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The federal labor board’s new Republican leadership is unlikely to rely on rulemaking as a central strategy in reversing Obama-era workplace policy decisions, despite renewed pressure by some in the management community to do so.
Some business advocates and former National Labor Relations Board members have suggested the board turn to regulations, rather than case decisions, to cement their positions on issues in a way that’s tougher for the NLRB to undo down the road. But other stakeholders say the process takes up too much time and effort, and is open to additional oversight from the public and Congress that the board may prefer to avoid.
The NLRB generally has the power to use case decisions and regulations to interpret labor law. The GOP gained majority control of the five-member board late last month. Conservative lawmakers and many in the business community have criticized for some time a number of decisions under President Barack Obama that they view as favoring workers over industry, and have made it clear that they want to see those moves reversed.
President Donald Trump has also joined the chorus of criticism over excessive federal regulations. It’s not clear, however, whether he favors using new regulations to revise federal labor law. Trump issued an executive order requiring agencies to eliminate two rules for every new one issued, but other agencies have gotten around the order by taking advantage of various exemptions.
“I believe that” rulemaking “could be a good way to go, at least on certain issues,” Ronald Meisburg, a former NLRB general counsel and Republican board member who is now special counsel at Hunton & Williams in Washington, told Bloomberg Law. Another former GOP board member, John Raudabaugh, said he would “encourage the board to consider more rulemaking.” Raudbabaugh teaches at Ave Maria Law School in Florida, a position funded by the National Right to Work Legal Defense Foundation.
Still, many acknowledged that the drawn out notice-and-comment rulemaking process makes it a stretch to think new regulations will figure significantly in the board’s approach to revamping labor law.
Wilma Liebman (D), who chaired the agency under Obama, said a shift to regulations is “doubtful.” The NLRB under Liebman promulgated two new rules, one of which was later struck down by a federal court.
“One reason I think the board never became a rulemaking agency is the process is so time-consuming and arduous, and the board also has all these cases to decide,” Liebman said. “Not only was the rulemaking itself time consuming and complicated, but then we had to defend the rule in court.”
Samuel Estreicher, law professor and director of the New York University School of Law’s Center for Labor and Employment, has been calling for the board to issue more rules for more than 30 years. Estreicher wrote an influential legal article in the 1980s on how labor policy oscillates with each change in administration, and arguing that the rulemaking process would allow for more public input and consistency in the law.
“I think it would be a good thing for the agency to say these are the seven issues we’re interested in, make it public, and also send the message that other issues will remain stable,” the Estreicher said.
Estreicher also said he isn’t particularly hopeful that the Trump board will be the one to fully adopt his proposals.
“I do know that some other agencies want to use rulemaking where the Obama administration had used advisory letters and things like that because they want to make policies that are harder to overturn,” he said. But “I’d be surprised if the board embarks on rulemaking.”
The professor raised an additional explanation for the NLRB’s historical aversion to the rulemaking process that the former board members didn’t.
“The main reason they don’t want to do it, I think, is they want to avoid the visibility of the rulemaking process,” Estriecher said. Rulemaking generally involves either oral hearings or a notice-and-comment period that allows for interested parties to participate in formulating the rule. Most stakeholders believe establishing or reversing policy through case decisions is often a simpler route.
“They’ve developed some immunity from congressional oversight,” Estreicher said. “Its pretty hard to call a board member in front of Congress and say ‘Why are you doing this?’” when they establish policy via case-law “because they can say ‘this is currently being adjudicated and I can’t talk about it.’”
Management-side practitioners have pointed to some policies they believe are ripe for overturning via rulemaking, including a case decision requiring employers to open their e-mail systems to employees’ organizing efforts; and a rule that allows for quicker union elections that was established during Liebman’s tenure.
The former chairwoman cited the process under her leadership as an indicator of the difficulties the new board would face if it wants to adopt a rulemaking strategy of establishing workplace laws.
The NLRB didn’t have enough confirmed members—thanks to political disputes over the nomination process—to issue decisions when Liebman opted to implement the election timing rule and another requiring employers to post notices of employee rights in the workplace.
The agency also lacked staff members knowledgeable about administrative law and promulgating rules.
“We brought in experts from other agencies that do a lot of rulemaking, conducted classes, and went through a very long process of educating ourselves and a cadre of people who’d know how to do things right,” she said.
One rule was finalized by the time Liebman’s term ended, and the second one was in its proposal phase. The agency received 7,000 comments in response to one notice of proposed rulemaking, and 65,000 in response to the other, Liebman told Bloomberg Law. There were also two days of public hearings.
“There’s a lot of interest and you actually have to go through all those comments and somehow acknowledge that you considered them in the final rulemaking,” the former board chairwoman said.
The rule requiring posted notices was struck down via a federal court challenge shortly after Liebman’s tenure.
“You have to allocate your time and resources” when they’re so limited “so I’m doubtful” that a major rulemaking effort “is actually going to happen,” she said.
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