On Monday, the U.S. Supreme Court took up the question whether independent agencies, as they have been known for the last ninety years, can continue to exist. In Trump v. Slaughter, the Court heard arguments about whether Congress can constitutionally design an agency to be insulated from direct presidential control by restricting the president’s ability to remove agency leaders, or whether that structure undermines the separation of powers by encroaching on the president’s executive authority. Even prior to Monday’s arguments the Court had already sent a strong signal where it intends to go, finding preliminarily in a prior proceeding that the Trump administration was “likely to succeed” in its claim that the president has the authority to fire independent agency heads. The conservative majority’s questioning at oral argument only confirmed this likely outcome.
The case has huge ramifications for “watchdog” independent agencies across the government. The likely outcome will be particularly devastating for the National Labor Relations Board (NLRB), the independent agency charged with safeguarding workers’ right to form and join a union and act collectively in the workplace. The loss of independence and the intrusion of political favoritism into its day-to-day operations would compromise the agency’s basic functioning, and put workers’ rights in jeopardy.
While one might argue that labor law has been at a moment of reckoning for decades, the Supreme Court’s decision in Slaughter will truly call the question: can the NLRB continue to effectively safeguard workers’ rights in a future where it is no longer independent?
Many worker advocates argue that the answer is no: with an agency that has been plagued by delays and under-resourcing, and a law that is too weak to change bad behavior, the loss of the NLRB’s independence is the last straw—workers should turn elsewhere to try to rebuild their power. These advocates are turning to creative solutions such as “trigger laws” that would allow states to step in and protect workers’ right to organize and bargain collectively if the NLRB is not functioning properly, or laws that create industry-wide standards through sectoral labor boards such as the California Fast Food Council.
These are important conversations, generating creative and potentially effective ways to build worker power. They should accelerate in light of the crisis facing the NLRB. But these forward-thinking solutions face tough legal challenges, long paths to implementation, and could leave some workers behind, especially in states hostile to workers’ rights.
Thus, worker advocates must also focus on the question no one seems to be asking: What can be done in the near term to salvage the administration of federal labor law? While many provisions of the leading labor law reform proposal (the PRO Act) would be helpful to mitigate the impacts of politicization by strengthening workers’ rights and reinforcing the purposes of the National Labor Relations Act, the bill is not directly responsive to the agency’s loss of independence; moreover, such comprehensive reform is a heavy political lift in the current environment. If the Slaughter decision creates the opportunity for a “legislative moment,” worker advocates must also coalesce around a targeted and politically feasible proposal to preserve the neutral adjudication of labor disputes for the immediate future.
Congress should empower workers to enforce their own labor law rights outside the NLRB.
The independence of the NLRB has always been particularly critical because it is the only place workers can turn when they have been retaliated against for trying to form a union or speaking up collectively about unfair treatment on the job. Many employment laws (such as those barring workplace discrimination, for example) allow workers to directly file their own lawsuits when their rights have been violated, either immediately, or after the relevant agency declines to pursue their case. However, workers have no private right of action under the NLRA—their only option is to file a charge with the agency, and if the agency (specifically the general counsel, who serves as the agency’s prosecutor) declines to pursue their case, workers have no other recourse.
This exclusive remedial scheme becomes far more problematic with an agency that lacks real independence. If the general counsel’s office is acting under the direction of the White House, it might refuse to pursue cases against presidential allies, or more aggressively pursue prosecution of charges brought against political enemies. White House interference with prosecutorial authority for political favoritism or retaliation is hardly an idle possibility in this administration. Similarly, even if a worker’s case makes it to the NLRB for adjudication, presidential interference could mean that the NLRB’s decision is based on political considerations, rather than the law and the record in the case, denying the parties due process of law.
Giving workers a private right of action.
