The NLRB, the Courts, the Administrative Procedures Act, and Chevron: Now and Then

Authors

Theodore J. St. Antoine, University of Michigan Law SchoolFollow

Document Type

Article

Publication Date

7-2015

Abstract

Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency's statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, but if a statute is silent or ambiguous on the precise issue, then the court will defer to an agency's determination that is a permissible construction of the statute. More recently there has been a revival of interest in the earlier, more flexible Skidmore approach. That would call for considering a variety of factors, including whether the issue was one of "pure law" or the application of law to facts and the formality or informality of the agency's decisional process. It has even been suggested that these deference tests could be reduced to a single inquiry: was the agency's decision "reasonable"? Empirical studies have indicated not only that the political backgrounds of NLRB members substantially affect its decisions but also that the political backgrounds of judges substantially affect the decisions of reviewing courts. Recent examples of hotly contested issues include registered nurses and university faculty members as "employees" entitled to organizing rights under the National Labor Relations Act; union access to employees on employer property that is generally open to the public, such as parking lots; 'pure" consumer picketing at retail stores; and the required posting of notices about organizing and bargaining rights at nonunion establishments. All these raise fundamental questions about federal neutrality in union management relations versus government encouragement of collective bargaining.

Recommended Citation

St. Antoine, Theodore J. "The NLRB, the Courts, the Administrative Procedures Act, and Chevron: Now and Then." Emory L. J. 64, Special Issue (2015): 1529-52.