Are trojan horse union organizers 'employees?': a new look at deference to the NLRB's interpretation of NLRA section 2(3).

• Date: 01 February 1995
• Author: Hacker, Jonathan D.

INTRODUCTION

Labor unions traditionally have depended on direct and continuous contact with employees in the workplace in order to organize effectively.(1) The Supreme Court, however, has recently limited the circumstances under which the National Labor Relations Board NLRB or Board) can order companies to grant nonemployee union organizers access to their property to communicate with employees.(2) According to the Court, the right to union organization protected by section 7 of the National Labor Relations Act(3) (NLRA or Act) applies only to employees, not to nonemployee organizers.

Despite this holding, unions may be able to maintain direct and continuous contact with employees through the use of a so-caned trojan horse organizer -- a full-time, paid union organizer who applies for a job with a company with the specific and sole intent of organizing a union there.(4) This strategy has many benefits for unions: it provides the union day-to-day access to employees; it provides the union access to information about the work environment and employment practices at the company; and it allows the paid union organizer to lead and control employee organizing activities, reducing the exposure of other employees to the illegal discharges that often chill organizing drives.(5)

The effectiveness of this strategy, however, would be severely undermined if an employer could refuse to hire a trojan horse organizer simply because she works for the union, or if the employer could fire the organizer once her true intentions are uncovered. Employers seeking to keep their workforces union-free obviously do not want to hire union organizers. But if these organizers are employees as defined by section 2(3) of the NLRA, then employers cannot refuse to hire such organizers solely on the grounds that they are interested in organizing the workforce. Section 8(a)(3) of the NLRA protects employees -- a category that includes job applicants(6) -- from anti-union discrimination.(7) Under this provision, an employer may not refuse to hire an applicant solely because of the applicant's union affiliation.(8) If an individual is not an employee as defined by section 2(3), however, an employer may legitimately refuse to hire her solely for anti-union reasons.(9) Thus, if trojan horse union organizers are not considered employees under section 2(3), then employers have no legal worries about their motives in refusing to hire these applicants.

NLRA section 2(3) provides the following definition of employee:

The term "employee" shall include any employee, and shall not be

limited to the employees of a particular employer, unless this subchapter

explicitly states otherwise ... but 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.(10) For over twenty years the NLRB has held that this definition includes trojan horse union organizers.(11) Courts, however, have not uniformly accepted this position.(12) The Fourth,(13) Sixth,(14) and -- most recently -- Eighth(15) Circuits have refused to consider such organizers bona fide employees entitled to the Act's protection. In contrast, the Second,(16) Third,(17) and D.C.(18) Circuits have enforced Board orders finding that an employer who refused to hire a paid union organizer had committed an unfair labor practice.

The framework established in Chevron U.S.A. Inc. v. Natural Resources Defense Council(19) typically guides courts adjudicating disputes involving agency interpretations of statutes.(20) Chevron establishes a two-step process through which courts assess interpretations of statutes by agencies such as the NLRB.(21) The Chevron rule of deference to agencies turns on statutory ambiguity. If the statute clearly expresses Congress's intent, then courts do not defer to the agency's interpretation of the statute; they simply enforce the statute's clear meaning.(22) If the statute is not clear, however, courts then move to the second step and defer to the agency's interpretation as long as it is reasonable.(23)

Although the Chevron framework is supposed to simplify the process of interpreting statutes in the administrative state,(24) courts, Board members, and commentators have employed the framework in a variety of ways to answer the question whether section 2(3) includes trojan horse organizers. One approach suggests that courts should stop at Chevron step one and enforce Board orders protecting trojan horse organizers, on the ground that section 2(3) clearly includes trojan horse organizers.(25) Another approach suggests the opposite: courts should stop at step one but refuse to enforce the Board's protection of trojan horse organizers, on the ground that

section 2(3) clearly excludes trojan horse organizers.(26) Other approaches find that the statute is not clear but reach contrary conclusions on whether the Board's inclusion of trojan horse organizers is a reasonable interpretation of the statute.(27)

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.(28)

Part I of this Note examines the language and history of section 2(3), demonstrating that Congress intended for the Board and the courts to apply common law agency principles when interpreting this section. Part II identifies three problems for trojan horse organizers that arise under agency law. First, trojan horse organizers may be subject to the control of the union, which would mean they are not employees under traditional agency principles. But the union may only control the organizer with respect to legal organizing activities; the employer controls the organizer with respect to any legitimate on-the-job responsibilities. Second, trojan horse organizers have an interest in union organizing that directly conflicts with the employer's interest in avoiding unionization, a conflict of interest that would also negate the organizer's status as an employee under agency principles. Such a conflict, however, is not a relevant conflict under the NLRA because the statute is predicated on the view that an individual may be interested in organizing and still be loyal to an employer. A third problem that arises under agency law involves the question whether trojan horse organizers are generally good employees. This question is an empirical one, and Part III argues that the NLRB has the experience and expertise necessary to answer it. This Note concludes that courts should therefore enforce NLRB orders protecting trojan horse organizers as employees under section 2(3).

1. Interpreting Section 2(3) -- Common Law Agency Principles

   Statutory interpretation generally begins with the text of the statute.(29) As noted above, NLRA section 2(3) does not provide a precise definition of employee. Instead, the Act simply defines employee as "any employee," subject to a limited number of exemptions.(30) Under the interpretive canon expressio unius est exclusio alterius,(31) the explicit list of exemptions suggests that Congress intended to exclude all other possible exemptions. The expressio unius approach to section 2(3) would include any individual not specifically exempted by the language of the provision.(32) Because section 2(3) does not expressly exclude trojan horse organizers, this approach would dictate that such organizers must be considered employees under the statute.(33)

   There is no need to resort to this interpretive canon, however, because Congress actually specified substantive content for the meaning of employee.(34) The Taft-Hartley amendments to section 2(3) make clear that Congress intended the definition of employee to have a meaning consistent with common law agency principles.(35

   Taft-Hartley amended section 2(3) to add to the exemptions from the definition of employee "any individual having the status of an independent contractor."(36) This amendment was an express rejection of the Supreme Court's decision in NLRB v. Hearst Publications, Inc.,(37) in which the Court construed section 2(3) broadly to include individuals who have some of the characteristics of independent contractors.(38) In his summary of the conference committee agreement, Senator Taft stated: The conferees also adopted language in the House bill excluding from the definition of "employee" individuals having [the] status of independent contractors. While the Board itself has never claimed that independent contractors were employees, the Supreme Court has ... held that the ordinary tests of...