Giving workers the ability to pursue their own labor law claims in federal court—as several scholars have suggested through the years—would provide a viable alternative to a politicized NLRB. There are real advantages to this approach. First, from a practical perspective, it is a simple change that can probably be done in a two-page bill. (Indeed, this change is included in the PRO Act and takes up less than a page of that large bill.) Creating a private right of action doesn’t require any potentially controversial changes to the substance of the NLRA’s protections, and creates a familiar remedial scheme that is aligned with many other employment laws.
A private right of action ensures that workers who believe their rights have been violated will get a fair opportunity to have their claims heard by an adjudicator, eliminating the roadblock presented by the general counsel’s unreviewable prosecutorial discretion. It also gives people an alternative forum to pursue their claims if the NLRB has been politicized to the point where it is not neutral or capable of providing due process.
Private litigation also has the potential to provide a quicker remedy for workers seeking to vindicate their rights. While employment cases don’t exactly rocket through the federal court system, going to federal court could well be faster than the current system at the NLRB, which is plagued by massive delays. Right now, NLRB orders are not self-enforcing, which means that when the agency investigates and adjudicates a case—which often takes months or years—the decision has no immediate legal effect. Unless the employer voluntarily complies or agrees to settle the case, the NLRB has to go to a federal court of appeals to get the decision enforced (if the employer does not appeal first). Thus, most cases with high stakes or cases raising significant legal issues are likely to end up in a federal court of appeals anyway—a private right of action might allow them to get there sooner. (Indeed, if cases presenting significant legal questions go straight to federal court, this might actually be a positive development for the NLRB’s operations—if its caseload shifts to lower-stakes cases, it could reduce the level of political scrutiny the NLRB faces and reduce the potential for political interference at the agency, making it a more viable and efficient forum for workers and employers to turn to with routine disputes.)
Allowing workers to go to federal court themselves would also give them more control over where their claim is litigated—right now, appeals of significant NLRB decisions end up in federal court, but employers who have violated the law forum-shop when appealing an adverse NLRB decision (or seeking other judicial relief) to try to find a court system that may be more hostile to the NLRB or the NLRA. Workers have more limited venue options for filing an initial case, reducing the potential for forum-shopping.
There are obviously details that would need to be worked out in crafting a private right of action under the NLRA. For example, federal courts would probably be best suited to consider claims for discrimination related to union or other protected activity—claims under Sections 8(a)(1) and 8(a)(3) of the NLRA—which are akin to other types of employment law claims familiar to federal courts. By contrast, charges related to the collective bargaining process—under Section 8(a)(5) of the NLRA—or challenges related to the union election process are more likely to require an adjudicator with a specialized background in labor relations, and might benefit from staying exclusively at the NLRB. Significantly, the law would also need to provide for attorney’s fees so that workers (who are only entitled to backpay and other make-whole remedies under the NLRA) would be able to hire attorneys willing to take their cases.
Certainly, there are potential drawbacks as well. It may be hard for workers or unions with limited resources to bring cases, even if attorney’s fees are potentially available at the end of a successful proceeding, as the agency would no longer bear the costs of investigating and litigating claims filed in federal court. Unions and workers may also be wary of federal courts because these courts have much more liberal discovery rules than administrative investigations by the NLRB, which could put confidential union strategies at risk, or expose the identity of union supporters who fear retaliation. Finally, there is a lack of labor law expertise in the federal judiciary—and, arguably, a significant level of judicial hostility toward labor unions—that could result in bad decisions shifting the substance of labor law away from the important statutory goals of the NLRA. (Of course, bad court decisions happen in the current system anyway, they just come years later when NLRB decisions are being appealed.)
Creating a new labor court system.
Some of these drawbacks could be mitigated by a more comprehensive reform proposal. Commentators from opposite ends of the ideological spectrum have proposed creating entirely new labor court systems. A proposal from NYU law professor Samuel Estreicher and management-side practitioners Roger King and David Sherwyn would create a new labor court that still falls within the executive branch, has six members (rather than the current five) who serve longer terms, and is equally divided between Democratic, Republican, and Independent backgrounds. NLRA cases would be prosecuted by a general counsel working out of an entirely separate agency, who would be politically accountable to the president in the same manner as other executive branch officials. The labor court would be purely adjudicative, with no rulemaking or other executive authority, which might allow it to remain independent—and its adjudicators insulated from removal by the president—even in light of the impending decision in Slaughter. Notably, the Estreicher/King/Sherwyn proposal would also create a private right of action if cases sit at the newly-designed labor court for more than a year, suggesting some possible interest in this approach from the conservative side of the political spectrum.
