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

• Publication year: 2015

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

Theodore J. St. Antoine

THE NLRB, THE COURTS, THE ADMINISTRATIVE PROCEDURE ACT, AND CHEVRON: NOW AND THEN

Theodore J. St. Antoine^*

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.

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INTRODUCTION ............................................................................................ 1531

I. PRE-APA ERA .................................................................................. 1531
II. FROM THE ADMINISTRATIVE PROCEDURE ACT TO CHEVRON ........... 1534
III. THE CONTEMPORARY PERIOD .......................................................... 1537
IV. ASSESSMENT AND CRITIQUE ............................................................ 1540
V. SOME MAJOR NLRB DECISIONS IN THE COURTS ............................. 1542

A. Preliminary Note ..................................................................... 1542
B. "Employee" ............................................................................. 1543
C. Union Access to Employees ..................................................... 1545
D. Consumer Picketing ................................................................. 1547
E. Posting of Notices .................................................................... 1550

CONCLUSION ................................................................................................ 1551

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INTRODUCTION

The federal judiciary was reviewing the government's administrative actions as early as Marbury v. Madison.¹ Although the political storm following that pivotal constitutional decision eventually subsided,² the debate continues to this day on the standards the courts should employ in reviewing administrative rules and rulings. After a brief historical overview, I shall focus on some current major issues concerning judicial review and deference to agency decisions, with principal attention on the National Labor Relations Board (NLRB or Board).

I. PRE-APA ERA

During the nineteenth century, such common law writs as mandamus, prohibition, and ejectment or tort suits were used to review administrative actions.³ This generally led the courts to resolve matters of both fact and law, in effect providing de novo review.⁴ But the primary issue was usually jurisdictional: that is, had the Constitution authorized or Congress properly delegated the power that an administrator was exercising.⁵ If not, the action was illegal and subject to remedy. Otherwise, in what Professor Thomas Merrill terms an "all-or-nothing" approach, the courts tended to back off from intervening in areas held to be within an agency's legitimate domain.⁶ Yet when the courts did act, they might act so thoroughly on both law and fact,

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with so little, if any, deference to the agency ruling, that the first Justice Harlan lamented, "[t]aken in connection with other decisions defining the powers of the Interstate Commerce Commission, the present decision . . . goes far to make that commission a useless body, for all practical purposes."⁷

All that began to change around the turn of the twentieth century. In a series of decisions, first involving the Interstate Commerce Commission (ICC) and then the Federal Trade Commission (FTC), the Supreme Court moved away from de novo review to what has been called an "appellate review model."⁸ A leading scholar of the time, John Dickinson, likened this modified form of review to the relationship of judge and jury in civil proceedings, although he was too sophisticated to make this turn entirely on a simple law-fact distinction: "[A]ny factual state or relation which the courts conclude to regard as sufficiently important to be made decisive for all subsequent cases of similar character becomes thereby a matter of law for formulation by the court."

The separate roles of courts and agencies in interpreting the law and mixed questions of law and fact were a key issue in Skidmore v. Swift & Co.¹⁰ Certain employees were paid a salary for a normal forty-hour work week but agreed to stay over several nights a week.¹¹ Their only duties were to answer infrequent fire alarms for which they received a set amount for each alarm.¹² The employees sued the company for overtime pay under the Fair Labor standards Act (FLSA).¹³ The district court decided as a "conclusion of law" that time spent awaiting alarm calls "does not constitute hours worked."¹⁴ The court of appeals affirmed. In the Supreme Court, the Administrator of the Labor

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Department's Wage and Hour Division submitted an amicus brief urging reversal on the grounds that all "on-call time," except time spent sleeping or eating, should be counted as working time.¹⁵ The Court reversed and remanded for further proceedings, stating:

[T]he rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.¹⁶

The multifactored, flexible, ad hoc, and rather indeterminate Skidmore test is said to have "enjoyed prominence [for forty years] as perhaps the Supreme Court's best expression of its policy of judicial deference toward many if not most agency interpretations of law."¹⁷ For a time judicial review then moved in a different direction.¹⁸ In the last decade and a half, however, Skidmore has been revivified to an extent not yet fully understood.¹⁹ Yet the earlier period of

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Skidmore primacy produced several additional developments of continuing importance, though of disputed meaning. They still deserve attention.

II. FROM THE ADMINISTRATIVE PROCEDURE ACT TO CHEVRON

The New Deal era of the 1930s saw a vast expansion of the federal administrative apparatus designed to regulate and stabilize the deeply depressed American economy.²⁰ To standardize and provide for the oversight of these variegated and often controversial agencies, Congress unanimously passed the Administrative Procedure Act (APA) in 1946.²¹ The provision on the scope of judicial review states

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

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(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.²²

Courts and commentators have subsequently treated—or ignored—the reviewing criteria set forth in the APA or in court pronouncements as if there were as many as six separate judicial deference standards or as few as just one: the "reasonableness" of the agency action.²³

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