This Note takes a different approach to interpreting section 2(3). Although this Note agrees that section 2(3) neither clearly includes nor clearly excludes trojan horse organizers, it also argues that the definition of employee under section 2(3) must be determined by looking to common law principles of agency. In other words, the question whether courts should defer to the Board's interpretation of section 2(3) does not turn on statutory ambiguity. Rather, courts have a continuing duty to ensure that the Board interprets employee consistently with common law agency principles. Nevertheless, the correct interpretation of employee under agency principles ultimately turns on an empirical judgment about whether trojan horse organizers generally work as hard as other employees. This judgment is uniquely suited to the NLRB, whose experience and expertise with the complexities of industrial relations the Court has consistently recognized. This Note therefore concludes that courts should defer to Board orders protecting trojan horse organizers, not on the basis of statutory ambiguity, but because the Board is best equipped to make the judgments necessary to reach the proper legal conclusion under the principles of agency.
Jonathan D. Hacker,
Are Trojan Horse Union Organizers "Employees"?: A New Look at Deference to the NLRB's Iterpretation of NLRA Section 2(3),
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol93/iss4/4