A more progressive proposal from union lawyer Andrew Strom would create new labor courts within the judicial branch, where cases are initially brought to federal judges with specialized expertise in labor matters, and then appealed to a federal labor circuit. This system would be akin to the specialized trial and appellate courts that hear claims against the United States, the Court of Federal Claims and the Court of Appeals for the Federal Circuit. Judges would be appointed for life, and insulated from political influence in the same manner as other federal judges.
While Strom’s proposal in particular seems like a promising idea (the Estreicher/King/Sherwyn proposal may be less viable, as it is an open question how much independent adjudication within the executive branch will survive after Slaughter), shifting to specialized labor courts would involve comprehensive legislative change and—in the case of the Strom proposal—the creation of an entirely new court system. Such a massive reinvention of federal labor adjudication may be a beneficial reform, but, unfortunately, it is not a politically feasible near-term response to a bad Court decision in Slaughter.
Looking ahead.
In a world where independent agencies such as the NLRB are no longer independent, it is critically important that workers have somewhere to turn to protect their rights on the job. Indeed, workers and employers alike need a fair and accessible forum for resolving disputes that would otherwise potentially disrupt the workplace or even the economy as a whole. Until and unless more comprehensive labor law reform can be achieved, giving workers the ability to enforce the NLRA’s protections on their own—while certainly not a panacea to build worker power—may be the best available option to preserve people’s voice on the job and maintain the benefits of collective bargaining.
Tags: labor unions, labor law, workers rights, national labor relations board
How to Save Labor Law from Slaughter
On Monday, the U.S. Supreme Court took up the question whether independent agencies, as they have been known for the last ninety years, can continue to exist. In Trump v. Slaughter, the Court heard arguments about whether Congress can constitutionally design an agency to be insulated from direct presidential control by restricting the president’s ability to remove agency leaders, or whether that structure undermines the separation of powers by encroaching on the president’s executive authority. Even prior to Monday’s arguments the Court had already sent a strong signal where it intends to go, finding preliminarily in a prior proceeding that the Trump administration was “likely to succeed” in its claim that the president has the authority to fire independent agency heads. The conservative majority’s questioning at oral argument only confirmed this likely outcome.
The case has huge ramifications for “watchdog” independent agencies across the government. The likely outcome will be particularly devastating for the National Labor Relations Board (NLRB), the independent agency charged with safeguarding workers’ right to form and join a union and act collectively in the workplace. The loss of independence and the intrusion of political favoritism into its day-to-day operations would compromise the agency’s basic functioning, and put workers’ rights in jeopardy.
While one might argue that labor law has been at a moment of reckoning for decades, the Supreme Court’s decision in Slaughter will truly call the question: can the NLRB continue to effectively safeguard workers’ rights in a future where it is no longer independent?
Many worker advocates argue that the answer is no: with an agency that has been plagued by delays and under-resourcing, and a law that is too weak to change bad behavior, the loss of the NLRB’s independence is the last straw—workers should turn elsewhere to try to rebuild their power. These advocates are turning to creative solutions such as “trigger laws” that would allow states to step in and protect workers’ right to organize and bargain collectively if the NLRB is not functioning properly, or laws that create industry-wide standards through sectoral labor boards such as the California Fast Food Council.
These are important conversations, generating creative and potentially effective ways to build worker power. They should accelerate in light of the crisis facing the NLRB. But these forward-thinking solutions face tough legal challenges, long paths to implementation, and could leave some workers behind, especially in states hostile to workers’ rights.
