Hoffman Plastic Compounds, 535 U.S. at 151-52.
164. Catherine L. Fisk & Michael J. Wishnie, The Story of Hoffman Plastic Compounds, Inc. v. NLRB: Labor Rights Without Remedies for Undocumented Immigrants, in Labor Law Stories, supra note 14, at 399, 426.
165. Hoffman Plastic Compounds, 535 U.S. at 149.
166. Admittedly, we have not exhausted all of the problems of the Board's making that increase its isolation. For discussion of the Board's nonacquiescence to circuit courts, see Brudney, supra note 11, at 237-40.
167. See Brudney, supra note 11, at 246; Flynn, supra note 23, at 1365. This characterization includes both lawyers in private practice and labor arbitrators/mediators (the background of both of the Members on the two-member Board-which is perhaps a reason that they are succeeding in getting so much done). For the backgrounds of Peter C. Schaumber and Wilma B. Liebman, see National Labor Relations Board, http://www.nlrb.gov/about_us/overview/board/(last visited Apr. 1, 2009). The exception is appointments drawn from the portion of the management-side bar that specializes in short-term client relationships and union-avoidance techniques. Brudney, supra note 11, at 248.
168. See Flynn, supra note 23, at 1419-38 (describing the nominations to the NLRB)
169. For a basic summary of the relationship between the two federations, see After Bitter Split, Unions Try to Heal Deep Wounds, ABC NEWS, Feb. 28, 2009, http://i.abcnews.com/Business/Economy/wireStory?id=6979425.
170. As Professor Joan Flynn rightly points out, labor law expertise does little good-at least when it comes to appointing a Board chairman-if it is not joined with a modicum of political judgment. See Joan Flynn, "Expertness for What?": The Gould Years at the NLRB and the Irrepressible Myth of the "Independent" Agency, 52 ADMIN. L. REV. 465, 470 (2000).
171. Section 6 of the Clayton Act, once described by a labor leader as labor's Magna Carta, says that "the labor of a human being is not a commodity or article of commerce." Clayton Act, ch. 323, § 6, 38 Stat. 730, 731 (1914) (current version at 15 U.S.C. § 17 (2006)).
172. Guard Publ'g Co., 351 N.L.R.B. 1110, 1110 (2007).
173. Lechmere, Inc. v. NLRB, 502 U.S. 527, 530 (1992).
174. Chamber of Commerce v. Brown, 128 S. Ct. 2408 (2008).
175. Id. at 2413.
176. Professor Brudney suggests that the lack of a regulatory framework for the NLRB stems from the fact that the agency does not see itself as having a mandate to protect "the public interest," but instead "the NLRB's role appears more akin to that of a traffic cop, monitoring interactions between two identified constituencies." Brudney, supra note 11, at 257. At the very least, the Board has three constituencies: unions, management, and employees, some of whom wish to be organized and others of whom do not. One might also argue that the Board is accountable to the "public interest" more generally: to the interest of the public in labor peace, in the steady flow of goods, in being able to obtain goods produced under publicly acceptable labor standards, in supporting labor standards above the minimum wage, etc. Nothing the Board does or says suggests that it views the public interest as a proper object of concern in this sense.
177. See Midland Nat'l Life Ins. Co., 263 N.L.R.B. 127, 130 (1982) (explaining the historical changes to the rule).
178. See Flynn, supra note 158, at 502-03 (explaining the NLRB meddling in "appropriations tug-of-war" as an example).
179. For a general effort to operationalize the administrative law goals of consistency and rationality, see, for example, Colin S. Diver, Policymaking Paradigms in Administrative Law, 95 Harv. L. Rev. 393, 396 (1981)
180. Yoav Dotan, Making Consistency Consistent, 57 Admin. L. Rev. 995, 997 (2005). We realize that we are only scratching the surface of the subtlety with which these issues have been addressed in scholarship that is more general and theoretical than our own.
