Fred B. Jacob & Anne Marie Lofaso
Volume 77, Issue 1, 38-84
“[The agency’s actions] express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions—impressions which may lie beneath consciousness without losing their worth. The board was created for the purpose of using its judgment and its knowledge.”
– Justice Oliver Wendell Holmes, 1907
Trust matters. In the 1935 National Labor Relations Act, Congress entrusted the heavy responsibility of protecting labor peace to a board of experts and an administrative agency, both steeped with experience in resolving labor disputes and fluent in the science of industrial relations. This was no accident. For decades prior, federal courts obstructed labor activity, using their injunctive power to enjoin strikes and make peaceful protest contumacious. To prevent this obstruction from occurring under the new federal labor law, Congress gave the National Labor Relations Board broad power to implement the Act through adjudication and limited the courts’ role to equitable supervision.
The Act deliberately employed general statutory language to empower the Board with discretion to resolve questions of union representation, police unfair labor practices, and develop remedies for unlawful actions. At Congress’s direction, the Board builds national labor policy in common‑law court style, one case at a time. It relies on evolutionary factfinding, accumulated expertise, and the identification of commonalities across thousands of labor disputes. Its work is only marginally statutory interpretation in the traditional sense of divining meaning from ambiguous text; rather, it implicates statutory construction, bringing life to long-settled congressional delegations. We call the Board’s statutory charge “iterative construction.” Over the next ninety years, the courts respected this delegation and deferred to the Board’s reasonable constructions of the Act.
In 1984, the United States Supreme Court issued its decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, which required courts to defer to administrative agencies’ reasonable interpretations of ambiguous statutory language. Courts applied this doctrine to NLRB decisions but primarily held to pre-Chevron NLRA-specific precedent.
Flash forward to 2024: The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo reasserted judicial supremacy over matters of statutory interpretation under the Administrative Procedure Act, overturning the venerable Chevron doctrine. We contend that the Board’s iterative construction of the NLRA—as a reflection of congressional intent and delegation—falls outside of Loper Bright’s domain. The Court recognized in Loper Bright that Congress may delegate agencies the power to fill up the details of a statutory scheme. When it does, the agency’s policymaking falls outside of the APA’s de novo review. Loper Bright does not transfer the power to develop national labor policy under the NLRA to the courts. Instead, it stays where Congress wanted it, and where the courts have long recognized it belongs—with experts in labor relations who understand the importance to a healthy nation of protecting worker rights and preventing labor strife.