The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform

Catherine L. Fisk, UC Irvine School of Law
Deborah C. Malamud


This article, which is part of the Duke Law Journal Administrative Law Symposium on the administrative law of the Bush Administration, examines both the recent and longer-term history of the National Labor Relations Board (NLRB) from the perspective of contemporary debates about administrative law. The NLRB during the Bush Administration made a number of significant and controversial policy changes, both in substantive law and in its enforcement process. This Article addresses those changes with the goal of increasing the coherence and legitimacy (legal and political) of NLRB policymaking. After examining how unresolved tensions between the Wagner Act and the Taft-Hartley Act are implicated in controversial decisions of the Bush Board and the structural obstacles the Board faces in attempting to make policy through adjudication, we argue that the policy conundrums cannot be resolved without recourse to the administrative law tools - including the use of social science expertise - the agency lacks. The Article concludes with suggestions for reform that do not depend on new legislation, including that (1) the NLRB be more holistic in its regulatory approach and rely on social science expertise and Department of Labor data in both adjudication and rulemaking; (2) the executive consider across-the-board reform of agencies that rely on adjudication; (3) Congress enhance its own policy analysis in the labor field; and (4) courts of appeals and the Supreme Court assimilate review of NLRB action into the way they review all agency action and be more coherent and consistent in deferring to agency action and in drawing the line between law, fact, and policy.