181. We chose this qualitative method of analysis of a sample of cases in part because largescale quantitative or qualitative analyses of the success or impact of the Board during 2001-2008 are not feasible. There are too many decisions to conduct a systematic qualitative analysis of the fate of the Bush II Board decisions on judicial review. A quantitative analysis cannot rely on the Board's own Annual Report data on its success rate in the courts of appeals because the NLRB defines "win" as including a win in whole or in part. A partial win could involve a judicial decision finding the Board to have erred on a significant issue. The NLRB Annual Reports indicate that the win rate did not change in any perceptible pattern between 2002 (which, given the time it takes to dispose of a case on appeal, would encompass mainly, if not entirely, Clinton Board decisions) and 2006 (which would encompass mainly Bush II Board decisions). We analyzed a subset of fifty significant decisions from the Bush II Board period (2001 to 2007) that overruled precedent. Of those, only eleven had subsequent appellate history. The following synopses show no clear trend in the decisions: Three decisions upheld the Board's rule entirely. Five Star Transp. Inc. v. NLRB, 522 F.3d 46, 53 (1st Cir. 2008), aff'g Five Star Transp. Inc., 349 N.R.L.B. 42 (2007) (deferring to the Board's application of its rule); Local Joint Exec. Bd. v. NLRB, 515 F.3d 942, 947 (9th Cir. 2008), aff'g sub nom. Aladdin Gaming, 345 N.L.R.B. 585 (2005) (upholding the Board's new test for determining when supervisor interjections into employee conversations are coercive and the Board's application of the test to facts); Minn. Licensed Practical Nurses Ass'n v. NLRB, 406 F.3d 1020, 1024-27 (8th Cir. 2005), aff'g sub nom. Alexandria Clinic, 339 N.L.R.B. 1262 (2003) (upholding the Board's new rule requiring advance notice if a strike will commence later than the time originally specified, as well as advance notice if a strike will commence earlier and also the Board's decision to apply the new notice rule retroactively to a pending case). Two cases were remanded for the Board to explain and justify its new rule. In one case, the Board found that the employer unlawfully installed surveillance cameras but denied reinstatement and backpay to employees because the cameras revealed that they had engaged in conduct justifying their discharge. Anheuser-Busch, Inc., 342 N.L.R.B. 560, 561 (2004). The court remanded to the Board to distinguish prior Board precedent which had held that, when an employer would not have discovered the employee's behavior without its own illegal conduct, the Board would order reinstatement. Brewers & Maltsters Local 6 v. NLRB, 414 F.3d 36, 48 (D.C. Cir. 2005), rev'g and remanding sub nom. Anheuser-Busch, Inc., 342 N.L.R.B. 560 (2004). Upon remand, the Board overruled the prior precedent. Anheuser-Busch, Inc., 351 N.L.R.B. 644, 650 (2007). In the other case, the court upheld enforcement of the Board's order on the basis of substantial evidence for its factual findings, but remanded the case because the Board's order was overbroad. NLRB v. Curwood Inc., 397 F.3d 548, 558 (7th Cir. 2005), enf'g in part, vacating in part Curwood Inc., 339 NLRB 1137 (2003). The court made clear that, on remand, the Board could still find that the challenged employer speech was unlawful. Id. Two cases rejected the Board's application of its rule because it was not supported by substantial evidence and because it was a misapplication of the Board's precedent or an improper interpretation of the statute. UAW v. NLRB, 520 F.3d 192, 197 (2d Cir. 2008), rev'g and remanding sub nom. Stanadyne Auto. Corp., 345 N.R.L.B. 85 (2005) (upholding the Board's application of the rules regulating employer speech on two issues but reversing on a third issue); Jochims v. NLRB, 480 F.3d 1161, 1174 (D.C. Cir. 2007), rev'g sub nom. Wilshire at Lakewood, 345 N.L.R.B. 1050 (2005) (holding that the Board's decision to treat an employee as a supervisor was not based on substantial evidence, but rather on a misapplication of Board precedent). Some cases apparently settled while the appeal was pending or have not been decided.
