The "Obama" National Labor Relations Board: The Potential Use of Rulemaking to Enhance Union Organizing

Prepared on behalf of the U.S. Chamber of Commerce 
by Mel Haas, Steve Warren, Chuck Roberts
Constangy, Brooks, & Smith, LLP

Overview

With the appointments by President Obama of new Members Craig Becker, Mark Pearce, and Brian Hayes, the National Labor Relations Board temporarily returned to full strength. For the first time in more than eight years, Democrats now control the NLRB. In addition, President Obama will soon be able to appoint a new General Counsel of the Board. With these appointments in mind, and despite the inability of organized labor and its supporters to enact the Employee Free Choice Act, unions are finally optimistic that they will be able to increase union membership. They believe they are poised to secure most, if not all, of their primary goals to enhance union organizing efforts. They expect the Obama NLRB to utilize not only the adjudicative process to implement changes, but to also utilize the power of the Board and General Counsel to engage in substantive rulemaking and the issuance of non-substantive interpretive rules, policy statements, and guidelines on the Board’s practices and procedures.¹

Following enactment of the National Labor Relations Act in 1935, the initial members of the NLRB decided not to utilize their rulemaking authority to develop substantive law. Instead, the Board chose to formulate law and policy almost exclusively through the adjudication of unfair labor practice charges, i.e., through the decisions issued by the NLRB in individual cases. For the past seventy-five years, members of the NLRB appointed by Presidents of both parties have adhered to that position, with rare exceptions.²

Much has been written regarding prior decisions of the NLRB that may be reversed by the “Obama NLRB” in order to promote union organizing. However, the history of the NLRB clearly indicates that the Obama NLRB could have more long-term impact on labor relations in the United States by utilizing the Board’s authority to engage in substantive and non-substantive rulemaking. There are a multitude of NLRB decisions which overturn prior decisions, and they reflect the relative ease with which prior decisions of the Board can be reversed by subsequent members of the NLRB. In contrast, the substantive rule adopted by the NLRB in 1989 which established eight bargaining units for acute care hospitals remains in effect today.

¹ “Substantive rules,” sometimes referred to as “legislative” rules, are generally considered to be rules which implement a statute and have the force and effect of law. As such, if properly implemented they are legally binding on the agency, the public and the courts, until such rules are either modified or revoked. They are, of course, subject to challenge in the courts.

“Interpretative rules” are not legally binding on the public, but they are published by an agency to inform the public of the agency’s opinion of the meaning of the applicable statute and substantive rules.

“Policy statements” are not legally binding on the public, but they are published by an agency to inform the public how the agency intends to exercise its authority to enforce the law. Once published, they must be followed by the agency unless the agency explains the rationale for not following the policy.

“Guidelines on practice and procedure” are rules which describe the manner in which an agency functions and makes its determinations. They are not legally binding on the public.

² The NLRB’s own Information Quality Guidelines expressly recognizes this longstanding policy. In the section entitled “Information Disseminated through the Rulemaking Process – With Notice and Comment,” it states, “The NLRB rarely engages in rulemaking.” The exception will be discussed herein.