Defending the NLRB: Improving the Agency’s Success in the Federal Courts of Appeal

Commentators have made innumerable recommendations to improve the National Labor Relations Board’s administration of the National Labor Relations Act. Yet one subject that has been largely ignored in these discussions is the fact that no matter how good the administrative enforcement of the NLRA is, or could be, it will mean very little if the NLRB cannot defend its decisions in the courts of appeals. The stakes of this inquiry are high. Because the NLRB cannot enforce its own orders, any losing party can delay compliance with a Board order by seeking review before an appellate court. This delay itself can substantially undermine employees’ labor rights - particularly when a case involves representational issues, in which employees’ support for a union often diminishes as time passes. Yet the problems associated with delay are exacerbated if losing parties believe they have a good chance of winning before the courts. Although some parties may challenge a Board order no matter their chances, others may seriously weigh the costs and benefits of further litigation. For these parties, the prospect of reversing a Board order may lead to additional challenges, more delay, and ultimately an inability of employees to enjoy their labor rights. This article addresses this issue by proposing several reforms intended to improve the Board’s success in the courts of appeals. These reforms include attempting to improve the format and substance of NLRB decisions, increasing the emphasis on the standard of review, considering limited types of forum shopping, increasing the use of rulemaking, reducing delay, and requesting more injunctive relief. None of these strategies, if enacted, would be a silver bullet that would solve all of the difficulties that the Board faces in court. In the aggregate, however, they could improve the Board’s standing in the eyes of federal appellate courts, thereby improving the Board’s long-term success. Moreover, a renewed focus on the need to win before the courts of appeals could enhance the Board’s success in the short term by improving some of its individual decisions, thereby making them better candidates for court enforcement.