182. For a brief but insightful summary of the card-check process, see Julius G. Getman et al., Union Representation Elections: Law And Reality 131 (1976).
183. A recent empirical study that also contains a literature review of past studies is Adrienne E. Eaton & Jill Kriesky, NLRB Elections vs. Card Check Campaigns: Results of a Worker Survey, 62 INDUS. & LAB. REL. REV. 157, 159-61 (2009).
184. Getman et al., supra note 169, at 14.
185. Kate Bronfenbrenner & Tom Juravuich, It Takes More Than House Calls: Organizing to Win with a Comprehensive Union-Building Strategy, in Organizing to Win: New Research On Union Strategies 19, 28 (Kate Bronfenbrenner et al. eds., 1998)
186. Morris M. Kleiner, Intensity of Management Resistance: Understanding the Decline of Unionization in the Private Sector, 22 J. LAB. RES. 519, 527 (2001)
187. cf. John J. Lawler & Robin West, The Impact of Union-Avoidance Strategy in Representation Elections, 24 INDUS. REL. 406, 409 (1985) (discussing, amidst other employer resistance efforts, the notion of "discrimination against union supporters").
188. See Weiler, supra note 69, at 1781 (estimating the odds that a union supporter will be fired for exercising section 7 rights at 1 in 20).
189. H.R. 800, 110th Cong. (2008).
190. See, e.g., American Rights at Work Resource Library, http://www.americanrightsatwork.org/employee-free-choice-act/resource-library/ (last visited Apr. 7, 2009) (providing fact sheets and other resources regarding the Employee Free Choice Act).
191. See, e.g., Thomas J. Donohue, President & CEO, U.S. Chamber of Commerce, Employee Free Choice Act Crushes Workers' Right to Cast Secret Votes (Aug. 31, 2008), http://www.uschamber.com/press/opeds/080831_cardcheck.htm.
192. Keller Plastics E., Inc., 157 N.L.R.B. 583, 586 (1966).
193. See generally Robert A. Gorman & Matthew W. Finkin, Basic Text on Labor Law: Unionization and Collective Bargaining 53-83 (2d ed. West 2004) (explaining the procedures for representation cases).
194. Dana Corp., 351 N.L.R.B. 434, 434-35 (2007).
195. Id. at 443.
196. Id. at 444 (Liebman & Walsh, Members, dissenting) (citing stable bargaining relationships and employee free choice as the most important interests).
197. See, e.g., Richard B. Freeman & Joel Rogers, What Workers Want 69, 83, 97 (1999) (graphing surveys of employee attitudes about work and finding that 63 percent of workers wanted more influence than they had at work, 56 percent would prefer to raise problems through an association rather than alone, and 32 percent of unrepresented workers and 90 percent of union members would vote for union representation if given the chance).
198. In 1994, the influential Dunlop Commission (the Commission on the Future of Worker-Management Relations) found that the failure of a newly certified union to secure a first contract was a serious problem when approximately one-third of new unions failed to secure a contract within two years of bargaining. In the 2000-2004 period, 44 percent of new unions failed to secure a first contract. Archibald Cox et al., Labor Law: Cases and Materials 529 (14th ed. 2006); see John-Paul Ferguson, The Eyes of the Needles: A Sequential Model of Union Organizing Drives, 1999-2004, 62 Indus. & Lab. Rel. Rev. 3, 16 (2008).
199. One empirical study of the extent of employer, union, and coworker pressure in elections and in card-check campaigns asserts that there is a "gaping hole" in the empirical literature attempting to compare the degree of pressure in the two organizing scenarios. See Eaton & Kriesky, supra note 170, at 160.
200. See National Labor Relations Board Frequently Requested Documents, http://www.nlrb.gov/research/frequently_requested_documents.aspx (last visited Apr. 7, 2009) (providing seven briefs of the parties and ten amicus briefs).
201. Dana, 351 N.L.R.B. at 442 n.34 (majority opinion) (citing Brudney, supra note 27); id. at 445 & n.4 (Liebman & Walsh, Members, dissenting) (citing Brudney, supra note 27).
