How the Chevron Decision Limits NLRB Influence

In Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the Supreme Court ended the Chevron Doctrine. While these cases did not directly involve the National Labor Relations Board (NLRB), they will have a profound effect on the NLRB moving forward.

Under Loper and Relentless, courts give deference to agencies, like the NLRB, and their findings of fact, given that there is evidence to support the findings. However, in light of the Chevron decision, courts will no longer give deference to agency resolutions regarding questions of law.

What does this mean going forward for the NLRB? Simply put, it will mean that the NLRB will no longer be able to engage in sea shifting legal changes when NLRB board members are selected by different political parties. It will also make it harder for the NLRB to expand its reach and issue new and novel remedies for violations of the National Labor Relations Act (NLRA).

Two examples bear discussion. First, the current general counsel of the NLRB is seeking to overturn a 75-year-old case named NLRB v. Babcock & Wilcox Co. that allows employers to hold so-called captive audience meetings with employees, on working time, to discuss the issue of unionization. Under Loper and Relentless, it is highly unlikely that a federal court would approve the NLRB overturning this precedent that touches on free speech.

Second, the general counsel has sought to impose new and expanded remedies under the NLRA. These remedies include increased monetary penalties, bargaining orders and letters of apology, among others. The purpose of the NLRA is restorative, not punitive. Again, it is highly unlikely that a federal court would approve these enhanced remedies under new case law. This conclusion is buttressed by the Supreme Court’s ruling in SEC v. Jarksey, where it found that the agency’s use of an administrative court system to impose penalties against securities law violators went against the Seventh Amendment’s guarantee of a trial by jury. Again, Jarskey did not directly involve the NLRB, but it is sure to be cited in future legal challenges against the NLRB.

Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce will undoubtedly lead to many challenges to NLRB decisions in the federal court system for years to come.

Read More: How the Chevron Decision Impacts State Courts and Agencies

Our affiliate blog, The Appellate Law Center, offers insights on the anticipated approaches that state courts will consider in changing their own doctrines and deferential standards of review following the Chevron decision. For more information please read “U.S. Supreme Court Overrules ‘Chevron Deference,’ Curtails Federal Agency Discretion: How the Decision Impacts State Courts and Agencies.”