Thus, worker advocates must also focus on the question no one seems to be asking: What can be done in the near term to salvage the administration of federal labor law? While many provisions of the leading labor law reform proposal (the PRO Act) would be helpful to mitigate the impacts of politicization by strengthening workers’ rights and reinforcing the purposes of the National Labor Relations Act, the bill is not directly responsive to the agency’s loss of independence; moreover, such comprehensive reform is a heavy political lift in the current environment. If the Slaughter decision creates the opportunity for a “legislative moment,” worker advocates must also coalesce around a targeted and politically feasible proposal to preserve the neutral adjudication of labor disputes for the immediate future.
Congress should empower workers to enforce their own labor law rights outside the NLRB.
The independence of the NLRB has always been particularly critical because it is the only place workers can turn when they have been retaliated against for trying to form a union or speaking up collectively about unfair treatment on the job. Many employment laws (such as those barring workplace discrimination, for example) allow workers to directly file their own lawsuits when their rights have been violated, either immediately, or after the relevant agency declines to pursue their case. However, workers have no private right of action under the NLRA—their only option is to file a charge with the agency, and if the agency (specifically the general counsel, who serves as the agency’s prosecutor) declines to pursue their case, workers have no other recourse.
This exclusive remedial scheme becomes far more problematic with an agency that lacks real independence. If the general counsel’s office is acting under the direction of the White House, it might refuse to pursue cases against presidential allies, or more aggressively pursue prosecution of charges brought against political enemies. White House interference with prosecutorial authority for political favoritism or retaliation is hardly an idle possibility in this administration. Similarly, even if a worker’s case makes it to the NLRB for adjudication, presidential interference could mean that the NLRB’s decision is based on political considerations, rather than the law and the record in the case, denying the parties due process of law.
Giving workers a private right of action.
Giving workers the ability to pursue their own labor law claims in federal court—as several scholars have suggested through the years—would provide a viable alternative to a politicized NLRB. There are real advantages to this approach. First, from a practical perspective, it is a simple change that can probably be done in a two-page bill. (Indeed, this change is included in the PRO Act and takes up less than a page of that large bill.) Creating a private right of action doesn’t require any potentially controversial changes to the substance of the NLRA’s protections, and creates a familiar remedial scheme that is aligned with many other employment laws.
A private right of action ensures that workers who believe their rights have been violated will get a fair opportunity to have their claims heard by an adjudicator, eliminating the roadblock presented by the general counsel’s unreviewable prosecutorial discretion. It also gives people an alternative forum to pursue their claims if the NLRB has been politicized to the point where it is not neutral or capable of providing due process.
Private litigation also has the potential to provide a quicker remedy for workers seeking to vindicate their rights. While employment cases don’t exactly rocket through the federal court system, going to federal court could well be faster than the current system at the NLRB, which is plagued by massive delays. Right now, NLRB orders are not self-enforcing, which means that when the agency investigates and adjudicates a case—which often takes months or years—the decision has no immediate legal effect. Unless the employer voluntarily complies or agrees to settle the case, the NLRB has to go to a federal court of appeals to get the decision enforced (if the employer does not appeal first). Thus, most cases with high stakes or cases raising significant legal issues are likely to end up in a federal court of appeals anyway—a private right of action might allow them to get there sooner. (Indeed, if cases presenting significant legal questions go straight to federal court, this might actually be a positive development for the NLRB’s operations—if its caseload shifts to lower-stakes cases, it could reduce the level of political scrutiny the NLRB faces and reduce the potential for political interference at the agency, making it a more viable and efficient forum for workers and employers to turn to with routine disputes.)
Allowing workers to go to federal court themselves would also give them more control over where their claim is litigated—right now, appeals of significant NLRB decisions end up in federal court, but employers who have violated the law forum-shop when appealing an adverse NLRB decision (or seeking other judicial relief) to try to find a court system that may be more hostile to the NLRB or the NLRA. Workers have more limited venue options for filing an initial case, reducing the potential for forum-shopping.