202. Levitz Furniture Co., 333 N.L.R.B. 717 (2001).
203. Id. at 717 (overruling Celanese Corp., 95 N.L.R.B. 664 (1951)).
204. Id. at 727.
205. Id. at 720-23.
206. Dana, 351 N.L.R.B. at 441 (quoting Excelsior Underwear, Inc., 156 N.L.R.B. 1236, 1240 (1966)).
207. Levitz Furniture, 333 N.L.R.B. at 726.
208. Id. at 726-28.
209. See Allentown Mack Sales and Serv., Inc. v. NLRB, 522 U.S. 359, 376-77 (1998).
210. Dana, 351 N.L.R.B. at 434 n.2.
211. Levitz Furniture, 333 N.L.R.B. at 729.
212. Dana, 351 N.L.R.B. at 438.
213. Levitz Furniture, 333 N.L.R.B. at 723.
214. Dana, 351 N.L.R.B. at 438 n.17.
215. See Leedom v. Kyne, 358 U.S. 184, 188 (1958) (explaining that such decisions are not for "review," but rather to "strike down an order. .. made in excess of [the Board's] delegated powers").
216. Guard Publ'g Co., 351 N.L.R.B. 1110, 1110 (2007).
217. Media Gen. Operations, Inc., 346 N.L.R.B. 74, 76 (2005); E.I. du Pont de Nemours & Co., 311 N.L.R.B. 893, 919 (1993).
218. Guard, 351 N.L.R.B. at 1116.
219. The Board reasoned as follows: (1) The employer has a property right in its email system which allows it to regulate employee use of the system. (2) Prior cases have held that the employer can restrict employees from nonbusiness use of equipment such as telephones, bulletin boards, or public announcement systems without running afoul of section 8(a)(1), which prohibits enforcement even of neutral rules that interfere with the exercise of section 7 rights absent sufficient business justification. (3) Prior cases have held that the employer cannot prevent employees from communicating with each other in the workplace about union-related matters, though the employer may prohibit nonwork-related communications during working time and may prohibit the distribution of literature at any time in working areas because of the need to control litter. (4) Email is more akin to a telephone, a bulletin board, or a public announcement system than it is to oral solicitation or distribution of literature. (5) The cases having to do with section 7 protections for oral solicitation or literature distribution, which require a balancing between the employees' section 7 rights to communicate and the employer's rights to control the workplace, are inapposite because email communication is not like oral communication, and the section 7 right to communicate "does not require the most convenient or most effective means of conducting those communications, nor does it hold that employees have a statutory right to use an employer's equipment or devices for Section 7 communications." Id. at 1115.
220. Id. at 1116.
221. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797, 803 n.10 (1945).
222. The employee at issue in Register-Guard had not used the employer's computer to send certain emails; she had done so from a computer off of the premises. Guard, 351 N.L.R.B. at 1112. Nevertheless, the Board found that the employer's ownership of the email server trumped the employees' rights to communicate, even though the Board conceded that it was unlikely that union messages caused any measurable burden on the server or otherwise harmed the employer's property interest in its server in any way. Id. at 1116 n.11.
223. See, e.g., Gorman & Finkin, supra note 178, at 151 (stating that 8(a)(1) prohibits an employer from taking "action which, regardless of the absence of antiunion bias, tends to interfere with, restrain, or coerce a reasonable employee in the exercise of the rights guaranteed in section 7, provided the action lacks a legitimate and substantial justification such as plant safety, efficiency or discipline").
224. For example, in Republic Aviation, the Supreme Court held unlawful a company rule which forbade solicitation of any kind on company property and rejected the defense that the no-solicitation rule had been adopted before the advent of the union, was not motivated by antiunion bias, and had been applied nondiscriminatorily against all forms of in-plant solicitation. 324 U.S. at 805; see also GORMAN & FINKIN, supra note 178, at 151-53 (describing NLRB and Supreme Court decisions establishing that proof of discriminatory motive is generally not required in section 8(a)(1) cases).
