Thursday, March 1, 2018

How Does the NLRB Read Its Statute?

How does the NLRB typically do statutory interpretation? For her paper An Empirical Examination of Statutory Interpretation, forthcoming in the Minnesota Law Review, Amy Semet looked closely at the less than 2 percent of NLRB opinions issued from 1993 to 2016 in which the Board majority didn't just refer to prior case decisions, but itself explicitly engaged in some kind of statutory interpretation of the National Labor Relations Act.

Among other things, for the 121 cases in which NLRB majority opinions interpreted the NLRA “as a matter of first impression,” Semet reports the kinds of statutory-interpretation arguments that appeared (p. 31, tbl. 1):

Statutory-Interpretation Method by Case Type (Percent)
Case Type Text-Partial Text-Primary Language Canons Leg. History
All 63 8 20 39
Vs Employer 60 8 20 31
Vs Unions 71 10 19 57
Election/Bargaining Unit 62 8 22 43

And here, from the paper abstract, on what Semet ultimately found:

Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history.

In short, Semet concludes that “despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do.”

Sachin Pandya

Labor Law, Scholarship | Permalink


This adds to the reasons for questioning Chevron deference, as some courts are beginning to do.

Posted by: Dennis Nolan | Mar 2, 2018 6:53:13 AM

Yet another reason to question Chevron deference.

Posted by: Dennis Nolan | Mar 2, 2018 9:31:53 AM

One of the persistent problems of the NLRB is the use of an adjudicative process to issue policy decisions. They look like like a Court, but are charged with setting labor policy. To compare this process to a judicial one is to confuse the policy making process of the Board with the adjudicative process of courts.

As to the issue of deference, Congress told the Courts to do so under the substantial evidence standard at 29 U.S.C. 160(e).

Posted by: Fanning | Mar 10, 2018 7:37:27 PM

Belatedly, I should note that 160(e) deals only with findings of fact: "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." Chevron deference is something else entirely: it's a judicially-invented doctrine about an agency's own interpretation of its statute --- that is, a legal question rather than a finding of fact.

Posted by: Dennis Nolan | Apr 3, 2018 10:09:12 AM

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