SCOTUS ends the Chevron doctrine and reduces government agency powers. Might that lead to more consistent NLRB policies and decisions?
Near the end of this year’s Supreme Court term, the SCOTUS handed down three decisions that limit federal agency powers in interpreting statutes they administer.
One of those decisions, Loper Bright Enterprises v. Raimondo, abolished the so-called “Chevron doctrine,” which since 1984 had given broad powers to the NLRB to interpret the National Labor Relations Act (the Act) where the Act is ambiguous or vague.
Chevron required a reviewing court to defer to a federal agency’s decision if it could be reasonably justified under the Act. The Chevron court reasoned that agency decisions are often determined by scientific and technical interpretations that are best made by agency staffers with the requisite expertise and experience.
That made it easier for the Board to put its own spin on the Act’s provisions – making for (sometimes) wildly different interpretations of the Act from one Board to another, depending upon the Board’s political composition.
For example, Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7” of the Act.
Some Board majorities found potential “restraint” or “interference” with employee Section 7 rights when companies enacted HR policies requiring employees to act respectfully while at work. The policies were invalidated.
Other Boards reviewing similar policies have said that the risk of restraint or interference with employee rights is minimal and outweighed by employer concerns. The policies were upheld as valid.
Either way, the Courts would then rely on the Chevron doctrine and defer to the NLRB’s interpretation of the Act.
In previous blog posts in this Resources section, we have referred to these vacillating Board decisions as “policy oscillation,” or the “whiplash effect.” They are a natural result of our system of Board appointments, where the political party holding the presidency will – over time – ensure that a Board majority reflects the executive branch’s political leanings.
Chief Justice Roberts rejected the Chevron framework, holding that Congress expected the courts to handle interpretations of statutes with the benefit of briefing by the interested parties in litigation.
It will be interesting to see if the Loper case causes agencies to be more cautious in their actions, more moderate in their positions and more respectful of prior precedents since court scrutiny will be heightened.
Although we cannot predict the future effect of Loper, it is a sure bet that litigation challenging agency decisions will flourish. Potential litigants, who before felt helpless before the agency’s power, will now see an opportunity to challenge potential agency overreach or error.
Of course, the best way to mitigate litigation risks is to make sure we are not acting in ways that might generate lawsuits in the first place.
Employers with well-trained leadership teams will be insulated from most of the effects of new legal developments by ensuring workplaces characterized by consistency, fair treatment, employee engagement, and respect for all constituents in the labor-management relationship.
Let MARC help you with that.
Visit our Services page, or contact Gary Kleckner at 216-973-7323 and learn what we can do for you.
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