225. The Board adopted a view articulated by the Seventh Circuit in a couple of cases declining enforcement of Board orders that only rules treating section 7 conduct differently from all other similar conduct violate section 8(a)(1). Guard, 324 U.S. at 1117-18. The two Seventh Circuit decisions were ones that the Board previously had refused to acquiesce in. Guardian Indus., Corp., 49 F.3d 317 (7th Cir. 1995), denying enforcement, 313 N.L.R.B. 1275 (1994); Fleming Co. v. NLRB, 349 F.3d 968 (7th Cir. 2003), denying enforcement, 336 N.L.R.B. 192 (2001). The other authority the Board cited for this proposition, aside from two decisions from the Bush II Board, neither of which was on point, was a 1958 Supreme Court decision, NLRB v. Steelworkers (Nutone & Avondale), 357 U.S. 357 (1958), which allowed an employer that prohibits solicitation during working time to violate its own no-solicitation policies by using work time to give anti-union speeches to employees. In Enloe Med. Ctr., 348 N.L.R.B. 991 (2006) and Salmon Run Shopping Center, 348 N.L.R.B. 658 (2006), the Board held that discriminatory enforcement of a no-solicitation rule violated section 8(a)(1). Enloe Med. Ctr., 348 N.L.R.B. at 991; Salmon Run, 348 N.L.R.B. at 658. Neither held that discrimination was necessary to prove the section 8(a)(1) violation, only that enforcement of a facially valid rule in a discriminatory manner violates section 8(a)(1). Enloe, 348 N.L.R.B. at 991; Salmon Run, 348 N.L.R.B. at 659-60. The Board in Salmon Run recognized that discrimination in the enforcement of a facially valid rule is an exception to the general mode of analysis, which is the Republic Aviation rule that compares the burdens on the employer's operations against the benefits of section 7 activity and does not turn on proof of discrimination. Salmon Run, 348 N.L.R.B. at 658.
226. Guard, 351 N.L.R.B. at 1116 n.11.
227. Brief for the United States Chamber of Commerce as Amicus Curiae Supporting Respondent at 3, Guard Publ'g Co. v. Eugene Newspaper Guild, 351 N.L.R.B. 1110 (2007), available at http://www.nlrb.gov/nlrb/shared_files/Briefs/Chamber%20of%20Commerce.pdf.
228. Guard, 351 N.L.R.B. at 1114 (citation and internal quotation marks omitted).
229. St. Clare's Hosp. & Health Ctr., 229 N.L.R.B. 1000, 1003-04 (1977) (holding that house staff are employees but are not eligible to bargain); Cedar's Sinai Med. Ctr., 223 N.L.R.B. 251, 251 (1976) (holding that house staff are not employees under the NLRA); Leland Stanford Junior Univ., 214 N.L.R.B. 621, 621 (1974) (holding that graduate student teaching assistants are not employees); Cornell Univ., 183 N.L.R.B. 329, 331 (1971) (asserting jurisdiction over private, nonprofit universities).
230. Boston Med. Ctr. Corp., 330 N.L.R.B. 152 (1999).
231. Id. at 152.
232. N.Y. Univ., 332 N.L.R.B. 1205 (2000).
233. Id. at 1205.
234. Brown Univ., 342 N.L.R.B. 483 (2004).
235. Id. at 483.
236. Boston Med. Ctr., 330 N.L.R.B. at 153-56.
237. Id. at 156.
238. Id. at 163.
239. Id. at 159.
240. Id. at 159-61.
241. Labor Management Relations Act, ch. 120, § 2, 61 Stat. 136, 139 (1947) (current version at 29 U.S.C. § 152(12) (2006)).