There are obviously details that would need to be worked out in crafting a private right of action under the NLRA. For example, federal courts would probably be best suited to consider claims for discrimination related to union or other protected activity—claims under Sections 8(a)(1) and 8(a)(3) of the NLRA—which are akin to other types of employment law claims familiar to federal courts. By contrast, charges related to the collective bargaining process—under Section 8(a)(5) of the NLRA—or challenges related to the union election process are more likely to require an adjudicator with a specialized background in labor relations, and might benefit from staying exclusively at the NLRB. Significantly, the law would also need to provide for attorney’s fees so that workers (who are only entitled to backpay and other make-whole remedies under the NLRA) would be able to hire attorneys willing to take their cases.
Certainly, there are potential drawbacks as well. It may be hard for workers or unions with limited resources to bring cases, even if attorney’s fees are potentially available at the end of a successful proceeding, as the agency would no longer bear the costs of investigating and litigating claims filed in federal court. Unions and workers may also be wary of federal courts because these courts have much more liberal discovery rules than administrative investigations by the NLRB, which could put confidential union strategies at risk, or expose the identity of union supporters who fear retaliation. Finally, there is a lack of labor law expertise in the federal judiciary—and, arguably, a significant level of judicial hostility toward labor unions—that could result in bad decisions shifting the substance of labor law away from the important statutory goals of the NLRA. (Of course, bad court decisions happen in the current system anyway, they just come years later when NLRB decisions are being appealed.)
Creating a new labor court system.
Some of these drawbacks could be mitigated by a more comprehensive reform proposal. Commentators from opposite ends of the ideological spectrum have proposed creating entirely new labor court systems. A proposal from NYU law professor Samuel Estreicher and management-side practitioners Roger King and David Sherwyn would create a new labor court that still falls within the executive branch, has six members (rather than the current five) who serve longer terms, and is equally divided between Democratic, Republican, and Independent backgrounds. NLRA cases would be prosecuted by a general counsel working out of an entirely separate agency, who would be politically accountable to the president in the same manner as other executive branch officials. The labor court would be purely adjudicative, with no rulemaking or other executive authority, which might allow it to remain independent—and its adjudicators insulated from removal by the president—even in light of the impending decision in Slaughter. Notably, the Estreicher/King/Sherwyn proposal would also create a private right of action if cases sit at the newly-designed labor court for more than a year, suggesting some possible interest in this approach from the conservative side of the political spectrum.
A more progressive proposal from union lawyer Andrew Strom would create new labor courts within the judicial branch, where cases are initially brought to federal judges with specialized expertise in labor matters, and then appealed to a federal labor circuit. This system would be akin to the specialized trial and appellate courts that hear claims against the United States, the Court of Federal Claims and the Court of Appeals for the Federal Circuit. Judges would be appointed for life, and insulated from political influence in the same manner as other federal judges.
While Strom’s proposal in particular seems like a promising idea (the Estreicher/King/Sherwyn proposal may be less viable, as it is an open question how much independent adjudication within the executive branch will survive after Slaughter), shifting to specialized labor courts would involve comprehensive legislative change and—in the case of the Strom proposal—the creation of an entirely new court system. Such a massive reinvention of federal labor adjudication may be a beneficial reform, but, unfortunately, it is not a politically feasible near-term response to a bad Court decision in Slaughter.
Looking ahead.
In a world where independent agencies such as the NLRB are no longer independent, it is critically important that workers have somewhere to turn to protect their rights on the job. Indeed, workers and employers alike need a fair and accessible forum for resolving disputes that would otherwise potentially disrupt the workplace or even the economy as a whole. Until and unless more comprehensive labor law reform can be achieved, giving workers the ability to enforce the NLRA’s protections on their own—while certainly not a panacea to build worker power—may be the best available option to preserve people’s voice on the job and maintain the benefits of collective bargaining.
Tags: labor unions, labor law, workers rights, national labor relations board