242. Boston Med. Ctr., 330 N.L.R.B. at 163.
243. Leedom v. Kyne, 358 U.S. 184 (1958).
244. See id. at 188 ("This suit is not one to 'review' in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction.").
245. Boston Med. Ctr., 330 N.L.R.B. at 163.
246. Id. at 164-65.
247. N.Y. Univ., 332 N.L.R.B. 1205, 1206-09 (2000).
248. Id. at 1206.
249. Id. at 1206-07.
250. Id. at 1208.
251. Brown Univ., 342 N.L.R.B. 483, 483 (2004).
252. Leland Stanford Junior Univ., 214 N.L.R.B. 621 (1974).
253. See, e.g., Brown, 342 N.L.R.B. at 483 ("This longstanding approach towards graduate student assistants changed abruptly with NYU."); id. at 491 ("Our colleagues' assertions, therefore, turn a blind eye to the Board's longstanding policy.").
254. See id. at 488-500.
255. Id. at 488.
256. The Board reasoned that the relationship between graduate students and a university "is primarily educational," that teaching and research experience "is integral to the education of the graduate student," and that the compensation paid for the work "is the financial support provided to graduate student assistants because they are students." Id. at 488-89.
257. Id. at 492.
258. Id. at 493.
259. See discussion supra notes 245-50 and accompanying text.
260. The National Labor Relations Board: Recent Decisions and Their Impact on Workers' Rights, supra note 90, at 26 (statement of Wilma B. Liebman, Member, NLRB) ("Virtually every recent policy choice by the board impedes collective bargaining, creates obstacles to union representation, or favors employer interests.").
261. 5 U.S.C. app. §§ 1-15 (2006). A new advisory committee can be established by an agency head if it is "determined as a matter of formal record, by the head of the agency involved after consultation with the Director [of the Office of Management and Budget], with timely notice published in the Federal Register, to be in the public interest in connection with the performance of duties imposed on that agency by law." Id. § 9(2). Advisory committees can also be "specifically authorized by statute or by the President." Id. § 9(1). The FACA applies to an "agency" within the meaning of the Administrative Procedure Act section 551(1), which includes independent agencies. Id. § 3(3).
262. See, e.g., Claire Tuck, Policy Formulation at the NLRB: A Viable Alternative to Notice and Comment Rulemaking, 27 CARDOZO L. REV. 1117, 1120-21 (2005) ("[T]he Board should provide some guidance to parties beyond individual adjudications by issuing nonbinding statements of policy."); M. Elizabeth Magill, Agency Choice of Policymaking Form, ADMIN. & REG. L. NEWS, Fall 2004, at 15, 32 ("Some agencies rely heavily on adjudication, others on legislative rules, and others on a rich mix of tools. These varying practices invite questions about how agencies choose among their available options.").
263. On the thorny question of the relationship between the Solicitor General and independent agencies, see generally Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 Cal. L. Rev. 255 (1994).
264. A review of the GAO's website showed very few congressional requests for information relevant to substantive NLRA issues. The GAO did provide a study of the NLRB's July 8, 1997, Draft Strategic Plan, submitted by the Board pursuant to the Government Performance Results Act of 1993 (The Results Act). U.S. GEN. Accounting Office, Nat'l Labor Relations Bd., Observations on The Nlrb's JULY 8, 1997, DRAFT STRATEGIC PLAN (1997), available at http://www.gao.gov/archive/1997/he97183t.pdf. The study was presented to the House of Representatives on July 24, 1997. Oversight of National Labor Relations Board: Hearing Before the H. Subcomm. on Human Resources of the H. Comm. on Government Reform and Oversight, 105th Cong. 148-59 (1997) (statement of Carlotta C. Joyner, Director, Education and Employment Issues, U.S. General Accounting Office). By its terms, the section of The Results Act requiring agencies to formulate strategic plans applies only to executive agencies as defined in 5 U.S.C. § 105. See 5 U.S.C. § 306(f) (2006). Independent agencies like the NLRB are not executive agencies under this definition, but the NLRB has participated in the process nonetheless. For further discussion, see The Results Act section of the GAO website. U.S. GAO, Results-Oriented Decision Making, http://www.gao.gov/transition_2009/challenges/results_decision_making/home_results_decision_making.php(last visited Apr. 10, 2009).
265. According to the Congressional Research Service website, the Service "provides, exclusively to the United States Congress, objective, nonpartisan assessments of legislative options for addressing the public policy problems facing the nation," and has a large, multidisciplinary staff with subject matter expertise on a wide range of policy fields, including labor. About the Congressional Research Service, http://www.loc.gov/crsinfo/aboutcrs.html (last visited Mar. 30, 2009).
266. See, e.g., NLRB v. Beverly Enters.-Mass., Inc., 174 F.3d 13, 21-36 (1st Cir. 1999) (going through a full recitation of standards of review for law, fact, and policy, and then proceeding not to use any of them).
267. See, e.g., Recon Refractory & Constr. Inc. v. NLRB, 424 F.3d 980, 987-88 (9th Cir. 2005).
268. See, e.g., Pearson Educ., Inc. v. NLRB, 373 F.3d 127, 131 (D.C. Cir. 2004); Nathan Katz Realty, LLC v. NLRB, 251 F.3d 981, 994 (D.C. Cir. 2001); see also Long Island Head Start Child Dev. Serv. v. NLRB, 460 F.3d 254, 257-58 (2d Cir. 2006) ("Our 'hard look' will also examine whether an agency decision accurately reflects its own caselaw. ... [U]nder State Farm, an agency explanation will not be afforded deference unless the agency has considered all relevant issues and factors."); cf. Local 814, Int'l Bhd. of Teamsters v. NLRB, 512 F.2d 564, 572 (D.C. Cir. 1975) (Bazelon, J., dissenting) (objecting to a "remand for supplementation" and calling for reversal and remand "for a thorough reconsideration of the doctrinal quicksand in this area" in question).
269. In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), a case involving "informal adjudication," the Court, dissatisfied with the state of the record underlying an "informal adjudication," effectively required the agency to produce a formal record or make officials available for live testimony-all the while acknowledging that the APA does not require formal findings in such a case. Id. at 419-20.
270. See Brudney, supra note 11, at 247 (referring to data showing that judges with labor experience, even management experience, uphold the Board more often than others do)
271. With respect to (2), see, for example, NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571 (1994), reversing the Board on an important question of statutory interpretation, the scope of the term "supervisor," without citing Chevron. Id. at 576-84. The Supreme Court often cites a pre-Chevron case, Fall River Dying & Finishing Corp. v. NLRB, 482 U.S. 27 (1987), rather than contemporary sources on the appropriate scope of review of NLRB decisions. E.g., Health Care, 511 U.S. at 576.
272. Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67 (1998).
273. See, e.g., Joan Flynn, The Costs and Benefits of "Hiding the Ball": NLRB Policymaking and the Failure of Judicial Review, 75 B.U. L. Rev. 387 (1995)
274. Michael J. Hayes, After "Hiding the Ball" is Over: How the NLRB Must Change its Approach to Decision-Making, 33 Rutgers L.J. 523 (2002).
275. Allentown Mack, 522 U.S. at 364-66 (citations omitted).
276. We are aware that it is not only in the case of the NLRB that reviewing courts are unclear about the level of deference they are actually applying (notwithstanding the terminology they use and the precedents they cite). See Matthew C. Stephenson, Mixed Signals: Reconsidering the Political Economy of Judicial Deference to Administrative Agencies, 56 Admin. L. Rev. 657, 709 (2004) ("The Supreme Court's deference doctrine may instead be determined by other factors, it may reflect normative or doctrinal commitments independent of short-term policy results, or it may be as confused and inconsistent as some observers have charged."). But the age of so many significant NLRB precedents compounds the problem in the labor law setting. See Estlund, supra note 11, at 1527 ("[T]he National Labor Relations Board. .. is increasingly hemmed in by the age of the text and the cumulative impact of stare decisis.").
277. See United States v. Mead Corp., 533 U.S. 218, 229 (2001).